Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 shares of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”), (a) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and (b) no shares of Company Preferred Stock were issued or outstanding. All issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock of the Company is entitled to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens. (b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests. (c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws. (d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Independence Realty Trust, Inc), Merger Agreement (Trade Street Residential, Inc.)
Capital Structure. (ai) The As of the date hereof, the authorized capital stock of the Company consists consisted of 1,000,000,000 55,000,000 shares of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”), (a) 36,809,108 which 5,739,378 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and (b) no 445,882 shares were held in the treasury of Company Preferred Stock were issued or outstandingthe Company. All issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable, and no class free of capital stock any preemptive rights. Section 3.2(b)(i)(1) of the Company is entitled to preemptive rights. Except Disclosure Letter contains a correct and complete list as set forth aboveof the date hereof of the number of outstanding Company Stock Options, at the close exercise price of business on all Company Stock Options and the Measurement Date, no number of shares of capital stock or other voting securities Company Common Stock issuable at such exercise price. Section 3.2(b)(i)(2) of the Company were issued, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, Disclosure Letter contains a correct and complete list as of the Measurement Datedate hereof of the number of restricted stock units issued under the Directors Deferred Plan.
(ii) Except as otherwise set forth in this Section 3.2(b), there were are no securities, options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind outstanding or to which the Company or any Company Subsidiary was of its Subsidiaries is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock voting securities of or other equity interest in, the Company or any of any Company Subsidiary its Subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners outstanding obligations of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiaryof its Subsidiaries to repurchase, (ii) voting trusts, proxies redeem or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of otherwise acquire any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual of its Subsidiaries. There are no outstanding obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor of its Subsidiaries to provide funds or make any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to investment in any of its capital stock Subsidiaries or any other equity interests.
(c) Except as set forth in Section 3.02(c) of entity, nor has the Company Disclosure Letter, all or any of the outstanding shares of capital its Subsidiaries granted or agreed to grant to any Person any stock appreciation rights or other similar equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Lawsbased rights.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 2 contracts
Sources: Merger Agreement (Enstar Group Inc), Merger Agreement (Castlewood Holdings LTD)
Capital Structure. (ai) The authorized capital stock of the Company and the authorized capital stock of Gateway consists solely of 1,000,000,000 the shares described on Section 3.1(b)(i) of the Disclosure Schedule, of which 500 shares of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”), (a) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and (b) no shares of Company Preferred Stock were issued or outstanding. All issued and outstanding shares of the capital common stock of the Company and 38,150 shares of common stock of Gateway are issued and outstanding. All of the Company Shares and all of the Gateway Shares are duly authorized, validly issued, fully paid and non-assessablenonassessable. As of the Date of this Agreement, and no class at all times up to and including the Closing Date, Seller will be the sole record and beneficial direct owner of capital stock all of the Company is entitled Shares, and the Company will be the sole record and beneficial direct owner of all of the Gateway Shares, each free and clear of all Liens and Preemptive Rights, except for Liens related to preemptive rights. the pledge of the Company Shares to Comerica Bank, which liens will be released on the Closing Date.
(ii) Except as set forth abovein Section 3.1(b)(ii) of the Disclosure Schedule,
(A) Neither of the Transferred Companies has issued, at nor currently has outstanding, any bonds, debentures, notes, debt instruments or other indebtedness;
(B) there are no outstanding or authorized (1) options, warrants, redemption rights, repurchase rights, purchase rights, subscription rights, conversion rights, exchange rights, or other Contracts or commitments that could require Seller or its Affiliates (including either of the close Transferred Companies) to purchase or issue, sell, or otherwise cause to become outstanding, as applicable, any capital stock or equity interests of business on either of the Measurement DateTransferred Companies; or (2) stock or equity appreciation, phantom stock or equity, profit participation, or similar rights with respect to the Transferred Companies ((1) and (2) collectively, “Preemptive Rights”);
(C) there are no (1) voting trusts, proxies or other agreements or understandings with respect to the voting of any shares of capital stock or other voting securities equity interests of either of the Company were issued, reserved for issuance or outstanding. There are no Transferred Companies; (2) bonds, debentures, notes notes, debt instruments or other indebtedness of the Company or any Company Subsidiary Transferred Companies having the right to vote (or convertible into, or exchangeable for, for securities having the right to vote) on any matters on which the stockholders or equity holders of either of the Company Common StockTransferred Companies may vote; (3) securities or obligations exercisable or exchangeable for, or convertible into, any capital stock or equity interests of either of the Company OP Units Transferred Companies; or (4) agreements, commitments or understandings of any nature whatsoever, fixed or contingent, that directly or indirectly obligates Seller or any of its Affiliates (including the general partnership interests Transferred Companies) to grant, offer or enter into any of the foregoing; and
(D) except for portfolio investments made in the Company OP may vote (“Voting Company Debt”). Except as set forth aboveOrdinary Course of Business, as neither of the Measurement DateTransferred Companies (x) owns, there were no of record or beneficially, directly or indirectly, any membership interest, common stock, any other voting stock or similar equity securities (including options, warrants, rights, convertible commitments or exchangeable agreements to acquire such equity securities, commitments, or undertakings ) of any kind to which the Company Person or any Company Subsidiary was a party right (contingent or by which any of them was bound (iotherwise) obligating to acquire the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt same; or (iiy) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits basedotherwise possesses, directly or indirectly, on the value power to direct or price of, any capital stock of, cause the direction of the management or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting policies of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interestsPerson.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 2 contracts
Sources: Stock Purchase Agreement (Atlas Financial Holdings, Inc.), Stock Purchase Agreement (Atlas Financial Holdings, Inc.)
Capital Structure. (a) The Except as set forth in Schedule 3.3 of the Company Disclosure Schedule, the authorized capital stock of the Company consists of 1,000,000,000 shares 50,000,000 Shares of Common Stock, $.10 par value (the Company "Common Stock Stock") and 50,000,000 10,000,000 shares of preferred stock, par value $0.01 1.00 per share (the “Company "Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”Shares"). At As of the close of business on May 8, 2015 (the “Measurement Date”)date hereof, (ai) 36,809,108 10,627,875 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and no Preferred Shares were issued and outstanding, (bii) no 1,647,995 shares of Company Preferred Common Stock were reserved for issuance upon exercise of Options pursuant to Option Plans, (iii) Options were outstanding exercisable into 886,510 shares of Common Stock with an average exercise price of $17.74 and (iv) 203,365 shares of Common Stock were issued or outstanding. All issued and outstanding shares of are held in the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock of the Company is entitled to preemptive rightsCompany's treasury. Except as set forth aboveabove or on Schedule 3.3 of the Company Disclosure Schedule, at as of the close date of business on the Measurement Date, this Agreement: (i) no shares of capital stock or other voting securities of the Company were are issued, reserved for issuance or outstanding. There ; (ii) there are no stock appreciation rights, phantom stock units, restricted stock grants, contingent stock grants or Benefit Plans which grant awards of any of the foregoing, and there are no other outstanding contractual rights to which the Company is a party the value of which is based on the value of Shares; (iii) all outstanding shares of capital stock of the Company are, and all Shares which may be issued will be, when so issued, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights; and (iv) there are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders stockholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”)vote. Except as set forth above, as of the Measurement Datedate of this Agreement, there were are no outstanding securities, options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was of its Subsidiaries is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock voting securities of or other equity interest in, the Company or of any Company Subsidiary of its Subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners outstanding contractual obligations of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiaryof its Subsidiaries, (ii) voting truststo repurchase, proxies redeem or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of otherwise acquire any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) Subsidiaries. Schedule 3.3 of the Company Disclosure LetterSchedule accurately sets forth information regarding the current exercise price, all date of grant and number of outstanding Options for each holder of Options pursuant to any Option Plan. Following the Effective Time, no holder of Options will have any right to receive shares of common stock of the outstanding shares Surviving Corporation upon exercise of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities LawsOptions.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 2 contracts
Sources: Merger Agreement (Welbilt Corp), Merger Agreement (Scotsman Industries Inc)
Capital Structure. (a) The As of the date hereof, the authorized capital stock of the Company consists of 1,000,000,000 40,000,000 shares of the Company Common Stock and 50,000,000 5,000,000 shares of preferred stock, par value $0.01 0.001 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8June 24, 2015 2014: (the “Measurement Date”), (aA) 36,809,108 16,392,503 shares of Company Common Stock were issued and outstanding, including no Company Restricted Shares; (which includes 290,566 B) 2,816,376 shares of Company Restricted Stock) Common Stock were issued and reserved for issuance pursuant to the Company Stock Plans, of which 1,621,125 shares of Company Common Stock were subject to issuance upon exercise of outstanding and Company Stock Options; (bC) no shares of Company Preferred Stock were issued or and outstanding; and (D) no Voting Debt was issued and outstanding. All issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock of the Company is entitled to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no The term “Voting Debt” means bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary obligations having the right to vote (or convertible into, or exchangeable for, into securities having the right to vote) on any matters on which holders stockholders of the Company may vote. All outstanding shares of Company Common StockStock are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of capital stock of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly-owned Subsidiary of the Company, free and clear of all liens, pledges, charges, encumbrances, claims, mortgages, deeds of trust, security interests, restrictions, rights of first refusal, defects in title, or other burdens, options or encumbrances of any kind (“Encumbrances”), except as set forth on Schedule 3.1(b) of the Company Disclosure Schedule. Except for the Subsidiaries set forth on Schedule 3.1(a) of the Company Disclosure Schedule, the Company OP Units does not own, directly or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth aboveindirectly, as of the Measurement Datedate hereof, any capital stock of, or other voting securities or equity interests in, any corporation, partnership, joint venture, association or other entity. Except for awards granted pursuant to the Company Stock Plans, there were are outstanding: (1) no shares of capital stock, Voting Debt or other voting securities of the Company; (2) no securities of the Company or any Subsidiary of the Company convertible into or exchangeable or exercisable for shares of capital stock, Voting Debt or other voting securities of the Company or any Subsidiary of the Company; and (3) no options, warrants, calls, subscriptions, rights (including preemptive rights), convertible commitments or exchangeable securities, commitments, or undertakings of any kind agreements to which the Company or any Subsidiary of the Company Subsidiary was is a party or by which it is bound in any of them was bound (i) case obligating the Company or any Subsidiary of the Company Subsidiary to issue, deliver deliver, sell, purchase, redeem or sellacquire, or cause to be issued, delivered delivered, sold, purchased, redeemed or soldacquired, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of Voting Debt or other equity interest in, voting securities of the Company or of any Company Subsidiary of the Company, or any Voting Company Debt or (ii) obligating the Company or any Subsidiary of the Company Subsidiary to issue, grant, extend or enter into any such option, warrant, securitycall, right, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuableagreement. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letterstockholder agreements, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, voting trusts or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was of its Subsidiaries is a party or by which the Company or any Company Subsidiary was of its Subsidiaries is bound with respect relating to the voting of any shares of the capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interestsCompany.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 2 contracts
Sources: Merger Agreement (Owens & Minor Inc/Va/), Agreement and Plan of Merger (Medical Action Industries Inc)
Capital Structure. (a) The authorized capital stock of the Company STH consists of 1,000,000,000 ten million (10,000,000) shares of the Company STH Common Stock and 50,000,000 one million (1,000,000) shares of preferred stockClass A Preferred Stock, $1.00 par value $0.01 per share (the “Company "STH Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”"). At the close As of business on May 8March 31, 2015 (the “Measurement Date”)1998, (a) 36,809,108 there were 4,840,000 shares of Company STH Common Stock (which includes 290,566 issued and outstanding, and no shares of Company Restricted Stock) were STH Preferred Stock are issued and outstanding and outstanding, (b) no shares of Company STH Common Stock or STH Preferred Stock were issued held by STH in its treasury, and (c) 139,200 shares of STH Common Stock were issuable upon the exercise of outstanding options (the "STH Options") under the STH Stock Option Plan. STH has no outstanding bonds, debentures, notes or outstandingother obligations the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the stockholders of STH on any matter. All such issued and outstanding shares of the capital stock of the Company STH Common Stock are duly authorized, validly issued, fully paid paid, nonassessable and non-assessablefree of preemptive rights. Except (i) for the STH Options and (ii) as provided on Schedule 5.3 hereto, and no class there are not at the date of this Agreement any existing options, warrants, calls, subscriptions, convertible securities, or other rights, agreements or commitments which obligate STH or any of the STH Subsidiaries to issue, transfer or sell any shares of capital stock of the Company is entitled to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock STH or other voting securities any of the Company were issued, reserved for issuance or outstandingSTH Subsidiaries. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary STH having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders stockholders of STH may vote. There are no outstanding contractual obligations of STH or any of the Company Common StockSTH Subsidiaries to repurchase, the Company OP Units redeem or the general partnership otherwise acquire any shares of capital stock of STH or any capital stock, voting securities or other securities or other ownership interests in any of the Company OP may vote STH Subsidiaries or make any material investment (“Voting Company Debt”in the form of a loan, capital contribution or otherwise) in any person (other than one of the STH Subsidiaries). Except as set forth aboveprovided in Section 4.1(d), as of after the Measurement DateEffective Time, there were PMCT will have no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary obligation to issue, deliver transfer or sell, or cause to be issued, delivered or sold, additional sell any shares of capital stock or other equity interests in, interest of STH or PMCT pursuant to any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units STH Benefit Plan (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable5.12).
Appears in 2 contracts
Sources: Merger Agreement (Supertel Hospitality Inc), Merger Agreement (PMC Commercial Trust /Tx)
Capital Structure. (ai) The As of immediately prior to the Initial Closing, the authorized capital stock of the Company Issuer consists of 1,000,000,000 32,000,000 shares of Common Stock, 25,000,000 of which are designated Class A Common Stock, 9,999,980 of which are issued and outstanding, and 6,000,000 of which are designated Class B Common Stock, 1,283,000 of which are issued and outstanding, and 1,000,000 shares of Preferred Stock, 125,000 of which are designated Class A Preferred Stock, 125,000 of which are issued and outstanding, and 5,000 of which are designated Class B Preferred Stock, 2,850 of which are issued and outstanding. Neither the Company Class A Preferred Stock nor the Class B Preferred Stock is convertible into Common Stock. The rights, preferences, privileges and restrictions of the Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”), (a) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and (b) no shares of Company Preferred Stock were issued or outstandingare as stated in the Certificate of Incorporation. All issued and outstanding shares of the capital stock outstanding Equity securities of the Company Issuer and each of its Subsidiaries are duly authorized, validly issued, fully paid and non-assessable, assessable free and no class clear of capital stock of the Company is entitled to any preemptive rightsor similar right. Except as set forth aboveon Schedule 4.1(k)(i) or in the Transaction Documents, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There there are no bondslock-up or market standoff agreements and no outstanding rights, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect for the purchase or acquisition from the Issuer of any securities of the Issuer nor are there any commitments to issue or execute any such rights, options, warrants, preemptive rights or rights of first refusal. Neither the Issuer nor any of its Subsidiaries is obligated to issue or sell any of its Equity securities to any Person, except as set forth on Schedule 4.1(k)(i) hereto or pursuant to the Transaction Documents. There are no outstanding rights or obligations of the Issuer to repurchase or redeem any of its Equity securities, except as set forth in the Certificate of Incorporation or Schedule 4.1(k)(i). All outstanding securities have been issued in compliance with state and federal securities laws. Except as set forth in the 2005 Restricted Stock Plan (as described in Section 4.1(k)(ii) below), none of the Issuer’s stock purchase agreements or restricted stock documents contains a provision for acceleration of vesting (or lapse of a repurchase right) upon the occurrence of any event or combination of events.
(ii) The Issuer has also reserved an aggregate of 1,500,000 shares of Common Stock for issuance to employees and consultants pursuant to the Issuer’s 2005 Restricted Stock Plan, under which (i) 1,283,000 shares have been issued and are reflected in the currently outstanding Common Stock, and (ii) 217,000 shares remain available for future grant. Except as set forth in this Agreement, there are no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, for the purchase or acquisition from the Issuer of any shares of its capital stock or any other equity interestsagreements to participate in the profits of the Issuer. Except as set forth on Schedule 4.1(k)(ii), all shares issued pursuant to the 2005 Restricted Stock Plan vest and are subject to repurchase, according to the terms and conditions set forth in the 2005 Restricted Stock Plan.
(ciii) Except as set forth in Section 3.02(con Schedule 4.1(k)(iii), the Issuer has no outstanding debt for borrowed money. Since July 12, 2005, no interest has been paid on any of the Issuer’s outstanding debt for borrowed money held by Affiliates of the Issuer.
(iv) Schedule 4.1(k)(iv) sets forth (A) a true and complete list of the equity holders (other than the holders of the Issuer’s restricted stock issued pursuant to the 2005 Restricted Stock Plan) of the Company Disclosure LetterIssuer, all which list contains the name and number of securities held by each such equity holder, (B) a true and complete list of each secured debt holder of the outstanding Issuer, other than secured debt holders of purchase money indebtedness, (C) a true and complete list of the unsecured debt of the Issuer held by Affiliates of the Issuer, (D) a true and complete list of the debt of the Issuer held by ▇▇▇▇▇▇ (▇▇▇) ▇▇▇▇▇▇▇ and his Affiliates, and (E) a table representing the capitalization of the Issuer immediately following the Closing of the transactions contemplated by this Agreement. The Issuer has provided the Purchasers a true and correct list of each holder of the Issuer’s restricted stock issued pursuant to the 2005 Restricted Stock Plan, which list contains the name and number of shares held by each such holder.
(v) Except as set forth on Schedule 4.1(k)(v), none of capital stock the Issuer’s securities has been issued or sold pursuant to a transaction in which any person was paid compensation for finding, introducing, arranging for or procuring the sale of the Issuer’s securities. Except as set forth on Schedule 4.1(k)(iv), no person has been paid a success fee or other equity interests compensation based upon whether or not a sale of each Company Subsidiary are owned by the CompanyIssuer’s securities was consummated, by another Company Subsidiary or by has participated in the Company and another Company Subsidiarynegotiation or recommended the sale, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests the Issuer’s securities in such a way as to cause such person to be considered a broker-dealer under the securities laws of any kind applicable United States federal or nature whatsoever (collectively, “Liens”) and free state laws that might give the purchaser of any restriction on such securities the right to vote, sell rescind the sale thereof or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Lawsto receive any payment from the Issuer as a result thereof.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 2 contracts
Sources: Securities Purchase Agreement (Spirit Airlines, Inc.), Securities Purchase Agreement (Spirit Airlines, Inc.)
Capital Structure. (a) The authorized capital stock of the Company Provident consists of 1,000,000,000 150,000,000 shares of the Company Provident Common Stock and 50,000,000 25,000,000 shares of preferred stock, par value $0.01 1.00 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”)share. At the close of business on May 8November 17, 2015 (the “Measurement Date”)1998, (ai) 36,809,108 135,406,403 shares of Company Provident Common Stock (which includes 290,566 and no shares of Company Restricted Stock) preferred stock were issued and outstanding and (bii) no 294,151 shares of Company Preferred Provident Common Stock were issued or outstandingheld by Provident in its treasury. All issued and outstanding As of November 17, 1998, collectively, 6,983,551 shares of Provident Common Stock were subject to options ("Provident Stock Options") granted under the capital stock Stock Plan of 1994, Stock Option Plan of 1989, Employee Stock Option Plan of 1998, Non-Employee Director Compensation Plan of 1998 and Amended and Restated Annual Management Incentive Compensation Plan of 1994 (collectively, the Company are duly authorized"Provident Stock Plans"). As of November 17, validly issued1998, fully paid and non-assessable, and no class there were 9,278,780 shares of capital stock of Provident Common Stock reserved for issuance under the Company is entitled to preemptive rightsProvident Stock Plans. Except as set forth above, at the close of business on the Measurement DateNovember 17, 1998, no shares of capital stock or other voting securities of the Company Provident were issued, reserved for issuance or outstanding. There are no outstanding stock appreciation rights ("SARs") or rights (other than the Provident Stock Options) to receive shares of Provident Common Stock on a deferred basis granted under the Provident Stock Plans or otherwise. Schedule 3.01(c) of the Provident Disclosure Schedule sets forth a true and complete list, as of November 17, 1998, of all Provident Stock Options, the number of shares subject to each such option, the grant dates and the exercise prices thereof. All outstanding shares of capital stock of Provident are, and all shares which may be issued pursuant to this Agreement or the Provident Stock Plans will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights. As of the date of this Agreement, no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary Provident having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders stockholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP Provident may vote (“Voting Company Debt”)are issued or outstanding. Except as set forth above, as of the Measurement Datedate of this Agreement, there were are no preemptive or other outstanding securities, options, warrants, calls, rights, convertible or exchangeable securitiesconversion rights, redemption rights, repurchase rights, commitments, agreements, arrangements or undertakings of any kind to which the Company Provident or any Company Subsidiary was of its subsidiaries is a party or by which any of them was is bound (i) obligating the Company Provident or any Company Subsidiary of its subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests invoting securities of Provident or any of its subsidiaries, or giving any security convertible or exercisable person a right to subscribe for or exchangeable into acquire, any capital stock securities of or other equity interest in, the Company or of any Company Subsidiary Provident or any Voting Company Debt of its subsidiaries or (ii) obligating the Company Provident or any Company Subsidiary of its subsidiaries to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, conversion right, redemption right, repurchase right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners outstanding contractual obligations of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company Provident or any Company Subsidiaryof its subsidiaries to repurchase, (ii) voting trusts, proxies redeem or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of otherwise acquire any shares of capital stock of the Company Provident or any Company Subsidiary, or (iii) of its subsidiaries. There are no outstanding contractual obligations of Provident to vote or commitments to dispose of any character shares of the capital stock of any of its subsidiaries. To the knowledge of Provident, each individual or entity executing the Stockholders Agreement contemporaneously with or prior to which the Company or any Company Subsidiary was a party or by which execution and delivery hereof is the Company or any Company Subsidiary was bound restricting the transfer record owner of, or requiring is a trustee of a trust that is the registration for sale record holder of, any a number of shares of capital stock Provident Common Stock which is equal to the number of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights shares of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as Provident Common Stock set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock opposite such individual's or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction entity's name on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior Schedule A to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable)Stockholders Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Unum Corp), Merger Agreement (Provident Companies Inc /De/)
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 (i) 75,000,000 shares of common stock, $0.025 par value, of which 6,944,244 shares are issued and outstanding as of the Company Common Stock and 50,000,000 date hereof, (ii) 5,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”par value, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”), which (a) 36,809,108 51 shares of Company Common Series A Preferred Stock (authorized of which includes 290,566 51 shares of Company Restricted Stock) were Series A Preferred Stock are issued and outstanding and outstanding; (b) no 71,120 shares of Company Series B Preferred Stock were issued or outstanding. All authorized of which 0 shares of Series B Preferred Stock are issued and outstanding outstanding; (c) 67,361 shares of the capital stock Series C Preferred Stock authorized of the Company are duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock of the Company is entitled to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no which 0 shares of capital stock or other voting securities Series C Preferred Stock are issued and outstanding; and (d) 4,861,468 shares of the Company were issued, reserved for issuance or outstandingundesignated “blank check” preferred stock. There are no outstanding bonds, debentures, notes or other indebtedness or other securities of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders shareholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”)vote. Except as set forth above, as of disclosed in the Measurement DateCompany’s pubic securities filings, there were are no outstanding securities, options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was is a party or by which any of them was it is bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares common stock of capital stock the Company or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock voting securities of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners outstanding contractual obligations, commitments, understandings or arrangements of the Company OP to repurchase, redeem or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner otherwise acquire or make any payment in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear respect of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital common stock of the Company or any Company Subsidiary, other securities of the Company. There are no agreements or (iii) contractual obligations or commitments of any character arrangements pursuant to which the Company is or could be required to register the Company’s common stock or other securities under the Securities Act or other agreements or arrangements with or among any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock holders of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) securities of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 2 contracts
Sources: Share Exchange Agreement, Share Exchange Agreement (Meridian Waste Solutions, Inc.)
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 shares (A) 150,000,000 Shares, of which 48,890,405 Shares were outstanding as of the Company Common Stock close of business on July 26, 2013; and 50,000,000 (B) 10,000,000 shares of preferred stock, par value $0.01 0.001 per share (the “Company Preferred Stock”share, and, together with the Company Common Stock, the “Company Capital Stock”). At of which none were outstanding as of the close of business on May 8July 26, 2015 2013. All of the outstanding Shares have been duly authorized and are validly issued, fully paid and nonassessable. As of the close of business on July 29, 2013, other than 10,445,945 Shares reserved or available for issuance under the Company’s 1998 Stock Plan, 2006 Equity Incentive Plan, 2012 Equity Incentive Plan and ESPP (collectively, the “Measurement DateStock Plans”), (aand subject to the transactions contemplated by Section 7.13, the Company has no Shares reserved for issuance. Section 5.2(a) 36,809,108 shares of the Company Common Disclosure Letter contains a correct and complete list of options, restricted stock units and all other Company Awards outstanding under the Stock (which includes 290,566 shares Plans as of Company Restricted Stock) were issued and outstanding and (b) no shares July 29, 2013, including the holder, date of Company Preferred grant, governing Stock were issued or outstandingPlan, term, number of Shares and, where applicable, exercise price. All issued and Each of the outstanding shares of the capital stock or other securities of each of the Company are Company’s Subsidiaries is duly authorized, validly issued, fully paid and non-assessablenonassessable and free and clear of any lien, and no class of capital stock of the Company is entitled to preemptive rightscharge, pledge, security interest, claim or other encumbrance (each, a “Lien”). Except as set forth aboveabove and for any awards under the Stock Plans after the date of this Agreement, at except for the close rights (the “Rights”) issued pursuant to the Rights Agreement, dated as of business on February 26, 2013, between the Measurement DateCompany and American Stock Transfer & Trust Company, LLC (the “Rights Agreement”), and except for preferred stock issued pursuant to this Agreement there are, and as of the Closing Date there will be, no preemptive or other outstanding rights, options, 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, grant, sell, redeem or repurchase any shares of capital stock or other voting securities of the Company were issuedor any of its Subsidiaries or any securities or obligations of the Company or any of its Subsidiaries convertible or exchangeable into or exercisable for, reserved or giving any Person a right to subscribe for issuance or acquire, any securities of the Company, and no securities or obligations evidencing such rights are authorized, issued or outstanding. There are no Upon any issuance of any Shares in accordance with the terms of the Stock Plans, such Shares will be duly authorized, validly issued, fully paid and nonassessable and free and clear of any Liens. Except for preferred stock issued pursuant to this Agreement, the Company does not have outstanding any bonds, debentures, notes or other indebtedness obligations the holders of the Company or any Company Subsidiary having which have the right to vote (or convertible into, into or exchangeable for, exercisable for securities having the right to vote) with the holders of Shares on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; matter.
(b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a5.2(b) of the Company Disclosure Letter sets forth (x) each of the number of partnership units held by each partner in Company’s Subsidiaries and the Company OP. Other than the Company OP Units owned by the limited partners ownership interest of the Company OP set forth in Section 3.02(aeach such Subsidiary, as well as the ownership interest of any other Person or Persons in each such Subsidiary and (y) the Company’s or its Subsidiaries’ capital stock, equity interest or other direct or indirect ownership interest in any other Person other than securities in a publicly traded company held for investment by the Company or any of its Subsidiaries and consisting of less than 1% of the Company Disclosure Letter, the Company directly owns all outstanding capital stock of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rightssuch company. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits baseddoes not own, directly or indirectly, on any voting interest in any Person that requires an additional filing by Parent under the value or price of▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, any capital stock of, or other voting securities or ownership interests in, as amended (the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “LiensHSR Act”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 2 contracts
Sources: Merger Agreement (Optimer Pharmaceuticals Inc), Merger Agreement (Cubist Pharmaceuticals Inc)
Capital Structure. (ai) The authorized capital stock of the Company consists of 1,000,000,000 150 million shares of the Company Common Stock and 50,000,000 10 million shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At As of the close date hereof:
(A) 20,061,849 shares of business on May 8Common Stock, 2015 including 330,266 shares of Restricted Stock, are issued and outstanding, and no shares of Preferred Stock are outstanding;
(B) 1,225,815 shares of Common Stock are held by the Company in its treasury; and
(C) 1,769,147 shares of Common Stock were authorized and reserved for issuance upon exercise of outstanding options representing the right to acquire shares of Common Stock (the “Measurement DateStock Options”) awarded pursuant to, or subject to the terms of, the 2005 Equity Incentive Plan and the 2010 Omnibus Incentive Plan (collectively, the “Stock Option Plans”), 1,372,341 of which are vested.
(aii) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and (b) no shares of Company Preferred Stock were issued or outstanding. All issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class not subject to and were not issued in violation of capital stock of the Company is entitled to any preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. right.
(iii) There are no bonds, debentures, notes or other indebtedness of the Company having, or any Company Subsidiary having providing the holders thereof, the right to vote (or which are convertible into, exchangeable for or exchangeable exercisable for, shares of capital stock, equity or other securities having the right to vote) on any matters on which holders stockholders of the Company Common Stock, the Company OP Units may vote. There are no agreements or the general partnership interests in the Company OP may vote understandings (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible including any voting trust or exchangeable securities, commitments, or undertakings of any kind irrevocable proxy) to which the Company or any Company Subsidiary was is a party with respect to the issuance of or by the voting interest in or consent of any shares of capital stock of the Company or which restrict the transfer of any such shares (other than agreements restricting the transfer of them was bound unvested shares of restricted Common Stock issued and outstanding under the Stock Option Plans).
(iiv) obligating Other than pursuant to the Stock Option Plans and except for the Common Stock, there are not issued, reserved for issuance or outstanding (A) any shares of capital stock or other voting securities or equity interests of the Company, (B) any securities of the Company or any of its Subsidiaries convertible into or exchangeable or exercisable for shares of capital stock or other voting securities or equity interests of the Company Subsidiary or any of its Subsidiaries, or (C) any warrants, calls, options, subscriptions, convertible securities or other rights to acquire from the Company or any of its Subsidiaries, and no obligation, agreement or commitment of the Company or any of its Subsidiaries to issue, transfer or sell any shares of capital stock, voting securities, equity interests or securities convertible into or exchangeable or exercisable for shares of capital stock or voting securities of the Company, and there are not any outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any such securities or to issue, deliver or sell, or cause to be issued, delivered or sold, additional any such securities, including any agreements granting or extending any preemptive rights, subscription rights, anti-dilutive rights, rights of first refusal or similar rights with respect to any securities of the Company or any of its Subsidiaries.
(v) Section 3.01(b)(v) of the Company Disclosure Schedule sets forth a true, complete and correct list of the Stock Options, including the names of the Person to whom such Stock Options have been granted, the number of shares subject to each Stock Option, the per share exercise price for each Stock Option and the portion of each Stock Option that is currently exercisable.
(vi) Section 3.01(b)(vi) of the Company Disclosure Schedule sets forth a true, complete and correct list of the unvested Restricted Stock outstanding under the Stock Option Plans, including the name of the Persons to whom such Restricted Stock awards have been granted and the number of shares granted. Neither the Company nor any Company Subsidiary has issued any “phantom” stock or stock appreciation rights.
(vii) Section 3.01(b)(vii) of the Company Disclosure Schedule sets forth a true and complete list of each Subsidiary of the Company as of the date of this Agreement and, for each such Subsidiary, its jurisdiction of incorporation or organization. Section 3.01(b)(vii) of the Company Disclosure Schedule sets forth a true and complete list of each Insurance Subsidiary of the Company in existence as of the date of this Agreement and, for each such Insurance Subsidiary, its jurisdiction of incorporation or organization and each jurisdiction where it is required to be licensed by the state department of insurance, state department of health or other applicable state agency. Prior to the date of this Agreement, the Company has made available to Parent true and complete copies of the certificate of incorporation and bylaws (or equivalent organizational documents) of each Subsidiary of the Company as in effect on the date of this Agreement.
(viii) Except as set forth on Section 3.01(b)(viii) of the Company Disclosure Schedule, all of the outstanding capital stock or other voting securities of, or ownership interests in, each Subsidiary of the Company is owned by the Company, directly or indirectly, free and clear of any Lien and free of any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of such capital stock or other voting securities or ownership interests). There are no issued, reserved for issuance or outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other equity voting securities of, or other ownership interests in, any Subsidiary of the Company, (ii) warrants, calls, options or other rights to acquire from the Company or any of its Subsidiaries, or other obligations of the Company or any of its Subsidiaries to issue, any capital stock or other voting securities of, or other ownership interests in, or any security securities convertible or exercisable for into or exchangeable into for any capital stock of or other equity interest voting securities of, or other ownership interests in, any Subsidiary of the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (iiii) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock or other voting securities of, or other voting securities or ownership interests in, any Subsidiary of the Company or any Company Subsidiary, (iithe items in clauses (i) voting trusts, proxies or other similar agreements or understandings through (iii) being referred to which collectively as the Company or any “Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock Securities”). There are no outstanding obligations of the Company or any Company Subsidiaryof its Subsidiaries to repurchase, redeem or (iii) contractual obligations or commitments of any character to which the Company or otherwise acquire any Company Subsidiary was a party or by which Securities. Except for the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Lettervoting securities of, all or other ownership interests in, its Subsidiaries and publicly traded securities held for investment which do not exceed 5% of the outstanding shares securities of any entity, the Company does not own, directly or indirectly, any capital stock or other equity interests of each Company Subsidiary are owned by the Companyvoting securities of, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity ownership interests other than transfer and other restrictions under applicable federal and state securities Lawsin, any Person.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 2 contracts
Sources: Merger Agreement (Fortegra Financial Corp), Merger Agreement (Tiptree Financial Inc.)
Capital Structure. (a) The As of the date hereof, the authorized capital stock of the Company consists of 1,000,000,000 twenty million (20,000,000) shares of the Company Common Stock and 50,000,000 one million (1,000,000) shares of preferred stock, par value $0.01 .01 per share (the “Company "Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”"). At the close of business on May 8November 5, 2015 (the “Measurement Date”)1999, (ai) 36,809,108 8,109,965 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and (b) no shares outstanding, all of Company Preferred Stock which were issued or outstanding. All issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessablenonassessable and free of preemptive rights, and (ii) no class shares of capital stock Company Common Stock were held in the treasury of the Company is entitled or by Subsidiaries of the Company and (iii) 1,880,799 shares of Company Common Stock were reserved for future issuance pursuant to preemptive rightsthe Company's 1997 Stock Option Plan, as amended (the "Company Stock Plan"). Except No shares of Preferred Stock are outstanding. As of the date of this Agreement, except (i) as set forth above, at above and (ii) as set forth in Section 4.2(a) of the close of business on the Measurement DateCompany Disclosure Letter, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no The Company does not have any outstanding bonds, debentures, notes or other indebtedness obligations the holders of the Company or any Company Subsidiary having which have the right to vote (or which are convertible into, into or exchangeable for, exercisable for securities having the right to vote) on any matters on which holders with the stockholders of the Company on any matter ("Voting Debt"). As of the date of this Agreement, except for stock options covering not in excess of 1,536,089 shares of Company Common Stock, Stock issued under the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except Stock Plan and except as set forth above, as in Section 4.2(a) of the Measurement DateCompany Disclosure Letter, there were are no outstanding or authorized options, warrants, rightscalls, rights or subscriptions, claims of any character, obligations, convertible or exchangeable securities, securities or other commitments, contingent or undertakings of any kind otherwise, to which the Company or any Company Subsidiary was is a party or by which any of them was it is bound (i) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or any of any Company Subsidiary its Subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, securitycall, commitment right or undertaking. At the close of business on the Measurement Date, agreement (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; each an "Issuance Obligation").
(b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a4.2(b) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, name and jurisdiction of incorporation of each Subsidiary of the Company or any Company SubsidiaryCompany, (ii) voting trustsits authorized capital stock, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments the number of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any issued and outstanding shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
and (civ) the record owners of such shares. Except as set forth in Section 3.02(c4.2(b) of the Company Disclosure Letter, all of the outstanding shares of capital stock of, or other equity ownership interests in, each Subsidiary of each the Company Subsidiary are is owned by the Company, by another directly or indirectly. All of the issued and outstanding shares of capital stock of each Subsidiary are validly existing, fully paid and non-assessable. Except as set forth in the Company SEC Reports or Section 4.2(b) of the Company Disclosure Letter, no Subsidiary of the Company has outstanding Voting Debt and no Subsidiary of the Company is bound by, obligated under, or party to an Issuance Obligation with respect to any security of the Company or any Subsidiary of the Company. Except as set forth in the Company SEC Reports or Section 4.2(b) of the Company Disclosure Letter, all of such capital stock or ownership interest is owned by the Company and another Company SubsidiaryCompany, directly or indirectly, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(dc) All dividends Except for the Company's interest in its Subsidiaries, and as set forth in the Company SEC Reports or Section 4.2(c) of the Company Disclosure Letter, the Company does not directly or indirectly own any equity or similar interest in, or any interest convertible into or exchangeable or exercisable for any equity or similar interest in, any corporation, partnership, joint venture, limited liability company or other distributions on business association or entity (other than non-controlling investments in the shares ordinary course of Company Common Stock business and any material dividends or other distributions on any securities corporate partnering, development, cooperative marketing and similar undertakings and arrangements entered into in the ordinary course of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payablebusiness).
Appears in 2 contracts
Sources: Merger Agreement (Cordiant Communications Group PLC /Adr), Merger Agreement (Healthworld Corp)
Capital Structure. (a) The authorized capital stock of the Company consists of (i) 1,000,000,000 shares of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “of which 155,597,952 shares (including 918,928 Company Capital Stock”). At the close -Based Awards) were issued and outstanding as of business on May 8November 1, 2015 2020 (the “Measurement Date”), ) and (aii) 36,809,108 100,000,000 shares of Company Common Stock (Preferred Stock, none of which includes 290,566 shares of Company Restricted Stock) were are issued and outstanding as of the date of this Agreement. All of the issued and outstanding Shares have been, and the Shares which may be issued pursuant to the exercise (as applicable) and settlement of Company Stock Awards will be, when issued in accordance with the terms of the applicable Company Stock Awards, duly authorized and validly issued and are fully paid and nonassessable. As of October 30, 2020, 50,612,813 shares of Common Stock were held by the Company as treasury shares. As of the Measurement Date, an aggregate of 2,888,503 Shares were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans, of which (A) 2,683,294 Shares were issuable upon the exercise of outstanding Company Stock Options, (B) 205,209 Shares were underlying outstanding Company Units, and (C) 16,953 Shares had been contractually committed pursuant to the grants of Company Stock-Based Awards set forth on Section 4.2(a) of the Company Disclosure Schedule that have not yet been made (the “Committed Shares”). The Board has not authorized any issuances of Common Stock to occur on or after the Measurement Date.
(b) Except as described in this Section 4.2 and except for changes resulting from the exercise of Company Stock Options or the vesting and settlement of Company Stock-Based Awards or Company Units, in each case outstanding as of the Measurement Date, or issued hereunder as permitted pursuant to Section 6.1(d), there are no outstanding options, warrants, rights or other securities convertible into or exchangeable or exercisable for, or valued by reference to, shares of Company Preferred Stock were issued the capital stock of the Company, any other commitments or outstanding. All issued and outstanding agreements providing for the issuance of additional shares of capital stock of the Company, the sale of treasury shares or for the repurchase or redemption of shares of the capital stock of the Company are duly authorizedor any other agreements of any kind which may obligate the Company to issue, validly issuedpurchase, fully paid and non-assessable, and no class redeem or otherwise acquire any of its capital stock.
(c) The outstanding shares of capital stock of the Company is entitled to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities each of the Company were issued, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units Company’s Subsidiaries have been duly authorized and validly issued and are free of preemptive rightsfully paid and nonassessable. The Company OP GP is or one or more of its direct or indirect wholly owned Subsidiaries owns of record and beneficially all the sole general partner issued and outstanding shares of the Company OP and owns the general partnership interest capital stock of such Subsidiaries free and clear of any Liens, other than Permitted Liens. Except as described in this Section 4.2, there are no outstanding options, warrants, rights or other securities exercisable or exchangeable for any capital stock of such Subsidiaries, any other commitments or agreements providing for the issuance of additional shares, the sale of treasury shares or for the repurchase or redemption of shares of such Subsidiaries’ capital stock or any other agreements of any kind which may obligate any Subsidiary of the Company to issue, purchase, register for sale, redeem or otherwise acquire any of its capital stock.
(bd) Except for the issuance of shares of Common Stock that were reserved for issuance as set forth abovein Section 4.2(a), as of the close of business on from the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on Date to the value or price of, any capital stock of, or other voting securities or ownership interests indate of this Agreement, the Company has not declared or paid any dividend or distribution in respect of the Shares, and has not issued, sold, repurchased, redeemed or otherwise acquired any Shares, and its Board has not authorized any of the foregoing.
(e) Except for awards to acquire or receive shares of Common Stock under a Company SubsidiaryStock Plan, (ii) voting trustsneither the Company nor any of its Subsidiaries has outstanding bonds, proxies debentures, notes or other similar obligations, the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the Stockholders on any matter.
(f) There are no voting trusts or other agreements or understandings to which the Company or any Company Subsidiary was of its Subsidiaries is a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of the capital stock or other equity interest of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interestsSubsidiaries.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 2 contracts
Sources: Merger Agreement (Home Depot, Inc.), Merger Agreement (HD Supply Holdings, Inc.)
Capital Structure. (ai) The authorized capital stock of the Company consists of 1,000,000,000 19,000,000 shares of the Company Common Stock and 50,000,000 1,000,000 shares of preferred stock, par value $0.01 per share share.
(ii) As of the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close date of business on May 8, 2015 this Agreement:
(the “Measurement Date”), (aA) 36,809,108 5,806,263 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were are issued and outstanding and (b) no shares outstanding, all of Company Preferred Stock were issued or outstanding. All issued and outstanding shares of the capital stock of the Company which are duly authorized, validly issued, fully paid and non-assessablenonassessable and were issued in full compliance with all applicable laws and not in violation of any preemptive rights;
(B) no shares of Company preferred stock are issued and outstanding.
(C) 1,139,328 shares of Company Common Stock are held in treasury by the Company or otherwise directly or indirectly owned by the Company; and
(D) 153,789 shares of Company Common Stock are reserved for issuance pursuant to outstanding Company Stock Options (including vested and unvested Company Stock Options) and future awards of Company Restricted Stock.
(iii) Set forth in the Company’s Disclosure Letter are: (a) a complete and accurate list of all outstanding Company Stock Options, including the names of the optionees, dates of grant, exercise prices, dates of vesting, dates of termination, shares subject to each grant and whether stock appreciation, limited or other similar rights were granted in connection with such options, and no class (b) a complete and accurate list of capital all outstanding shares of restricted stock of the Company, including the names of the grantees, dates of grant, dates of vesting and shares subject to each grant.
(iv) No bonds, debentures, notes or other indebtedness having the right to vote on any matters on which stockholders of the Company is entitled to preemptive rights. may vote are issued or outstanding.
(v) Except as set forth abovein this Section 3.2(c), at as of the close date of business on the Measurement Datethis Agreement, (A) no shares of capital stock or other voting securities of the Company were are issued, reserved for issuance or outstanding. There are no bondsoutstanding and (B) other than Company Stock Options, debentures, notes or other indebtedness of neither the Company nor any of its Subsidiaries has or is bound by any Company Subsidiary having the right to vote (or convertible intooutstanding subscriptions, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, calls, rights, convertible or exchangeable securities, commitments, commitments or undertakings agreements of any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound (i) character obligating the Company or any Company Subsidiary of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, any additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company (including any rights plan or of any Company Subsidiary agreement) or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, convertible security, commitment or undertakingagreement. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units As of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There date hereof, there are no partners of the Company OP outstanding securities or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of instruments that contain any Liensredemption or similar provisions, and all Company OP Units have been duly authorized and validly issued and there are free no outstanding contractual obligations of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiaryof its Subsidiaries to repurchase, (ii) voting trusts, proxies redeem or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of otherwise acquire any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interestsSubsidiaries.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 2 contracts
Sources: Merger Agreement (New England Bancshares, Inc.), Merger Agreement (United Financial Bancorp, Inc.)
Capital Structure. (a) The As of the date hereof, the authorized capital stock of the Company consists of 1,000,000,000 shares of the Company Common Stock 40,000,000 Shares and 50,000,000 10,000,000 shares of preferred stock, par value $0.01 .001 per share (the “"Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”"). .
(b) At the close of business on May 8December 31, 2015 2002,
(the “Measurement Date”), (ai) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) 19,355,563 Shares were issued and outstanding outstanding, all of which were validly issued, fully paid and nonassessable and free of preemptive rights;
(bii) no Shares were held in the treasury of the Company;
(iii) no Shares were held by Subsidiaries of the Company; and
(iv) no shares of Company Preferred Stock were issued or outstanding. All issued and outstanding shares or held in the treasury of the capital stock Company.
(c) Section 3.2 of the Company are duly authorizedLetter contains a correct and complete list as of December 31, validly issued2002 of each outstanding option to purchase Shares (the "Company Stock Options") then outstanding and unexercised under the Company's 1999 Employee Stock Purchase Plan, fully paid the Equity Incentive Plan, the 1997 Equity Incentive Plan, the 1999 Equity Incentive Plan and nonthe 2000 Non-assessableQualified Stock Plan (collectively, the "Company Stock Option Plans") and no class of capital stock of those assumed by the Company is entitled pursuant to preemptive rights. Except as set forth abovethe acquisition of Rebop Media, at Inc. by the close Company, including the holder, date of business on the Measurement Dategrant, no shares exercise price and number of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common StockShares subject thereto, the Company OP Units Stock Option Plan under which such option was granted and whether the option is vested or the general partnership interests in exercisable.
(d) Except for the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement DateStock Options, there were are no options, warrants, rightscalls, convertible rights or exchangeable securities, commitments, or undertakings of any kind agreements to which the Company or any Company Subsidiary was is a party or by which any of them was it is bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, securitycall, commitment right or undertaking. At agreement, and there are no outstanding contractual rights to which the close Company is a party, the value of business which is based on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units value of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuableCommon Stock. There are no partners outstanding contractual obligations of the Company OP to repurchase, redeem or holders of Company OP Units other than as set forth on Section 3.02(aotherwise acquire any Shares.
(e) The only Subsidiary of the Company Disclosure Letteris Rebop Media, Inc., a California corporation. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and Each outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company such Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rightsis duly authorized, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Lettervalidly issued, all of the outstanding shares of capital stock or other equity interests of fully paid and nonassessable and each Company Subsidiary are such share is owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledgessecurity interests, liens, chargesclaims, mortgagespledges, options, rights of first refusal, agreements, limitations on voting rights, charges and other encumbrances and security interests of any kind nature whatsoever.
(f) The Company does not have any outstanding bonds, debentures, notes or nature whatsoever other obligations the holders of which have the right to vote (collectively, “Liens”) and free of any restriction on or convertible into or exercisable for securities having the right to vote, sell or otherwise dispose ) with the stockholders of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable)matter.
Appears in 2 contracts
Sources: Merger Agreement (Reid Clifford A), Merger Agreement (Eloquent Inc)
Capital Structure. (a) The authorized capital stock Capital Stock of the Company ----------------- consists of 1,000,000,000 shares (i) twenty-five million (25,000,000) Shares, of the Company Common Stock and 50,000,000 shares which 8,411,766 were outstanding as of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8October 23, 2015 1998, and (ii) one million (1,000,000) shares of Preferred Stock, par value $.01 per share (the “Measurement Date”"Preferred Shares"), (a) 36,809,108 shares none of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and (b) no shares of Company Preferred Stock were issued or is outstanding. All of the outstanding Shares ---------------- have been duly authorized and are validly issued, fully paid and nonassessable. The Company has no Preferred Shares reserved for issuance. Schedule 5.1(h) --------------- contains a correct and complete list as of October 23, 1998 of each outstanding purchase right or option (each a "Company Option") to purchase Shares, including -------------- all Company Options issued under the Company's Amended and Restated 1987 Stock Plan, the Company's 1997 Stock Plan, and the Company's Amended and Restated 1995 Director Stock Option Plan, in each case as amended to the date hereof (collectively, the "Stock Option Plans"), including the holder, date of grant, ------------------ exercise price and number of Shares subject thereto. Other than the FD Stock Option Agreement described in Schedule 5.1(h), the Stock Option Plans are the only plans under which any Company Options are outstanding. As of October 23, 1998, other than the 3,055,853 Shares reserved for issuance upon exercise of outstanding Company Options, there are no Shares reserved for issuance or any commitments for the Company to issue Shares. Each of the outstanding shares of the capital stock Capital Stock or other securities of each of the Company's Subsidiaries directly or indirectly owned by the Company are is duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class of capital stock owned by the Company or by a direct or indirect Subsidiary of the Company is entitled Company, free and clear of any limitation or restriction (including any restriction on the right to preemptive rightsvote or sell the same except as may be provided as a matter of Law). Except as set forth abovefor Company Options, at the close of business on the Measurement Datethere are no preemptive or other outstanding rights, no options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements or commitments to issue or sell any shares of capital stock Capital Stock or other voting securities of the Company were issuedor any of its Subsidiaries or any securities or obligations convertible or exchangeable into or exercisable for, reserved or giving any Person a right to subscribe for issuance or acquire from the Company, any shares of Capital Stock or other securities of the Company or any of its Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued or outstanding. There are no The Company does not have outstanding any bonds, debentures, notes or other indebtedness obligations the holders of the Company or any Company Subsidiary having which have the right to vote (or convertible into, into or exchangeable for, exercisable for securities having the right to vote) on any matters on which holders with the stockholders of the Company Common Stockon any matter ("Voting Debt"). If Parent takes the actions provided ----------- for in Section 6.8(c) hereof, after the Effective Time, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were Surviving Corporation will have no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary obligation to issue, deliver transfer or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of sell any shares of capital stock Capital Stock or other securities of the Surviving Corporation pursuant to the Stock Option Plans. The Shares constitute the only class of securities of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock Subsidiaries registered or other equity interestsrequired to be registered under the Exchange Act.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 2 contracts
Sources: Merger Agreement (Fluor Daniel Gti Inc), Merger Agreement (International Technology Corp)
Capital Structure. (ai) The authorized capital stock of the Company consists of: (x) 300,000,000 Shares, of 1,000,000,000 shares which 31,246,534 Shares were issued and outstanding and 13,713,904 were issued and held in Treasury as of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8November 11, 2015 2022 (the “Measurement Date”), and (ay) 36,809,108 24,500,000 shares of Company Common Stock (Preferred Stock, of which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and (b) no shares were outstanding as of Company Preferred Stock were issued or outstandingthe Measurement Date. All issued and outstanding shares of the capital stock of the Company outstanding Shares have been duly authorized and are duly authorized, validly issued, fully paid and non-assessable, and no class nonassessable. As of capital stock of the Company is entitled to preemptive rights. Except as set forth above, at the close of business on Measurement Date:
(x) 724,188 Shares were subject to Company Options, (y) 4,623,180 Shares were subject to Company RSU Awards and (z) 909,891 Shares were reserved for issuance under the Company ESPP. Except (A) with respect to purchase rights outstanding under the Company ESPP, (B) as set forth in this Section 4.1(b)(i) (including in Section 4.1(b) of the Company Disclosure Letter) or (C) for changes since the Measurement DateDate resulting from the issuance or acquisition by the Company of Shares in connection with the exercise or settlement of, no or satisfaction of withholding Taxes or exercise price payments with respect to, Company Equity Awards, as of the date hereof, there are not issued or outstanding (1) any shares of capital stock or other voting securities of the Company were issuedor (2) any preemptive or other outstanding rights, reserved options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, commitments or rights of any kind that obligate the Company to issue or sell any shares of capital stock or other securities of the Company or any securities or obligations convertible or exchangeable into or exercisable for, or giving any Person a right to subscribe for issuance or outstandingacquire, any securities of the Company, or any securities or obligations evidencing such rights. There are no The Company does not have outstanding any bonds, debentures, notes or other indebtedness obligations the holders of the Company or any Company Subsidiary having which have the right to vote (or convertible into, into or exchangeable for, exercisable for securities having the right to vote) on any matters on which holders with the stockholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of on any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or matter.
(ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a4.1(b)(ii) of the Company Disclosure Letter sets forth a true and complete list, as of the Measurement Date, of (A) the holder of each outstanding Company Option, the number of partnership units held by Shares covered thereby, and the per share exercise price thereof (if applicable); and (B) the holder of each partner outstanding Company RSU, the number of Shares covered thereby pursuant to unvested Company RSUs.
(iii) Section 4.1(b)(iii) of the Company Disclosure Letter sets forth as of the date hereof each of the Company’s Subsidiaries. Each of the outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable (in the Company OP. Other than case of each such Subsidiary, to the Company OP Units extent such concepts are recognized under the jurisdiction of organization of such Subsidiary) and owned by the limited partners Company or by a direct or indirect wholly-owned Subsidiary of the Company OP Company, free and clear of any lien, charge, pledge, security interest, claim or other encumbrance of any kind (a “Lien”), except for Permitted Liens. Except as set forth in Section 3.02(a4.1(b)(iii) of the Company Disclosure Letter, there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, commitments or rights of any kind that obligate any Subsidiary of the Company to issue or sell any shares of capital stock or other securities of any of the Company’s Subsidiaries or any securities or obligations convertible or exchangeable into or exercisable for, or giving any Person a right to subscribe for or acquire, any securities of any of the Company’s Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(iv) Except as set forth in Section 4.1(b)(iv) of the Company Disclosure Letter, the Company directly owns all of has no continuing obligations or liabilities with respect to, or the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close operation of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interestsElevate Credit International Limited.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 2 contracts
Sources: Merger Agreement (Elevate Credit, Inc.), Merger Agreement (Elevate Credit, Inc.)
Capital Structure. (ai) The As of the date of this Agreement, the authorized capital stock of the Company consists of 1,000,000,000 (A) 200,000,000 shares of the Company Common Stock, of which not more than 46,591,000 shares plus no more than 600,000 shares issued pursuant to the Company's Employee Stock Purchase Plan since December 31, 1998 are outstanding, and 50,000,000 (B) 2,000,000 shares of preferred stock, par value $0.01 .01 per share (the “Company Preferred Stock”share, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”), (a) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and (b) no shares of Company Preferred Stock were issued or are outstanding. All issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessablenonassessable, and no class of capital stock of the Company is entitled to preemptive rights. Except As of the date of this Agreement, there are no outstanding options, warrants or other rights to acquire capital stock from the Company other than (C) rights issued pursuant to the Rights Agreement dated as set forth aboveof November 7, at 1989 between the close Company and BankBoston, N.A., as amended and restated as of business on August 12, 1992, amended as of August 24, 1992, and amended and restated as of March 7, 1999 (as amended, the Measurement Date, no "COMPANY RIGHTS AGREEMENT") and (D) options representing in the aggregate the right to purchase not more than 11,293,000 shares of Company Common Stock under the Company Equity Plans.
(ii) All of the issued and outstanding shares of capital stock or other voting securities of the Company were Company's Subsidiaries are duly authorized, validly issued, reserved for issuance fully paid and nonassessable and are owned by the Company, free and clear of any liens, pledges, security interests, claims, encumbrances, restrictions, preemptive rights or outstanding. There are any other claims of any third party ("LIENS").
(iii) As of the date of this Agreement, no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP stockholders may vote (“Voting Company Debt”). "COMPANY VOTING DEBT") are issued or outstanding.
(iv) Except as otherwise set forth abovein this Section 3.1(b), as of the Measurement Datedate of this Agreement, there were are no securities, options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was its Subsidiaries is a party or by which any of them was is bound (i) obligating the Company or any Company a Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock voting securities of or other equity interest in, the Company or of any Company such Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company such Subsidiary to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units As of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership date of this Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There , there are no partners outstanding obligations of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company SubsidiarySubsidiary to repurchase, (ii) voting trusts, proxies redeem or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of otherwise acquire any shares of capital stock of the Company or any Company such Subsidiary, or (iii) contractual obligations or commitments of any character . Immediately prior to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock consummation of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rightsOffer and Merger, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the no shares of Company Common Stock and any material dividends or other distributions on any securities of any the Company Subsidiary which have been authorized and declared prior will be issuable pursuant to the date hereof Company Rights Agreement, and, immediately after the Effective Time, the Surviving Corporation will, assuming the execution of releases by holders of outstanding Company stock options as described in Section 5.11, have been paid in full (except no obligation to issue, transfer or sell any shares of common stock of the extent such dividends have been publicly announced Surviving Corporation pursuant to any compensation and are not yet due and payable)benefit plan.
Appears in 2 contracts
Sources: Merger Agreement (Vlsi Technology Inc), Merger Agreement (Vlsi Technology Inc)
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 30,000,000 shares of the Company Common Stock and 50,000,000 5,000,000 shares of preferred stock, par value $0.01 per share stock (the “Company "Preferred Stock”"), and, together with of which 820,513 shares of Preferred Stock have been designated as the Company Common ESOP Preferred Stock, the “Company Capital Stock”). At the close of business on May 8January 31, 2015 (the “Measurement Date”)1997, (ai) 36,809,108 5,961,665 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and (b) no shares outstanding, all of Company Preferred Stock which were issued or outstanding. All issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessablenonassessable and free of preemptive rights, and no class (ii) 786,869.1221 shares of capital stock ESOP Preferred Stock were issued and outstanding, all of the Company is entitled to which were validly issued, fully paid and nonassessable and free of preemptive rights. Except as set forth aboveAs of the date of this Agreement, at except for (i) the close of business on the Measurement Date, no rights to purchase shares of capital stock or other voting securities Common Stock (the "Rights") issued pursuant to the Rights Agreement dated as of April 26, 1996 (the "Rights Agreement"), between the Company were issuedand State Street Bank, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness as Rights Agent; (ii) the rights of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company shares of ESOP Preferred Stock to convert such shares into shares of Common Stock; and (iii) stock options covering not in excess of 1,550,670 shares of Common Stock, including shares offered under the Company's 1980 Nonqualified Stock Option Plan, Stock Option and Stock Appreciation Rights Plan of 1980, 1983 Incentive Stock Option Plan, 1984 Stock Option Plan, 1987 Stock Option and Restricted Stock Plan and 1993 Long-Term Incentive Plan (collectively, the "Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”Stock Options"). Except as set forth above, as of the Measurement Date, there were are no options, warrants, rightscalls, convertible rights or exchangeable securities, commitments, or undertakings of any kind agreements to which the Company or any Company Subsidiary was of its Subsidiaries is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, securitycall, commitment right or undertakingagreement. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth abovein the Company Letter and except in respect of the ESOP Preferred Stock, as of the close date of business on the Measurement Datethis Agreement, there were are no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, outstanding contractual obligations of the Company or any Company Subsidiaryof its Subsidiaries (i) to repurchase, (ii) voting trusts, proxies redeem or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of otherwise acquire any shares of capital stock of the Company or any Company Subsidiary, (ii) to vote or (iii) contractual obligations or commitments to dispose of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of the capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws's Subsidiaries.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 2 contracts
Sources: Merger Agreement (Scotsman Industries Inc), Merger Agreement (Kysor Industrial Corp /Mi/)
Capital Structure. (a) The As of the date hereof, the authorized capital stock of the Company consists of 1,000,000,000 fifteen million (15,000,000) shares of the Company Common Stock and 50,000,000 one million (1,000,000) shares of preferred stock, par value $0.01 .001 per share (the “Company "Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”"). At the close of business on May 818, 2015 (the “Measurement Date”)1999, (ai) 36,809,108 3,730,135 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and (b) no shares outstanding, all of Company Preferred Stock which were issued or outstanding. All issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessablenonassessable and free of preemptive rights, and no class (ii) 740 shares of capital stock Common Stock were held in the treasury of the Company is entitled or by Subsidiaries of the Company and (iii) 413,389 shares of Common Stock were reserved for future issuance pursuant to preemptive rightsthe Company's 1995 Long-Term Incentive Plan and 1987 Statutory-Nonstatutory Stock Option Plan (collectively, the "Stock Option Plans"). Except No shares of Preferred Stock are outstanding. A total of 150,000 shares of Preferred Stock have been designated as Series A Junior Participating Preferred Stock ("Series A Preferred Stock"), in connection with the Rights Agreement. As of the date of this Agreement, except (i) as set forth above, at (ii) for the close of business on rights to purchase Series A Preferred Stock ("Rights") pursuant to the Measurement DateRights Agreement and (iii) as set forth in the Company SEC Documents (as hereinafter defined), no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no The Company does not have any outstanding bonds, debentures, notes or other indebtedness obligations the holders of the Company or any Company Subsidiary having which have the right to vote (or which are convertible into, into or exchangeable for, exercisable for securities having the right to vote) on any matters on which holders with the stockholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote on any matter (“"Voting Company Debt”"). Except as set forth above, as As of the Measurement Datedate of this Agreement, except for stock options covering not in excess of 305,240 shares of Common Stock issued under the Stock Option Plans, there were are no outstanding or authorized options, warrants, rightscalls, rights or subscriptions, claims of any character, obligations, convertible or exchangeable securities, securities or other commitments, contingent or undertakings of any kind otherwise, to which the Company or any Company Subsidiary was is a party or by which any of them was it is bound (i) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or any of any Company Subsidiary its Subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, securitycall, commitment right or undertaking. At the close of business on the Measurement Date, agreement (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payablean "Issuance Obligation").
Appears in 2 contracts
Sources: Merger Agreement (Floss Acquisitions Corp), Merger Agreement (First Commonwealth Inc)
Capital Structure. (a) The authorized capital stock of the Company Prize consists of 1,000,000,000 50,000,000 shares of the Company Prize Common Stock and 50,000,000 10,000,000 shares of preferred stock, par value $0.01 per share (the “Company Prize Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”), (a) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and .
(b) no shares As of Company Preferred Stock the date hereof, there were issued or outstanding. All (i) 12,529,106 issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock of the Company is entitled to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Prize Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating Prize Stock Options relating to 2,240,027 shares of Prize Common Stock that have been, or prior to the Company or any Company Subsidiary Effective Time will be, issued, and (iii) Prize Warrants relating to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close 1,708,724 shares of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP Prize Common Stock that were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners As of the Company OP or holders date hereof, 2,085,481 shares of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units Prize Common Stock were held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except Prize as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity intereststreasury stock.
(c) Except as set forth in Section 3.02(c3.8(b), there are outstanding (i) of the Company Disclosure Letter, all of the outstanding no shares of capital stock or other equity interests voting securities of Prize, (ii) no securities of Prize or any other Person convertible into or exchangeable or exercisable for shares of capital stock or other voting securities of Prize, and (iii) no subscriptions, options, warrants, calls, rights (including preemptive rights), commitments, understandings or agreements to which Prize is a party or by which it is bound obligating Prize to issue, deliver, sell, purchase, redeem or acquire shares of capital stock or other voting securities of Prize (or securities convertible into or exchangeable or exercisable for shares of capital stock or other voting securities of Prize) or obligating Prize to grant, extend or enter into any such subscription, option, warrant, call, right, commitment, understanding or agreement.
(d) All outstanding shares of Prize capital stock are validly issued, fully paid and nonassessable and not subject to any preemptive right.
(e) All outstanding shares of capital stock and other voting securities of each Company Subsidiary of the corporate Prize Subsidiaries are (i) validly issued, fully paid and nonassessable and not subject to any preemptive right, and (ii) owned by the Company, by another Company Subsidiary or by the Company and another Company SubsidiaryPrize Companies, free and clear of all pledgesLiens, liens, charges, mortgages, encumbrances claims and security interests options of any kind or nature whatsoever (collectively, “Liens”except for Permitted Encumbrances). There are outstanding (y) and free no securities of any restriction on the right to votePrize Subsidiary or any other Person convertible into or exchangeable or exercisable for shares of capital stock, sell or otherwise dispose of such capital stock other voting securities or other equity interests of such Prize Subsidiary, and (z) no subscriptions, options, warrants, calls, rights (including preemptive rights), commitments, understandings or agreements to which any Prize Subsidiary is a party or by which it is bound obligating such Prize Subsidiary to issue, deliver, sell, purchase, redeem or acquire shares of capital stock, other than transfer and voting securities or other restrictions under applicable federal and state equity interests of such Prize Subsidiary (or securities Lawsconvertible into or exchangeable or exercisable for shares of capital stock, other voting securities or other equity interests of such Prize Subsidiary) or obligating any Prize Subsidiary to grant, extend or enter into any such subscription, option, warrant, call, right, commitment, understanding or agreement.
(df) All dividends Except for the Prize Voting and Shareholders Agreement, there is no stockholder agreement, voting trust or other distributions on agreement or understanding to which Prize is a party or by which it is bound relating to the voting of any shares of Company Common Stock and any material dividends or other distributions on any securities the capital stock of any Company Subsidiary which have been authorized and declared prior to of the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable)Prize Companies.
Appears in 2 contracts
Sources: Merger Agreement (Prize Energy Corp), Merger Agreement (Magnum Hunter Resources Inc)
Capital Structure. (a) The authorized capital stock of the Company GrafTech consists of 1,000,000,000 225,000,000 shares of the Company Common GrafTech Stock and 50,000,000 10,000,000 shares of preferred stock, $0.01 par value $0.01 per share (the “Company Preferred Stock”share. As of March 31, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”)2010, (ai) 36,809,108 120,361,161 shares of Company Common GrafTech Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding, 7,619,512 shares of GrafTech Stock were reserved for issuance upon the exercise or payment of outstanding options, stock units or other awards or pursuant to plans of GrafTech under which any award, grant or other form of compensation issuable in the form of, or based in whole or in part of the value of, GrafTech Stock has been conferred on any Person, and 4,065,473 shares of GrafTech Stock are held by GrafTech in its treasury and (bii) no shares of Company Preferred Stock were issued or outstanding. All issued and outstanding shares of the capital preferred stock of the Company are duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock of the Company is entitled to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuablereserved for issuance. There are no partners All outstanding shares of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any LiensGrafTech Stock have been, and all Company OP Units have been reserved shares that may be issued will be, when issued in accordance with the respective terms thereof, duly authorized and validly issued and are (or, in the case of shares that have not yet been issued, will be) fully paid, nonassessable and free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth abovefor this Agreement and agreements entered into and securities and other instruments issued after the date hereof or pursuant to any of GrafTech’s Employee Benefit Plans or other similar arrangements entered in the ordinary course, as of the close of business on the Measurement Date, there were no (i) restricted sharesthere are no options, restricted share unitswarrants, stock appreciation convertible securities or other rights, performance sharesagreements, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations arrangements or commitments of any character obligating GrafTech to which issue or sell any GrafTech Stock or, to the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer ofKnowledge of GrafTech, or requiring the registration for sale ofrelating to GrafTech Stock and (ii) there are no outstanding contractual obligations of GrafTech to repurchase, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell redeem or otherwise dispose of such capital stock or other equity interests acquire any GrafTech Stock (other than transfer and GrafTech’s publicly disclosed stock repurchase program) or to make any investment (in the form of a loan, capital contribution or otherwise) in any other restrictions under applicable federal and state securities LawsPerson which is not a Subsidiary.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 2 contracts
Sources: Merger Agreement (GrafTech Holdings Inc.), Merger Agreement (GrafTech Holdings Inc.)
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 3,000,000,000 shares of the Company Common Stock and 50,000,000 Stock, 75,000,000 shares of preferred stock, $0.01 par value $0.01 per share (the “Company Preferred Stock”), andand 600,000,000 excess shares, together with the Company Common Stock, $0.01 par value per share (the “Company Capital StockExcess Shares”). At the close of business on May 8January 17, 2015 (the “Measurement Date”)2007, (a) 36,809,108 156,968,775.0187 shares of Company Common Stock were issued and outstanding, all of which were duly authorized, validly issued, fully paid and nonassessable and free of preemptive rights, (which includes 290,566 b) 2,872,743 shares of Company Restricted Stock) Common Stock were issued and outstanding and reserved for issuance pursuant to Deferred Share Awards granted under the Company’s 2004 Omnibus Long-Term Incentive Plan (bthe “Company Stock Plan”), (c) no shares of Company Preferred Stock were issued or and outstanding, and (d) no Excess Shares were issued and outstanding. All issued and outstanding As of the date of this Agreement, except as set forth above, no shares of stock of the capital Company or options, warrants, convertible or exchangeable securities or other rights to purchase stock of the Company are duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock of the Company is entitled to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no outstanding bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters matter on which holders the Company’s stockholders may vote. As of the Company Common Stockdate of this Agreement, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except except as set forth above, as of the Measurement Datethere are no securities, there were no options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was of its Subsidiaries is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, deliver or sellsell or create, or cause to be issued, delivered or soldsold or created, additional shares of capital stock or other voting or equity securities or interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary of its Subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At undertaking relating to the close voting of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units stock or equity securities or interests of the Company OP were issued and outstanding; (d) or any of its Subsidiaries. As of the date of this Agreement, other than pursuant to this Agreement, there are no Class B Contingent Units (as defined in outstanding contractual obligations or rights of the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in or any of its Subsidiaries to register or repurchase, redeem or otherwise acquire, vote, dispose of or otherwise transfer or register pursuant to any securities Laws any shares of stock or equity interests of the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuableany of its Subsidiaries. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was is a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock Company Common Stock and, to the Knowledge of the Company or any Company SubsidiaryCompany, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock as of the Company date of this Agreement, there are no third party agreements or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights understandings with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests voting of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable)Stock.
Appears in 2 contracts
Sources: Merger Agreement (Ashford Hospitality Trust Inc), Merger Agreement (CNL Hotels & Resorts, Inc.)
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 50,000,000 Shares and 5,000,000 shares of the Company Common Stock and 50,000,000 shares of preferred stockPreferred Stock, par value $0.01 .0001 per share (the “Company Preferred Stock”share. As of March 13, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”)1998, (ai) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) 6,703,880 Shares were issued and outstanding outstanding, (ii) no Shares were held by the Company or by any of the Company's subsidiaries, (iii) 525,000 Shares were reserved for issuance upon the exercise of Company Options pursuant to the Option Plan, of which Company Options to Purchase 330,150 Shares were outstanding, (iv) 75,000 Shares were reserved issuance pursuant to the Company Warrants, and (bv) no shares of Company Preferred Stock were issued issued, reserved for issuance or outstanding. Except as set forth above, no shares of capital stock or other equity or voting securities of the Company are issued, reserved for issuance or outstanding. All issued and outstanding shares of the capital stock of the Company are are, and all Shares which may be issued pursuant to the Company Options or the Company Warrants will, when issued, be duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class of capital stock of the Company is entitled not subject to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no not any bonds, debentures, notes or other indebtedness or securities of the Company or any Company Subsidiary having the right to vote (or convertible into, or 12 exchangeable for, securities having the right to vote) on any matters on which holders stockholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”)vote. Except as set forth above, as above in Section 4.1(c) of the Measurement DateDisclosure Schedule, there were no are not any securities, options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was of its subsidiaries is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary of its subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock voting securities of or other equity interest in, the Company or of any Company Subsidiary of its subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its subsidiaries to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At Section 4.1(c) of the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued Disclosure Schedule also sets forth a true and outstanding (c) no preferred units correct list of the Company OP were issued Options which are outstanding as of the date hereof, which list sets forth, for each holder of a Company Option, the number of Shares subject thereto, the exercise price and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuableexpiration date thereof. There are no partners of the Company OP outstanding rights, commitments, agreements, arrangements or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear undertakings of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, kind obligating the Company or any Company Subsidiaryof its subsidiaries to repurchase, (ii) voting trusts, proxies redeem or other similar agreements otherwise acquire or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting dispose of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests or voting securities of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear or any of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind its subsidiaries or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid type described in full (except to the extent such dividends have been publicly announced and are not yet due and payable)two immediately preceding sentences.
Appears in 2 contracts
Sources: Merger Agreement (Matrix Capital Corp /Co/), Merger Agreement (Fidelity National Financial Inc /De/)
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 300,000,000 shares of the Company Common Stock Stock, of which 7,077,682 shares were outstanding as of the close of business on February 14, 2017, and 50,000,000 100,000,000 shares of preferred stock, par value $0.01 0.0001 per share (of the “Company Preferred Stock”Company, and, together with none of which were outstanding as of the Company Common Stock, date of this Agreement. All of the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”), (a) 36,809,108 outstanding shares of Company Common Stock (which includes 290,566 shares of have been duly authorized and are validly issued, fully paid and nonassessable. The Company Restricted Stock) were issued and outstanding and (b) has no shares of Company Preferred Common Stock or other shares of its capital stock reserved for issuance, except that, as of February 14, 2017, there were issued or outstanding1,128,158 shares of Company Common Stock reserved for issuance pursuant to the Company’s 2006 Long-Term Incentive Plan, as amended and restated, including each subplan thereof (including the Company’s 2013 Performance Share Unit Program and the Company’s 2016 Retention and Incentive Plan) (collectively, the “Stock Plan”). All issued and Each of the outstanding shares of the capital stock or other securities of each of the Company are Company’s Subsidiaries is duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class of capital stock owned by the Company or by a direct or indirect wholly owned Subsidiary of the Company is entitled to preemptive rightsCompany, free and clear of any pledge, lien, charge, option, hypothecation, mortgage, security interest, adverse right, prior assignment, license, sublicense or any other encumbrance of any kind or nature whatsoever (an “Encumbrance”). Except as to the extent set forth above, at there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, commitments or rights of any kind that obligate the close Company or any of business on the Measurement Date, no its Subsidiaries to issue or to sell any shares of capital stock or other voting securities of the Company were issuedor any of its Subsidiaries or any securities or obligations convertible or exchangeable into or exercisable for, reserved or giving any Person a right to subscribe for issuance or acquire, any securities of the Company or any of its Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued or outstanding. There are no Upon any issuance of any shares of Company Common Stock in accordance with the terms of the Stock Plans, such shares of Company Common Stock will be duly authorized, validly issued, fully paid and nonassessable and free and clear of any Encumbrance. The Company does not have outstanding any bonds, debentures, notes or other indebtedness obligations the holders of the Company or any Company Subsidiary having which have the right to vote (or convertible into, into or exchangeable for, exercisable for securities having the right to vote) on any matters on which holders with the shareholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of on any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; matter.
(b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a4.2(b) of the Company Disclosure Letter sets forth contains a correct and complete list of all outstanding Company Equity Awards as of the date of this Agreement, including the number of partnership units held by shares of Company Common Stock subject to each partner in Company Equity Awards and the holder, grant date, exercise price (if applicable) and vested status with respect to each Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure LetterEquity Award, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liensas applicable.
(bc) Except as set forth above, as of the close of business on the Measurement Date, there were no Each Company Option (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on was granted in compliance in all material respects with all applicable Laws and the value or price of, terms and conditions of the Stock Plan (and any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiaryapplicable subplan(s) pursuant to which it was issued), (ii) has an exercise price per share of Company Common Stock equal to or greater than the fair market value of a share of Company Common Stock on the date of such grant, and (iii) has a grant date identical to or later than the date on which it was granted.
(d) Except for the Company Voting Agreements, there are no voting trusts, proxies trusts or other similar agreements or understandings to which the Company or any Company Subsidiary was of its Subsidiaries is a party or by which otherwise to the Company or any Company Subsidiary was bound Company’s Knowledge with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interestsSubsidiaries.
(ce) Except as set forth in Section 3.02(c4.2(e) of the Company Disclosure LetterLetter sets forth (x) each of the Company’s Subsidiaries and the ownership interest of the Company in each such Subsidiary and (y) the Company’s or its Subsidiaries’ capital stock, all equity interest or other direct or indirect ownership interest in any other Person other than securities in a publicly traded company held for investment by the Company or any of its Subsidiaries and consisting of less than 1% of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock company. The Company does not own, directly or other equity interests other than transfer and other restrictions indirectly, any voting interest in any Person that requires an additional filing by Parent under applicable federal and state securities Laws.
the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvement Act of 1976, as amended (d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable“HSR Act”).
Appears in 2 contracts
Sources: Merger Agreement (FBR & Co.), Merger Agreement (B. Riley Financial, Inc.)
Capital Structure. (ai) The authorized capital stock of the Company consists of 1,000,000,000 100,000,000 shares of the Company Common Stock and 50,000,000 2,000,000 shares of preferred stock, par value $0.01 0.001 per share (the “Company Preferred Stock”). Of the 2,000,000 shares of Company Preferred Stock that are authorized for issuance, and200,000 shares have been designated as Series A Preferred Stock and have been reserved for issuance under the Company’s Amended and Restated Rights Agreement, together with dated as of August 28, 2002, between the Company Common Stock, and Continental Stock Transfer & Trust Company (the “Company Capital StockRights Agreement”). At As of the close of business on May 8, 2015 (the “Measurement Date”)date hereof, (aA) 36,809,108 21,256,015 shares of Company Common Stock are issued and outstanding, (which includes 290,566 B) no shares of Company Restricted Stock) were Common Stock are issued and outstanding held by the Company in its treasury and (bC) no shares of Company Preferred Stock were issued or outstanding. All are issued and outstanding, or issued and held by the Company in its treasury. The Company has delivered to Parent a true, complete and correct schedule setting forth the number of shares of Company Common Stock held by each registered holder thereof as of June 18, 2003, and since such date the Company has not issued any securities (including derivative securities) except for any shares of Company Common Stock issued upon exercise of Options under the 1997 Stock Plan and 2001 Stock Plan, Warrants or purchase rights under the ESPP, in each case, outstanding prior to such date.
(ii) As of the date of this Agreement and regarding options, stock appreciation rights or any other awards which grant a right to purchase shares of Company Common Stock (“Options”):
(A) The Company has reserved 2,055,360 shares of Common Stock for issuance to employees, consultants and directors pursuant to the Company’s 1995 Stock Option Plan (the “1995 Stock Plan”), of which 1,388,667 shares have been issued pursuant to option exercises. In December 1997, the Company adopted the 1997 Stock Plan (as defined below) and terminated the 1995 Stock Plan. Following such termination, no additional options were granted under the 1995 Stock Plan, and all outstanding, unexercised options remained outstanding pursuant to the terms thereof, and if cancelled, the shares subject to such options became available for grant pursuant to the 1997 Stock Plan. As of July 9, 2003, 21,750 shares are subject to outstanding, unexercised options under the 1995 Stock Plan.
(B) the Company has reserved 10,744,750 shares of Common Stock for issuance to employees, consultants and directors pursuant to the Company’s 1997 Stock Option Plan (the “1997 Stock Plan”), of which (i) 1,802,084 shares have been issued pursuant to option exercises, of which 103,947 shares have been repurchased by the Company, (ii) 6,639,889 shares are subject to outstanding, unexercised options, and (iii) 2,406,724 shares are available for issuance thereunder;
(C) the Company has reserved 900,000 shares of Common Stock for issuance to employees and consultants who are not officers and directors of the Company pursuant to the Company’s 2001 Nonstatutory Stock Option Plan (the “2001 Stock Plan”), of which 3,124 shares have been issued pursuant to option exercises, 763,895 shares are subject to outstanding, unexercised options, and 132,981 shares are available for issuance thereunder; and
(D) the Company has reserved 2,300,000 shares of Company Common Stock for issuance to employees under the Company’s 2000 Employee Stock Purchase Plan (the “ESPP” and, collectively with the 1997 Stock Plan and the 2001 Stock Plan, the “Stock Plans”, and each, a “Stock Plan”), of which 557,820 shares have been issued pursuant to the exercise of purchase rights and 1,742,180 shares are available for issuance thereunder. The current “Offering Period” (as defined in the ESPP) commenced under the ESPP on May 1, 2003 and will end on the day immediately prior to the Effective Time, and except for the purchase rights granted on such commencement date to participants in the current Offering Period, there are no other purchase rights or options outstanding under the ESPP. A maximum of 287,500 shares of Company Common Stock may be purchased under the current Offering Period under the ESPP on the final purchase date thereunder which is to occur on the day immediately prior to the Effective Time.
(E) Section 3.1(c)(ii)(E) of the Disclosure Schedule lists, with respect to each Option then outstanding, the holder of the Option and the relationship of the holder to the Company (whether director, employee, officer or independent consultant), the number of shares of Company Common Stock subject to such Option, the status of such Option under Code Section 422, and the exercise price per share, date of grant, exercise or vesting schedule and expiration date thereof, including the extent to which any vesting had occurred as of the date of this Agreement. On the Closing Date, the Company shall deliver to Parent an updated list of such information current as of such date. The Company has delivered or Made Available to Parent true, complete and correct copies of all Stock Plans and the forms of all agreements and instruments relating to or issued thereunder and such agreements and instruments have not been amended, modified or supplemented and there are no agreements to amend, modify or supplement such agreements or instruments in any case from the form provided to Parent. No consent of the holders of the Options (or participants in the ESPP), stockholders or otherwise is required in connection with the actions contemplated by Section 4.3 or Section 5.8.
(iii) All outstanding shares of the Company’s capital stock are, and all shares of Company Common Stock reserved for issuance as specified above shall be, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, duly authorized, validly issued, fully paid and nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, pre-emptive right, subscription right or any similar right under any provision of the DGCL, the Company’s Certificate of Incorporation, By-laws or any Contract to which the Company is a party or otherwise bound. None of the outstanding shares of the Company’s capital stock has been issued in violation of any federal or state securities laws. All of the outstanding shares of capital stock of each of the Company Company’s Subsidiaries are duly authorized, validly issued, fully paid and non-assessablenonassessable, and all such shares (other than directors’ qualifying shares in the case of foreign Subsidiaries) are owned by the Company or a Subsidiary of the Company free and clear of all Liens. There are no class accrued and unpaid dividends with respect to any outstanding shares of capital stock of the Company is entitled or any of its Subsidiaries.
(iv) The Company Common Stock and the Preferred Stock Purchase Rights under the Rights Agreement constitute the only classes of securities of the Company or its Subsidiaries registered or required to preemptive rights. be registered under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
(v) Except as set forth abovein Section 3.1(c)(v) of the Disclosure Schedule, at there are no agreements to which the close Company is a party or by which it is bound with respect to the voting (including voting trusts or proxies), registration under the Securities Act, or sale or transfer (including agreements relating to pre-emptive rights, rights of business on the Measurement Datefirst refusal, no shares co-sale rights or “drag-along” rights) of capital stock or other voting any securities of the Company were or its Subsidiaries. To the Knowledge of the Company, except for the Voting Agreements, there are no agreements among other parties, to which the Company is not a party and by which it is not bound, with respect to the voting (including voting trusts or proxies) or sale or transfer (including agreements relating to rights of first refusal, co-sale rights or “drag-along” rights) of any securities of the Company or its Subsidiaries.
(vi) Except as described in this Section 3.1(c), no capital stock of the Company or any of its Subsidiaries or any security convertible or exchangeable into or exercisable for such capital stock, is issued, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness outstanding as of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders date of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”)this Agreement. Except as set forth above, as of the Measurement Datedescribed in this Section 3.1(c), there were are no options, preemptive rights, warrants, calls, rights, convertible commitments or exchangeable securities, commitments, or undertakings agreements of any kind to which the Company or any Company Subsidiary was of its Subsidiaries is a party party, or by which the Company or any of them was bound (i) its Subsidiaries is bound, obligating the Company or any Company Subsidiary of it Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or any of any Company Subsidiary its Subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, grant, extend or accelerate the vesting of otherwise amend or enter into any such option, warrant, securitycall, right, commitment or undertakingagreement. At Except for the close Company’s repurchase rights with respect to unvested shares issued under the Stock Plans, there are no rights or obligations, contingent or otherwise (including without limitation rights of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest first refusal in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units favor of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners Company), of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiaryof its Subsidiaries, (ii) voting truststo repurchase, proxies redeem or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of otherwise acquire any shares of capital stock of the Company or any Company Subsidiaryof its Subsidiaries or to provide funds to or make any investment (in the form of a loan, capital contribution or (iiiotherwise) contractual obligations in any such Subsidiary or commitments of any character other Person. There are no registration rights or other agreements or understandings to which the Company or any Company Subsidiary was of its Subsidiaries is a party or by which the Company it or they are bound with respect to any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither of its Subsidiaries.
(vii) The Board of Directors of the Company has taken all action necessary in order to render the Rights Agreement and the Rights (as such term is defined in the Rights Agreement) inapplicable to the Merger and the other transactions contemplated by this Agreement with the effect that (A) no “Distribution Date” (as such term is defined in the Rights Agreement) has occurred or will occur as a result of the approval, execution or delivery of this Agreement or the consummation of the Merger and the other transactions contemplated hereby, (B) neither Parent nor any Company Subsidiary Merger Sub has granted any preemptive rightsbecome or will be an “Acquiring Person” (as such term is defined in the Rights Agreement) solely as a result of entering into, anti-dilutive rights performing the terms of or rights of first refusal consummating the transactions contemplated by this Agreement or similar rights the Voting Agreements and (C) the Rights Agreement will otherwise be inapplicable to Parent and Merger Sub while this Agreement is in effect with respect to any performing the terms of its capital stock or other equity interestsconsummating the transactions contemplated by this Agreement or the Voting Agreements.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 2 contracts
Sources: Merger Agreement (Virage Inc), Merger Agreement (Autonomy Corp PLC)
Capital Structure. (ai) The authorized capital stock of the Company consists of 1,000,000,000 201,000,000 shares of the Company Common Stock capital stock, consisting of (i) 200,000,000 Shares, and 50,000,000 (ii) 1,000,000 shares of preferred stock, par value $0.01 1.00 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close As of business on May 8March 4, 2015 2022: (the “Measurement Date”), (aA) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) 127,009,563 Shares were issued and outstanding and outstanding, (bB) no shares of Company Preferred Stock were issued and outstanding, (C) 3,274,744 Shares were subject to outstanding Company Options, (D) 1,974,983 Shares were subject to outstanding Company RSU Awards, and (E) 1,430,621 Shares were subject to outstanding Company PSU Awards (assuming applicable performance goals are achieved at target performance and 4,291,893 additional Shares were subject to outstanding Company PSU Awards (assuming applicable performance goals are achieved at maximum performance). Except as set forth in this Section 5.1(b) and for Shares issuable upon the exercise or settlement of Company Equity Awards outstanding on the date hereof or granted following the date hereof pursuant to Section 6.1(b), the Company has no other equity or equity-based interests authorized, issued and/or outstanding. All issued and outstanding shares of the capital stock .
(ii) Section 5.1(b)(ii) of the Company Disclosure Schedule sets forth a complete and accurate list as of March 3, 2022 of all outstanding Company Equity Awards granted under the Company Equity Plan or otherwise, indicating, with respect to each Company Equity Award then outstanding, the type of award granted, the target number of Shares subject to such Company Equity Award, the plan under which such Company Equity Award was granted, date of grant, vesting schedule, vested status, and in the case of any Company Option, the exercise price, expiration date and whether such Company Option is intended to constitute an “incentive stock option” within the meaning of Section 422 of the Code.
(iii) All of the outstanding Shares are duly authorizedauthorized and validly issued in accordance with the Company’s organizational documents, validly as applicable, and are, or will be when issued, fully paid and non-assessablenonassessable. All of the outstanding Shares have not been, or will not be when issued, issued in violation of any applicable securities Laws or preemptive rights, rights of first refusal or other similar rights of any Person. All of the issued and no class outstanding equity interests in each of capital stock the Company’s Subsidiaries are authorized and validly issued in accordance with the respective organizational documents of such Subsidiaries and are fully paid (to the extent required under such Subsidiaries’ organizational documents) and nonassessable and have not been issued in violation of any applicable securities Laws or preemptive rights, rights of first refusal or other similar rights of any Person. As of the date hereof and the Closing Date, the Company owns, directly or indirectly, all of the outstanding equity interests in each of its Subsidiaries free and clear of all Liens other than (A) transfer restrictions imposed by federal and state securities Laws and (B) any transfer restrictions contained in the organizational documents of the Company is entitled to preemptive rights. and its Subsidiaries.
(iv) Except as set forth above, at in the close of business on the Measurement Date, no shares of capital stock or other voting securities organizational documents of the Company were issuedand except as otherwise provided in Section 5.1(b)(i), reserved there are no preemptive rights or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, phantom equity interests, redemption rights, repurchase rights, agreements, arrangements, calls, subscription agreements, commitments or rights of any kind that obligate the Company or any of its Subsidiaries to issue or sell any equity interests or any securities or obligations convertible or exchangeable into or exercisable for, giving any Person a right to subscribe for issuance or acquire or measured by reference to, any equity interests in the Company or any of its Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued or outstanding. There are no .
(v) Neither the Company nor any of its Subsidiaries has any outstanding bonds, debentures, notes or other indebtedness obligations the holders of the Company or any Company Subsidiary having which have the right to vote (or convertible into, into or exchangeable for, exercisable for securities having the right to vote) on any matters on which with the holders of the Company Common Stock, the Company OP Units or the general partnership equity interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was a party or by which of its Subsidiaries on any of them was bound matter.
(ivi) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, voting proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was of its Subsidiaries is a party or by which the Company or any Company Subsidiary was bound with respect to the voting or registration of any shares of capital stock the Shares or other equity interest of the Company or any Company Subsidiary, or of its Subsidiaries.
(iiivii) contractual obligations or commitments Except with respect to the ownership of any character to which equity or long-term debt securities between or among the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer ofof its Subsidiaries, or requiring the registration for sale of, any shares of capital stock none of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock Subsidiaries owns, directly or other indirectly, any equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any long-term debt securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable)Person.
Appears in 2 contracts
Sources: Merger Agreement (CD&R Associates VIII, Ltd.), Merger Agreement (Cornerstone Building Brands, Inc.)
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 as of the date hereof, and will consist of as of the Effective Time, 50,000,000 shares of Company Common Stock and 1,000,000 shares of preferred stock, $.01 par value per share (the "COMPANY PREFERRED STOCK"), of which 50,000 shares are designated Series A Junior Participating Preferred Stock ("JUNIOR PREFERRED STOCK"). The rights, privileges and preferences of the Company Common Stock and Company Preferred Stock are as stated in the Company's Restated Articles of Incorporation. As of the close of business on July 6, 2001, (i) 14,859,642 shares of the Company Common Stock and 50,000,000 no shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”)Stock were issued and outstanding, (aii) 36,809,108 14,380,681 shares of Company Common Stock were held by the Company in its treasury, (which includes 290,566 iii) 2,399,966 shares of Company Restricted Stock) Common Stock were issued and reserved for issuance upon exercise of currently outstanding Stock Options (as defined in Section 5.5), and (biv) no 50,000 shares of Company Junior Preferred Stock were reserved for issuance upon exercise of preferred share purchase rights (the "RIGHTS") issued or outstandingpursuant to the Rights Agreement, dated as of October 17, 1997, as amended, between the Company and The Chase Manhattan Bank, as Rights Agent (the "RIGHTS AGREEMENT"). All issued and outstanding shares of Company Common Stock are, and all shares which may be issued upon the capital stock exercise of the Company are Stock Options will be, duly authorized, validly issued, fully paid and non-assessablenonassessable, and no class are not subject to and were not issued in violation of capital stock of the Company is entitled to any preemptive rights. Except as set forth abovein Section 3.1(c) of the Company Disclosure Schedule and to the knowledge of the Company, at as of the close of business on the Measurement Datedate hereof, there are no voting trusts, voting agreements, irrevocable proxies or other agreements with respect to any voting shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstandingCompany. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary of its subsidiaries having the right to vote (or convertible into, into or exchangeable for, for other securities having the right to vote) on any matters on which holders the stockholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”)vote. Except as set forth above, as of the Measurement Datedate of this Agreement, there were are no outstanding securities, options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was of its subsidiaries is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary of its subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock voting securities of or other equity interest in, the Company or of any Company Subsidiary of its subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its subsidiaries to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners outstanding contractual obligations of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiaryof its subsidiaries to repurchase, (ii) voting trusts, proxies redeem or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of otherwise acquire any shares of capital stock (or options to acquire any such shares) of the Company or any Company Subsidiaryof its subsidiaries. There are no agreements, or (iii) contractual obligations arrangements or commitments of any character (contingent or otherwise) pursuant to which any person is or may be entitled to receive any payment based on the Company revenues, earnings or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock financial performance of the Company or any Company Subsidiary. Neither of its subsidiaries or assets or calculated in accordance therewith (other than ordinary course payments or commissions to sales representatives of the Company nor any based upon revenues generated by them without augmentation as a result of the transactions contemplated hereby) or to cause the Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock subsidiaries to file a registration statement under the Securities Act of 1933, as amended (the "SECURITIES ACT"), or other equity interests.
(c) Except as set forth in Section 3.02(c) which otherwise relate to the registration of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable)Company.
Appears in 2 contracts
Sources: Merger Agreement (International Game Technology), Merger Agreement (International Game Technology)
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 300,000,000 shares of the Company Common Stock and 50,000,000 shares of preferred stock, $0.01 par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8December 14, 2015 (the “Measurement Date”)2012, (ai) 36,809,108 177,807,713 shares of Company Common Stock (which includes 290,566 were issued and outstanding, including 17,400 shares of Company Restricted Stock) were issued and outstanding and , (bii) no shares of Company Preferred Stock were issued or and outstanding, (iii) 8,000,000 shares of Company Common Stock were reserved for issuance pursuant to the terms of outstanding awards granted pursuant to the Company Stock Plans, and (iv) 7,982,000 shares of Company Common Stock were available for grant under the Company Stock Plans. All issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock of the Company is entitled to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no outstanding bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters matter on which holders of shares of Company Common Stock may vote. As of the date of this Agreement, there are no Company Options outstanding. Section 4.3(a) of the Company Disclosure Letter, sets forth for each holder of Company Restricted Stock outstanding as of the date of this Agreement (A) the name with respect to the holder of Company Restricted Stock, (B) the number of shares of outstanding Company Restricted Stock, (C) the date of grant of such Company Restricted Stock, and (D) the vesting schedule for such Company Restricted Stock. There are no other rights, options, stock or unit appreciation rights, phantom stock or units, restricted stock units, dividend equivalents or similar rights with respect to the Company Common StockStock or Company Partnership Units other than the Company Options, Company Restricted Stock and Company Partnership Units disclosed on Section 4.3(a) of the Company Disclosure Letter. Each grant of a Company Option was duly authorized no later than the date on which the grant of such Company Option was by its terms to be effective by all necessary corporate action, including, as applicable, approval by the Company’s board of directors (the “Company Board”), or a committee thereof, and any required stockholder approval by the necessary number of votes or written consents, and each Company Option and Company Restricted Stock grant was made in accordance in all material respects with the terms of the applicable Company Stock Plan and applicable Law. The per share exercise price of each Company Option was not less than the fair market value of a share of Company Common Stock on the applicable grant date. Immediately prior to the Closing, the Company OP Units or will provide to Parent a complete and correct list that contains the general partnership information required to be provided in Section 4.3(a) of the Company Disclosure Letter, that is correct and complete as of the Closing Date; provided, however, delivery of such updated schedule shall not cure any breach of this Section 4.3 for purposes of determining whether the applicable closing condition has been satisfied.
(b) All of the outstanding shares of capital stock of each of the Company Subsidiaries that is a corporation are duly authorized, validly issued, fully paid and nonassessable. All equity interests in each of the Company OP Subsidiaries that is a partnership or limited liability company are duly authorized and validly issued. All shares of capital stock of (or other ownership interests in) each of the Company Subsidiaries that may vote (“Voting Company Debt”)be issued upon exercise of outstanding options or exchange rights are duly authorized and, upon issuance will be validly issued, fully paid and nonassessable. Except as set forth abovein Section 4.1(c) of the Company Disclosure Letter, the Company owns, directly or indirectly, all of the issued and outstanding capital stock and other ownership interests of each of the Company Subsidiaries, free and clear of all encumbrances other than statutory or other liens for Taxes or assessments which are not yet due or delinquent or the validity of which is being contested in good faith by appropriate proceedings and for which adequate reserves are being maintained, and there are no existing options, warrants, calls, subscriptions, convertible securities or other securities, agreements, commitments or obligations of any character relating to the outstanding capital stock or other securities of any Company Subsidiary or which would require any Company Subsidiary to issue or sell any shares of its capital stock, ownership interests or securities convertible into or exchangeable for shares of its capital stock or ownership interests.
(c) Except as set forth in this Section 4.3 or in Section 4.3(a) of the Company Disclosure Letter, as of the Measurement Datedate of this Agreement, there were are no securities, options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, rights of first refusal, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was is a party or by which any of them was bound (i) is bound, obligating the Company or any Company Subsidiary to issue, deliver or sellsell or create, or cause to be issued, delivered or soldsold or created, additional shares of capital Company Common Stock, shares of Company Preferred Stock or other equity securities or phantom stock or other contractual rights the value of which is determined in whole or in part by the value of any equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or any of any the Company Subsidiary Subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, right of first refusal, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, Except as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a4.3(c) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close date of business on the Measurement Datethis Agreement, there were are no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which outstanding contractual obligations of the Company or any Company Subsidiary was a party to repurchase, redeem or by which otherwise acquire any shares of Company Common Stock, shares of Company Preferred Stock or other equity securities of the Company or any Company Subsidiary was bound with respect (other than in satisfaction of withholding Tax obligations pursuant to the voting of any shares of capital stock of certain awards outstanding under the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character Stock Plans in the event the grantees fail to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiarysatisfy withholding Tax obligations). Neither the Company nor any Company Subsidiary has granted is a party to or bound by any preemptive rights, anti-dilutive rights agreements or rights understandings concerning the voting (including voting trusts and proxies) of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all or any of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities LawsSubsidiaries.
(d) All dividends or other distributions on the shares of Company Common Stock and Company Preferred Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and or declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 2 contracts
Sources: Merger Agreement (American Realty Capital Trust III, Inc.), Merger Agreement (American Realty Capital Properties, Inc.)
Capital Structure. (a) The As of the date hereof, the authorized capital stock of the Company consists of 1,000,000,000 25,000,000 shares of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 831, 2015 (the “Measurement Date”)2000, (ai) 36,809,108 8,594,455 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and (b) no shares outstanding, all of Company Preferred Stock which were issued or outstanding. All issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock nonassessable (except to the extent otherwise provided in Section 180.0622(2)(b) of the Company is entitled to WBCL) and free of preemptive rights, (ii) no shares of Company Common Stock were held in the treasury of the Company, (iii) 2,488,000 shares of Company Common Stock were reserved for future issuance pursuant to the Company's Amended and Restated Stock Option Plan, any other option grants or plans, or pursuant to any plans assumed by the Company in connection with any acquisition, business combination or similar transaction (collectively, the "COMPANY STOCK OPTION PLANS"). No shares of Company Common Stock are held by any Subsidiary of the Company.
(b) Section 3.2 (b) of the letter dated the date hereof and delivered on the date hereof by the Company to Parent, which relates to this Agreement and is designated therein as the Company Letter (the "COMPANY LETTER"), contains a correct and complete list as of the date of this Agreement of each outstanding option to purchase shares of Company Common Stock issued under the Company Stock Option Plans (collectively, the "COMPANY STOCK OPTIONS"), including the holder, date of grant, term, acceleration of vesting or exercisability, if any, exercise price and number of shares of Company Common Stock subject thereto. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities Section 3.2(b) of the Company were issued, reserved Letter and except for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement DateStock Options, there were are no options, warrants, rightscalls, convertible rights or exchangeable securities, commitments, or undertakings of any kind agreements to which the Company or any Company Subsidiary was of its Subsidiaries is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or any of any Company Subsidiary its Subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, securitycall, commitment right or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interestsagreement.
(c) Except as set forth in Section 3.02(c3.2 of the Company Letter, there are no outstanding contractual obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of Company Common Stock or any capital stock of or any equity interests in the Company or any Subsidiary. Each outstanding share of capital stock of each Subsidiary of the Company is duly authorized, validly issued, fully paid and nonassessable (except to the extent otherwise provided in Section 180.0622(2)(b) of the WBCL) and, except as disclosed in the Company Disclosure LetterSEC Documents (defined below) filed prior to the date of this Agreement, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are such share is owned by the Company or another Subsidiary of the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledgessecurity interests, liens, chargesclaims, mortgagespledges, options, rights of first refusal, agreements, limitations on voting rights, charges and other encumbrances and security interests of any kind nature whatsoever. The Company does not have any outstanding bonds, debentures, notes or nature whatsoever other obligations the holders of which have the right to vote (collectively, “Liens”) and free of any restriction on or are convertible into or exercisable for securities having the right to vote) with the shareholders of the Company on any matter. Section 3.2(c) of the Company Letter contains a correct and complete list as of the date of this Agreement of each of the Company's Subsidiaries. Except as set forth on Section 3.2(c) of the Company Letter, sell as of the date hereof, neither the Company nor any of its Subsidiaries is party to or otherwise dispose bound by (x) any agreement or commitment pursuant to which the Company or any Subsidiary of such capital stock the Company is or other equity interests other than transfer and other restrictions could be required to register any securities under applicable federal and state securities Lawsthe Securities Act or (y) any debt agreements or instruments which grant any rights to vote (contingent or otherwise) on matters on which shareholders of the Company may vote.
(d) All dividends or Section 3.2(d) of the Company Letter contains a correct and complete list as of the date of this Agreement of each entity in which the Company owns an equity interest (other distributions on than a Subsidiary), including the number of outstanding shares of Company Common Stock the stock of each such entity, the percentage interest represented by the Company's ownership in the entity, and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid of acquisition of the ownership interest in full (except to the extent any such dividends have been publicly announced and are not yet due and payable)entity.
Appears in 2 contracts
Sources: Merger Agreement (General Electric Co), Merger Agreement (Lunar Corp)
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 20,000,000 shares of the Company Common Stock and 50,000,000 1,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 824, 2015 2006 (the “Measurement Date”), (ai) 36,809,108 2,910,859 shares of Company Common Stock were issued and outstanding, (which includes 290,566 ii) 431,372 shares of Company Restricted StockCommon Stock were held by the Company in its treasury, (iii) 187,115 shares of Company Common Stock were issued reserved for issuance upon the exercise or payment of stock options, stock units or other awards granted or subject to grant pursuant to the 1993 Stock Option Plan, the 1997 Equity Incentive Plan and outstanding the 2000 Director Option Plan (the “Company Stock Plans”) of which 172,115 have an exercise price less than the Closing Merger Consideration Per Share and (biv) no shares of Company Preferred Stock were issued or outstanding. All issued .
(b) The Company has delivered to Parent a correct and complete list, as of May 24, 2006, of all outstanding Company Stock Options and other rights to purchase or receive shares of the capital stock of Company Common Stock granted under the Company are duly authorizedStock Plans or otherwise, validly issuedthe number of shares of Company Common Stock subject thereto, fully paid whether or not a stock option is an incentive stock option, expiration dates and non-assessableexercise prices thereof, in each case broken down as to each plan, agreement or other arrangement and no class of capital stock of the Company is entitled as to preemptive rightseach individual holder. Except as set forth aboveabove in this Section 3.03, at the close of business on the Measurement DateMay 24, 2006, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There Except as set forth above in this Section 3.03, there are no outstanding stock appreciation rights, rights to receive shares of Company Common Stock or Company Preferred Stock on a deferred basis or other rights that are linked to the value of Company Common Stock granted under the Company Stock Plans or otherwise. All outstanding shares of capital stock of the Company are, and all shares which may be issued pursuant to the Company Stock Plans will be, when issued in accordance with the terms thereof, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights.
(c) The authorized capital stock of Electronic Network Systems, Inc. (“Mogul Sub”) consists of 50,000,000 shares of common stock, par value $0.01 per share (“Mogul Sub Common Stock”), and 500,000 shares of preferred stock, par value $0.01 per share (the “Mogul Sub Preferred Stock” and together with the Mogul Sub Common Stock, the “Mogul Sub Capital Stock”) of which 12,000 have been designated by Mogul Sub as Series A Preferred Stock and 2,000 have been designated by Mogul Sub as Series B Preferred Stock. As of the date of this Agreement, (i) 16,895,158 shares of Mogul Sub Common Stock were issued and outstanding, (ii) 12,000 shares of Series A Preferred Stock were issued and outstanding, (iii) 2,000 shares of Series B Preferred Stock were issued and outstanding, (iv) no shares of Mogul Sub Common Stock and no shares of Mogul Sub Preferred Stock, were held by Mogul Sub in its treasury, (v) 6,470,789 shares of Mogul Sub Common Stock were reserved for issuance pursuant to the conversion of the Mogul Sub Preferred Stock, and (vi) no shares of Mogul Sub Capital Stock were reserved for issuance pursuant to any options to purchase Mogul Sub Capital Stock (the “Mogul Sub Stock Options”) pursuant to any stock option or equity plan, including the 1999 Equity Incentive Plan (the “Mogul Sub Stock Plans”) and no shares of Mogul Sub Capital Stock were subject to outstanding Mogul Sub Stock Options. Section 3.03(c) of the Company Disclosure Letter lists the names of all holders of Mogul Sub Capital Stock and their respective ownership of each class of Mogul Sub Capital Stock on both a basic and fully diluted basis. All of the issued and outstanding shares of Mogul Sub Capital Stock are owned of record as set forth in Section 3.03(c) of the Company Disclosure Letter.
(d) Except as set forth above in Section 3.03(c), no shares of capital stock or other voting securities of Mogul Sub were issued, reserved for issuance or outstanding. Except as set forth above in Section 3.03(c), there are no outstanding options, stock appreciation rights, rights to receive shares of Mogul Sub Capital Stock on a deferred basis or other rights that are linked to the value of Company Common Stock or Mogul Sub Capital Stock granted under the Mogul Sub Stock Plans or otherwise. All rights to receive shares of Mogul Sub Capital Stock pursuant to the Mogul Sub Stock Plans have expired in accordance with the terms of the Mogul Sub Stock Plans. All outstanding shares of capital stock of Mogul Sub are, when issued in accordance with the terms thereof, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights.
(e) Except as set forth above in this Section 3.03, there are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders stockholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”)vote. Except as set forth aboveabove in this Section 3.03, as (i) there are not issued, reserved for issuance or outstanding (A) any securities of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was a party of its Subsidiaries convertible into or by which any exchangeable or exercisable for shares of them was bound (i) obligating capital stock or voting securities of the Company or any of its Subsidiaries or (B) any warrants, calls, options or other rights to acquire from the Company Subsidiary or any of its Subsidiaries, or any obligation of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or securities convertible into or exchangeable or exercisable for capital stock or voting securities of the Company or any of its Subsidiaries, (ii) there are not any outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any such securities or to issue, deliver or sell, or cause to be issued, delivered or sold, additional any such securities and (iii) there are not any outstanding obligations of the Company or any of its Subsidiaries to register shares of any capital stock or other equity interests insecurities under the Securities Act of 1933, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest inas amended, and the rules and regulations promulgated thereunder (the “Securities Act”). Neither the Company or nor any of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP its Subsidiaries is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or to any Company Subsidiary was bound voting agreement with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interestssuch securities.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 2 contracts
Sources: Merger Agreement (NWH Inc), Merger Agreement (Unitedhealth Group Inc)
Capital Structure. (a) The As of the date hereof, the authorized capital stock of the Company ▇▇▇▇ consists of 1,000,000,000 240,000,000 shares of the Company common stock, par value $0.01 per share (“▇▇▇▇ Common Stock Stock”), and 50,000,000 10,000,000 shares of preferred stock, par value $0.01 per share (the “Company ▇▇▇▇ Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8January 16, 2015 (the “Measurement Date”)2013, (ai) 36,809,108 208,597,574.876 shares of Company ▇▇▇▇ Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and outstanding, (bii) no shares of Company ▇▇▇▇ Preferred Stock were issued or and outstanding, (iii) 50,000 shares of ▇▇▇▇ Common Stock were reserved for issuance pursuant to the terms of outstanding options granted pursuant to the ▇▇▇▇ Stock Option Plan and (iv) 950,000 shares of ▇▇▇▇ Common Stock were available for grant under the ▇▇▇▇ Stock Option Plan. ▇▇▇▇ suspended sales pursuant to the DRIP as of December 16, 2012 and such suspension remains in effect. All issued and outstanding shares of the capital stock of the Company ▇▇▇▇ are duly authorized, validly issued, fully paid and non-assessablenonassessable, and no class of capital stock of the Company is entitled to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no outstanding bonds, debentures, notes or other indebtedness Indebtedness of the Company or any Company Subsidiary ▇▇▇▇ having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters matter on which holders of shares of ▇▇▇▇ Common Stock may vote. Section 4.3(a) of the Company ▇▇▇▇ Disclosure Letter sets forth a complete and correct list, as of the date of this Agreement, of the total number of outstanding ▇▇▇▇ Options under the ▇▇▇▇ Stock Option Plan and, with respect to each ▇▇▇▇ Option outstanding as of the date of this Agreement, (A) the number of shares of ▇▇▇▇ Common StockStock subject to such ▇▇▇▇ Option, (B) the Company OP Units name of the holder of such ▇▇▇▇ Option, (C) the per share exercise price, and (D) the grant date. There are no restricted stock, stock appreciation rights, restricted stock units, dividend equivalent rights, other equity compensation awards or other rights to purchase or receive ▇▇▇▇ Common Stock granted under the general partnership ▇▇▇▇ Stock Option Plan, or compensatory awards of units in the ▇▇▇▇ Operating Partnership, or otherwise other than the ▇▇▇▇ Options. The per share exercise price of each ▇▇▇▇ Option was not less than the fair market value of a share of ▇▇▇▇ Common Stock on the applicable grant date. One (1) Business Days prior to the Closing, ▇▇▇▇ will provide to Spirit a complete and correct list that contains the information required to be provided in Section 4.3(a) of the ▇▇▇▇ Disclosure Letter that is correct and complete as of the Closing Date.
(b) All of the outstanding shares of capital stock of each of the ▇▇▇▇ Subsidiaries that is a corporation are duly authorized, validly issued, fully paid and nonassessable. All equity interests in each of the Company OP ▇▇▇▇ Subsidiaries that is a partnership or limited liability company are duly authorized and validly issued. All shares of capital stock of (or other ownership interests in) each of the ▇▇▇▇ Subsidiaries which may vote (“Voting Company Debt”)be issued upon exercise of outstanding options or exchange rights are duly authorized and, upon issuance will be validly issued, fully paid and nonassessable. Except as set forth abovein Section 4.3(b) of the ▇▇▇▇ Disclosure Letter, ▇▇▇▇ owns, directly or indirectly, all of the issued and outstanding capital stock and other ownership interests of each of the ▇▇▇▇ Subsidiaries, free and clear of all encumbrances other than statutory or other Liens for Taxes or assessments which are not yet due or delinquent or the validity of which is being contested in good faith by appropriate proceedings and for which there are adequate accruals and reserves on the financial statements of ▇▇▇▇ (if such reserves are required pursuant to GAAP).
(c) Except as set forth in Section 4.3(c) of the ▇▇▇▇ Disclosure Letter or as set forth in the ▇▇▇▇ Operating Partnership Agreement, as of the Measurement Datedate of this Agreement, there were are no securities, options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, rights of first refusal, arrangements or undertakings of any kind to which the Company ▇▇▇▇ or any Company ▇▇▇▇ Subsidiary was is a party or by which any of them was bound (i) is bound, obligating the Company ▇▇▇▇ or any Company ▇▇▇▇ Subsidiary to issue, deliver or sellsell or create, or cause to be issued, delivered or soldsold or created, additional shares of capital ▇▇▇▇ Common Stock, shares of ▇▇▇▇ Preferred Stock or other equity securities or phantom stock or other contractual rights the value of which is determined in whole or in part by the value of any equity interests in, security of ▇▇▇▇ or any security convertible of the ▇▇▇▇ Subsidiaries or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary obligating ▇▇▇▇ or any Voting Company Debt or (ii) obligating the Company or any Company ▇▇▇▇ Subsidiary to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, right of first refusal, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c4.3(c) of the Company ▇▇▇▇ Disclosure Letter, all there are no outstanding contractual obligations of the outstanding ▇▇▇▇ or any ▇▇▇▇ Subsidiary to repurchase, redeem or otherwise acquire any shares of capital stock ▇▇▇▇ Common Stock, shares of ▇▇▇▇ Preferred Stock, or other equity interests securities of each Company ▇▇▇▇ or any ▇▇▇▇ Subsidiary. Neither ▇▇▇▇ nor any ▇▇▇▇ Subsidiary are owned is a party to or, to the Knowledge of ▇▇▇▇, bound by any agreements or understandings concerning the Company, by another Company Subsidiary or by the Company voting (including voting trusts and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests proxies) of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock of ▇▇▇▇ or other equity interests other than transfer and other restrictions under applicable federal and state securities Lawsany of the ▇▇▇▇ Subsidiaries.
(d) ▇▇▇▇ does not have a “poison pill” or similar shareholder rights plan.
(e) Neither ▇▇▇▇ nor any ▇▇▇▇ Subsidiary is under any obligation, contingent or otherwise, by reason of any contract to register the offer and sale or resale of any of their securities under the Securities Act.
(f) All dividends or other distributions on the shares of Company ▇▇▇▇ Common Stock and any material dividends or other distributions on any securities of any Company ▇▇▇▇ Subsidiary which have been authorized and or declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
(g) ▇▇▇▇ is the sole general partner of the ▇▇▇▇ Operating Partnership and, as the date hereof, owns a 99.99% interest in the ▇▇▇▇ Operating Partnership. ▇▇▇▇ REIT Advisors II, LLC (the “Advisor”) is the sole limited partner and owns, as of the date hereof, less than 0.01% of the interest in the ▇▇▇▇ Operating Partnership.
(h) The shares of ▇▇▇▇ Common Stock to be issued by ▇▇▇▇ in exchange for shares of the Spirit Common Stock pursuant to this Agreement will be duly authorized for issuance prior to the Company Merger Effective Time and will, when issued in the Company Merger pursuant to the terms of this Merger Agreement, be validly issued, fully paid and nonassessable.
Appears in 2 contracts
Sources: Merger Agreement (Cole Credit Property Trust II Inc), Merger Agreement (Spirit Realty Capital, Inc.)
Capital Structure. (a) The As of the date of this Agreement, the authorized capital stock of the Company consists of 1,000,000,000 (i) 75,000,000 shares of the Company Common Stock and 50,000,000 (ii) 1,000,000 shares of preferred stock, par value $0.01 0.001 per share (the “Company Preferred Stock”, ” and, together with the Company Common StockStock and any other capital stock of the Company, the “Company Capital Stock”). At the close of business on May 8March 11, 2015 2014 (the “Measurement Capitalization Reference Date”), (aA) 36,809,108 39,206,958 shares of Company Common Stock (which includes 290,566 were issued and outstanding, including 472,379 shares of Company Restricted StockShares, (B) no shares of Preferred Stock were issued and outstanding, (C) 2,460,041 shares of Company Common Stock were reserved for issuance pursuant to the Company Stock Plans, (D) options to purchase 1,596,287 shares of Company Common Stock were issued and outstanding and under the Company Stock Plans, (bE) no 40,472 shares of Company Preferred Stock were Phantom Shares and (F) no Voting Debt was issued or and outstanding. All issued and outstanding shares of the capital stock of the Company Common Stock are duly authorized, validly issued, fully paid and non-assessable, assessable and no class of capital stock are not subject to any preemptive rights or other statutory rights. Schedule 3.1(b)(i) of the Company is entitled to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth aboveDisclosure Schedule sets forth, as of the Measurement Capitalization Reference Date, there were no all outstanding options, warrants, rights (including preemptive rights), convertible or exchangeable securities, commitments, or undertakings of any kind Contracts to which the Company or any Subsidiary of the Company Subsidiary was is a party or by which it is bound in any of them was bound (i) case obligating the Company or any Subsidiary of the Company Subsidiary to issue, deliver deliver, sell, purchase, redeem or sellacquire, or cause to be issued, delivered delivered, sold, purchased, redeemed or soldacquired, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary Capital Stock or any Voting Company Debt Debt, or (ii) obligating the Company or any Subsidiary of the Company Subsidiary to issue, grant, extend or enter into any such option, warrant, securitycall, right, commitment or undertakingagreement, excluding Company Equity Awards. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(aSchedule 3.1(b)(ii) of the Company Disclosure LetterSchedule sets forth, as of the Capitalization Reference Date, a complete and correct list of all securities of the Company or any Subsidiary of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stock or Voting Debt, excluding Company Equity Awards. Section 3.02(aSchedule 3.1(b)(iii) of the Company Disclosure Letter Schedule sets forth forth, as of the Capitalization Reference Date, a complete and correct list of all outstanding Company Equity Awards, including the holder, date of grant, exercise price (if applicable) and number of partnership units held by each partner in shares of Company Capital Stock subject thereto. All outstanding shares of capital stock of the Subsidiaries of the Company OP. Other than the Company OP Units are owned by the limited partners Company, or a direct or indirect wholly-owned Subsidiary of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OPCompany, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner Encumbrances other than Encumbrances described in clause (g) of the Company OP and owns the general partnership interest free and clear definition of any Liens.
(b) “Permitted Encumbrances”. Except as set forth abovein this Section 3.1(b), as and except for changes since the Capitalization Reference Date resulting from the exercise or vesting of the close Company Equity Awards granted in accordance with Section 4.1(b), (1) there are no outstanding shares of business on the Measurement DateCompany Capital Stock, (2) there were is no Voting Debt, (i3) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar there are no securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, of the Company or any Subsidiary of the Company Subsidiaryconvertible into or exchangeable or exercisable for shares of Company Capital Stock or Voting Debt, and (ii4) voting truststhere are no options, proxies or other similar agreements or understandings warrants, calls, rights (including preemptive rights), Contracts to which the Company or any Subsidiary of the Company Subsidiary was is a party or by which it is bound in any case obligating the Company or any Subsidiary of the Company to issue, deliver, sell, purchase, redeem or acquire, or cause to be issued, delivered, sold, purchased, redeemed or acquired, additional shares of Company Capital Stock or any Voting Debt, or obligating the Company or any Subsidiary was of the Company to grant, extend or enter into any such option, warrant, call, right, commitment or agreement. There are no stockholder agreements, voting trusts or other Contracts to which the Company is a party or by which it is bound with respect relating to the voting of any shares of capital stock Company Capital Stock. Schedule 3.1(b)(iv) of the Company Disclosure Schedule contains a complete and accurate list of the name, jurisdiction of organization, capitalization and schedule of stockholders of each Subsidiary of the Company. The Company has no joint venture or other similar material equity interests in any Person or obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and the joint ventures listed on Schedule 3.1(b)(v) of the Company Disclosure Schedule. Except as set forth in Schedule 3.1(b)(vi) of the Company Disclosure Schedule, as of the date of this Agreement, none of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of its Subsidiaries has any character Indebtedness other than intercompany indebtedness owed to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any one of its capital stock or other equity interestswholly-owned Subsidiaries.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 2 contracts
Sources: Merger Agreement (Energy Xxi (Bermuda) LTD), Merger Agreement (Epl Oil & Gas, Inc.)
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 shares 24,000,000 Shares. As of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”)date hereof, (ai) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) 6,726,615 Shares were issued and outstanding, (ii) 502,685 Shares were reserved for issuance upon exercise of outstanding Options, and (biii) no shares of Company Preferred Stock 200,108 Shares were issued or outstanding. All issued and outstanding shares of are held in the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock of the Company is entitled to preemptive rightsCompany's treasury. Except as set forth aboveabove or on Schedule 3.3(a) of the Disclosure Schedule, at as of the close date of business on the Measurement Date, this Agreement: (i) no shares of capital stock or other voting securities of the Company were are issued, reserved for issuance or outstanding. There ; (ii) there are no stock appreciation rights, phantom stock units, restricted stock grants, contingent stock grants or Benefit Plans which grant awards of any of the foregoing, and there are no other outstanding contractual rights to which the Company is a party the value of which is based on the value of Shares; (iii) all outstanding shares of capital stock of the Company are, and all Shares which may be issued will be, when so issued, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights; and (iv) there are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders shareholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”)vote. Except as set forth aboveabove or in Schedule 3.3(b) of the Disclosure Schedule, as of the Measurement Datedate of this Agreement, there were are no outstanding securities, options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was of its Subsidiaries is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock voting securities of or other equity interest in, the Company or of any Company Subsidiary of its Subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners outstanding contractual obligations of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiaryof its Subsidiaries, (ii) voting truststo repurchase, proxies redeem or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of otherwise acquire any shares of capital stock of the Company or any Company Subsidiaryof its Subsidiaries. Schedule 3.3(c) of the Disclosure Schedule accurately sets forth information regarding the current exercise price, or (iii) contractual obligations or commitments date of any character grant and number of outstanding Options for each holder of Options pursuant to which the Company or any Company Subsidiary was a party or by which Option Plan. Following the Company or Effective Time, no holder of Options will have any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any right to receive shares of capital common stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights Surviving Corporation upon exercise of first refusal or similar rights with respect to any of its capital stock or other equity interestsOptions.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 2 contracts
Sources: Merger Agreement (Bosch Security Systems Corp), Merger Agreement (Detection Systems Inc)
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 shares of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”), (a) 36,809,108 30,000,000 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and (b) no 15,000,000 shares of Company Preferred Stock, of which 810,810 shares have been designated as “Series A Preferred Stock,” 1,516,302.80 shares have been designated as “Series B Preferred Stock” and 3,750,000 shares have been designated as “Series C Preferred Stock.” There are issued and outstanding 11,454,316 shares of Company Common Stock were and 810,810 shares of the Company’s “Series A Preferred Stock,” 1,516,302.80 shares of the Company’s “Series B Preferred Stock” and 2,280,548.02 shares of the Company’s “Series C Preferred Stock” as of the date hereof. There are not outstanding any adjustments made or required to be made to the conversion rates applicable to Company Preferred Stock set forth in Company’s Amended and Restated Articles of Incorporation (the “Articles of Incorporation”). There are no declared or accrued but unpaid dividends with respect to any shares of Company Common Stock or Company Preferred Stock. Each share of Company Preferred Stock is convertible into Company Common Stock on a one-to-one basis. There are no other issued and outstanding shares of Company Capital Stock as of the date hereof. Section 2.2(a) of the Company Disclosure Letter sets forth a true, correct and complete list (with names and addresses) of (i) all of the Company’s security holders as of the date hereof, the number of shares, warrants, options or outstandingother rights owned and the total number of shares of Company Common Stock reserved under the Company’s Common Stock Option and Common Stock Purchase Plan (the “Company Stock Plan”), (ii) any Persons with rights to acquire Company securities (including all holders of outstanding Company Options, whether or not granted under the Company Stock Plan, the exercise or vesting schedule, exercise price, and tax status of such options under Section 422 of the Code) pursuant to any agreement to which the Company is a party, and (iii) any Persons, to the knowledge of the Company, with rights to acquire Company securities pursuant to any agreement to which the Company is not a party, in each case, as of the date hereof. All issued and outstanding shares of the capital stock of the Company Capital Stock are duly authorized, validly issued, fully paid and non-assessableassessable and are free of any liens, charges, claims, encumbrances, preemptive rights, rights of first refusal and no class of capital stock of “put” or “call” rights created by statute, the Company’s organizational documents or any agreement to which the Company is entitled to preemptive rightsa party or by which it is bound. Except as set forth above, at the close of business on the Measurement Date, no for (A) outstanding Company Options to purchase 3,544,800 shares of capital stock or other voting securities of Company Common Stock under the Company were issuedStock Plan and 2,249,524 outstanding non-plan options for a total of 5,794,324 Company Options outstanding, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness (B) outstanding Company Common Stock Warrants to purchase 310,439 shares of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the and outstanding Company OP Units or the general partnership interests in the Series C Warrants to purchase 342,082 shares of Series C Preferred Stock, and (C) outstanding Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement DatePreferred Stock, there were are no options, warrants, calls, rights, convertible commitments or exchangeable securities(written or oral) contracts, commitmentsagreements, instruments, arrangements, understandings, commitments or undertakings of any kind undertakings, including leases, licenses, guarantees, sublicenses and subcontracts (each, a “Contract”), to which the Company or any Company Subsidiary was is a party party, or by which any of them was bound (i) it is bound, obligating the Company or any Company Subsidiary to issue, deliver deliver, sell, repurchase or sellredeem, or cause to be issued, delivered or delivered, sold, additional repurchased or redeemed, after the date hereof any shares of capital stock Company Capital Stock and/or Company Options or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend extend, accelerate the vesting and/or waive any repurchase rights of, change the price of or otherwise amend or enter into any such option, warrant, securitycall, right, commitment or undertakingagreement. At the close of business on the Measurement Date, (a) Company OP GP, Except as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) 2.2 of the Company Disclosure Letter, there are no Contracts relating to voting, purchase or sale of any Company Capital Stock (1) between or among the Company directly owns all and any of its security holders, other than written contracts granting the Company the right to purchase shares in connection with the termination of employment or service, and (2) to the Company’s knowledge, between or among any of the issued and Company’s security holders. All outstanding Company OP Units of the Company OP, free securities were issued in compliance with all applicable federal and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liensstate securities laws.
(b) Except as set forth abovefor the Company Stock Plan, the Company has never adopted or maintained any stock option plan or other plan providing for equity compensation of any Person. The Company has reserved as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the date hereof 7,243,240 shares of Company Common Stock for issuance to employees and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized directors of, and declared prior consultants to the Company, upon the exercise of options granted under the Company Stock Plan, of which 1,694,200 shares are issuable, as of the date hereof hereof, upon the exercise of outstanding, unexercised, vested options. The Company Shareholders have been paid in full (except to properly approved the extent such dividends have been publicly announced Company Stock Plan and are not yet due and payable)the grants made thereunder.
Appears in 2 contracts
Sources: Merger Agreement (Sunpower Corp), Merger Agreement (Sunpower Corp)
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 50,000,000 shares of the Company Common Stock and 50,000,000 10,000,000 shares of preferred stockPreferred Stock, par value $0.01 .01 per share (the “Company "Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”"). At the close of business on May 8January 15, 2015 (the “Measurement Date”)1997, (ai) 36,809,108 12,528,845 shares of Company Common Stock were issued and outstanding, (which includes 290,566 ii) 1,071,514 shares of Company Restricted Stock) Common Stock were issued reserved for issuance upon the exercise of outstanding Company Options and outstanding 130,000 shares of Company Common Stock have been reserved for issuance for satisfaction of contractual obligations of the Company to grant options to current and future employees of the Company and (biii) no shares of Company Common Stock were held by the Company in its treasury. As of the date hereof, there are no shares of Preferred Stock were issued or outstanding. All issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class of capital stock of the Company is entitled not subject to preemptive rights. Except as set forth aboveAs of January 15, at 1997, there were (i) 45 Company Options outstanding under the close of business on Company's 1995 Stock Incentive Plan (the Measurement Date, no "Employee Plan") to acquire 1,011,514 shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, and (ii) 4 Company Options outstanding under the Company's 1995 Non-Employee Directors' Stock Incentive Plan (the "Directors' Plan") to acquire 60,000 shares of Company Common Stock. The foregoing stock option plans of the Company OP Units or are referred to herein as the general partnership interests in "Stock Plans." Except for such Company Options, rights under the Company OP may vote Rights Agreement (“Voting Company Debt”as defined below). Except as set forth above, as and contractual obligations of the Measurement DateCompany to grant options on a total of 130,000 shares of Company Common Stock to current and future employees of the Company, there were are no options, warrants, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was of its Subsidiaries is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock voting securities of or other equity interest in, the Company or of any of its Subsidiaries. The Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units Disclosure Letter (as defined below) sets forth a schedule of the exercise prices for all outstanding Company Options as of January 15, 1997. Since January 15, 1997, no shares of the Company's capital stock have been issued other than pursuant to the exercise of Company Options already in existence on such date and the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of has not granted any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, options for any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interestsCompany.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 2 contracts
Sources: Merger Agreement (Extended Stay America Inc), Merger Agreement (Studio Plus Hotels Inc)
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 shares 500,000,000 Shares, of the Company Common Stock and 50,000,000 shares which 69,773,183 Shares were outstanding as of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8September 11, 2015 1997, and 50,000,000 shares of Preferred Stock, par value one-thousandth of one dollar ($.001) per share (the “Measurement Date”"Preferred Shares"), (a) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and (b) no shares were outstanding as of Company Preferred Stock were issued or outstandingthe close of business on September 11, 1997. All issued of the outstanding Shares have been duly authorized and are validly issued, fully paid and nonassessable. The Company has no Shares or Preferred Shares reserved for issuance, except that, as of September 11, 1997, there were 4,827,730 Shares reserved for issuance pursuant to the Company's 1993 Stock and Incentive Plan (the "Stock Plan") and 500,000 Shares reserved for issuance pursuant to the Western Save Plan. Each of the outstanding shares of the capital stock or other securities of each of the Company are Company's Subsidiaries is duly authorized, validly issued, fully paid and nonnonassessable and owned by a direct or indirect wholly-assessable, and no class of capital stock owned subsidiary of the Company is entitled to preemptive rightsCompany, free and clear of any lien, pledge, security interest, claim or other encumbrance. Except as set forth aboveabove or in the Company Disclosure Letter, at the close of business on the Measurement Datethere are no preemptive or other outstanding rights, no options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments to issue or sell any shares of capital stock or other voting securities of the Company were issuedor any of its Subsidiaries or any securities or obligations convertible or exchangeable into or exercisable for, reserved or giving any Person a right to subscribe for issuance or acquire, any securities of the Company or any of its Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued or outstanding. There are no Neither the Company nor any of its Subsidiaries has outstanding any bonds, debentures, notes or other indebtedness obligations the holders of the Company or any Company Subsidiary having which have the right to vote (or convertible into, into or exchangeable for, exercisable for securities having the right to vote) on any matters on which holders with the stockholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full matter (except to the extent such dividends have been publicly announced and are not yet due and payable"Voting Debt").
Appears in 2 contracts
Sources: Merger Agreement (American General Corp /Tx/), Merger Agreement (Western National Corp)
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 40,000,000 shares of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital and 40,000 shares of Preferred Stock”). At the close of business on May 8July 18, 2015 (the “Measurement Date”)2019, (ai) 36,809,108 15,227,562 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and outstanding; (bii) no 40,000 shares of Company Preferred Stock were issued and outstanding; (iii) 7,188,036 shares of Common Stock were reserved for issuance pursuant to the Warrants; (iv) 6,359,300 shares of Common Stock were reserved for issuance pursuant to the conversion of Preferred Stock; and (v) 459,027 shares of Common Stock were issuable upon the vesting or outstandingsettlement of outstanding RSUs. All issued and Except as set forth on Section 4.3(a) of the Company Disclosure Schedule, all outstanding shares of Common Stock and Preferred Stock are, and, at the capital stock time of issuance, all shares of Common Stock that may be issued upon the Company are vesting or settlement of any RSUs or Warrants will be, duly authorized, validly issued, fully paid and non-assessablenonassessable, not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or similar right.
(b) Except as set forth in Section 4.3(a) and in Section 4.3(b) of the Company Disclosure Schedule, there are not issued, reserved for issuance or outstanding, and no there are not any outstanding obligations of the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, (i) any capital stock of the Company or any Company Subsidiary or any securities of the Company or any Company Subsidiary convertible into or exchangeable or exercisable for shares of capital stock or voting securities of, or other equity interests in, the Company or any Company Subsidiary, (ii) any warrants, calls, options or other rights to acquire from the Company or any Company Subsidiary, or any other obligation of the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, any capital stock or voting securities of, or other equity interests in, the Company or any Company Subsidiary or (iii) any rights issued by, or other obligations of, the Company or any Company Subsidiary that are linked in any way to the price of any class of capital stock of the Company is entitled to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no or any shares of capital stock or other voting securities of any Company Subsidiary, the value of the Company, any Company were issued, reserved for issuance Subsidiary or outstanding. There are no bonds, debentures, notes or other indebtedness any part of the Company or any Company Subsidiary or any dividends or other distributions declared or paid on any shares of capital stock of the Company or any Company Subsidiary. There are not any outstanding obligations of the Company or any of the Company Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock or voting securities or other equity interests of the Company or any Company Subsidiary or any securities, interests, warrants, calls, options or other rights referred to in clause (i), (ii) or (iii) of the immediately preceding sentence. There are no debentures, bonds, notes or other Indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP Company’s shareholders may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interestsvote.
(c) Except as set forth in on Section 3.02(c4.3(c) of the Company Disclosure LetterSchedule, all none of the outstanding shares Company or any of the Company Subsidiaries is a party to (i) any agreement with respect to the voting or issuance of, or restricting the transfer of, or providing registration rights with respect to, any capital stock or voting securities of, or other equity interests in, the Company or (ii) any agreement pursuant to which any Person is entitled to elect, designate or nominate any director of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 2 contracts
Sources: Merger Agreement (Vail Resorts Inc), Merger Agreement (Peak Resorts Inc)
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 200,000,000 shares of Company Common Stock and 70,000,000 shares of Company Preferred Stock. (i) 129,849,690 shares of Company Common Stock are issued and outstanding, (ii) 58,244,308 shares of Company Preferred Stock are issued and outstanding and (iii) 15,000,000 shares of Company Common Stock are reserved and available for issuance pursuant to the Company Stock Plan, of which 13,317,334 shares are reserved and available for issuance upon exercise of outstanding Company Stock Options. As of the date hereof, no Company Stock Options, whether vested or unvested, are currently exercisable by the holders thereof. The Stockholder is the sole and exclusive owner of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”), (a) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and .
(b) no shares of Company Preferred Stock were issued or outstanding. All issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock of the Company is entitled to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a3.03(b) of the Company Disclosure Letter sets forth a true and correct list as of the date hereof of (i) the holder of each Company Stock Option and (ii) the number of partnership units Company Stock Options held by such holder. The Option Payment Schedule will set forth, as of the Effective Time, (i) a list of all Company Stock Options, (ii) the holder of such Company Stock Option, (iii) the exercise price for such Company Stock Option, (iv) whether such Company Stock Option is vested or unvested as of prior to the Effective Time and (v) the amount of Cash Option Consideration payable to each partner holder.
(c) Except as otherwise set forth in this Section 3.03, there are (i) no outstanding shares of capital stock of, or other equity or voting interests in, the Company OP. Other than the Company OP Units owned by the limited partners Company, (ii) no outstanding securities of the Company OP set forth in Section 3.02(aconvertible into or exchangeable for shares of capital stock of, or other equity or voting interests in, the Company, (iii) no outstanding options, warrants, rights or other commitments or agreements to acquire from the Company or any Subsidiary of the Company, or that obligate the Company or any Subsidiary of the Company Disclosure Letterto issue, any capital stock of, or other equity or voting interests in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interests in, the Company, (iv) no obligations of the Company or any of its Subsidiaries to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interests in, the Company directly owns all and (v) no other obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of any of the issued foregoing or dividends paid thereon (the items in clauses (i), (ii), (iii), (iv) and outstanding (v) being referred to collectively as “Company OP Units Securities”). None of the Company OPor any of its Subsidiaries is a party to any stockholders’ agreement, free voting trust agreement, registration rights agreement or other similar agreement or understanding relating to any Company Securities or any other agreement relating to the disposition, voting or dividends with respect to any Company Securities. All outstanding shares of Company Common Stock and clear of any Liens, and all Company OP Units Preferred Stock have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Fleetcor Technologies Inc)
Capital Structure. (a) The As of the date hereof, the authorized capital stock of the Company Target consists of 1,000,000,000 22,000,000 shares of the Company Target Common Stock and 50,000,000 shares of preferred stockStock, par value $0.01 0.001 per share (the “Company share, of which there are issued and outstanding 6,695,925 shares, and 5,600,000 shares of Target Preferred Stock”, andpar value $0.001 per share, together of which there are issued and outstanding 507,000 shares of Series 1 Preferred Stock, 1,584,750 shares of Series 2 Preferred Stock, 997,017 shares of Series 3 Preferred Stock, and 1,590,000 shares of Series 4 Preferred Stock, all of which series of Preferred Stock are convertible into shares of Common Stock pursuant to the terms of the Target's Certificate. Also outstanding on the date hereof are the Convertible Notes, which are convertible in accordance with the Company terms of the Convertible Notes into 1,481,250 shares of Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”), (a) 36,809,108 and Warrants exercisable for 928,591 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and (b) no shares of Company Preferred Stock were issued or outstanding. All issued and outstanding shares of the capital stock Target Common Stock and Target Preferred Stock are duly authorized, validly issued, fully paid, and non- assessable. As of the Company date hereof, there are 1,019,500 shares of Common Stock reserved for issuance under option agreements (the "Target Stock Option Plan"). Except for the rights created pursuant to this Agreement and the rights disclosed in the preceding sentences, there are no other options, warrants, calls, rights, commitments or agreements of any character to which Target is a party or by which it is bound obligating Target to issue, deliver, sell, repurchase or redeem or cause to be issued, delivered, sold, repurchased or redeemed, any shares of Target Capital Stock or obligating Target to grant, extend, accelerate the vesting of, change the price of, or otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. All shares of Common Stock issuable upon conversion of the Preferred Stock or upon exercise of the options or warrants described in this Section 2.4, will be, when issued pursuant to the respective terms of such Preferred Stock or options or warrants, duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock of the Company is entitled to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstandingnonassessable. There are no bondsother contracts, debenturescommitments or agreements relating to voting, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible intopurchase, or exchangeable for, securities having the right to vote) on any matters on which holders sale of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound Target's Capital Stock (i) obligating the Company between or among Target and any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or its shareholders and (ii) obligating the Company to Target's knowledge, between or among any Company Subsidiary of Target's shareholders. All shares of outstanding Target Capital Stock and rights to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units acquire Target Capital Stock were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns compliance with all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Lawslaws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Digitalpreviews Com Inc), Agreement and Plan of Reorganization (Intraop Medical Corp)
Capital Structure. (a) The authorized capital stock of the Company Trega consists of 1,000,000,000 40,000,000 shares of the Company Trega Common Stock and 50,000,000 5,000,000 shares of preferred stock, $.001 par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”"TREGA PREFERRED STOCK"). At the close of business on May 8November 2, 2015 (the “Measurement Date”), (a) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and (b) no shares of Company Preferred Stock were issued or outstanding. All issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock of the Company is entitled to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound 1998: (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional approximately 13,995,461 shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP Trega Common Stock were issued and outstanding; (dii) no Class B Contingent Units up to approximately 4,960,465 shares of Trega Common Stock were reserved (as defined in or available) for issuance upon the Company OP Limited Partnership Agreementexercise of options granted (or available for grant) were issued and outstanding; by Trega under its 1992, 1995 or 1996 Stock Plans (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding"TREGA OPTIONS"); and (fiii) no other partnership interests up to approximately 250,000 shares of Trega Common Stock were issued and outstanding or issuablereserved for issuance under the Trega 1996 Employee Stock Purchase Plan. There No shares of Trega Preferred Stock are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liensoutstanding.
(b) Except as set forth aboveThe authorized capital stock of Acquisition Corporation consists of 1,000 shares of common stock, of which, as of the close date of business on the Measurement Datethis Agreement, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that 100 shares are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or issued and outstanding and held by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interestsTrega.
(c) Except as contemplated by this Agreement, as set forth on SCHEDULE 4 attached hereto or as referenced in Section 3.02(c) the Trega SEC Documents (defined below), as of the Company Disclosure Letterdate of this Agreement there are no options, all warrants or other rights, agreements, arrangements or commitments relating to the issued or unissued capital stock of the outstanding Trega or any subsidiary of Trega, including Acquisition Corporation (each a "Trega Subsidiary"), obligating Trega or any Trega Subsidiary to issue or sell any shares of capital stock of, or other equity interests in, Trega or any Trega Subsidiary. Between June 30, 1998, and the date of each Company Subsidiary are owned this Agreement, no shares of Trega Common Stock have been issued by Trega, except pursuant to the Companyoptions, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock warrants or other equity interests other than transfer rights, agreements, arrangements and other restrictions under applicable federal and state securities Lawscommitments described in SCHEDULE 4 or referenced in the Trega SEC Documents (including the exhibits thereto), in each case in accordance with their respective terms.
(d) All dividends There are no outstanding contractual obligations of Trega or other distributions on the any Trega Subsidiary to repurchase, redeem or otherwise acquire any shares of Company Trega Common Stock and Stock, or any material dividends capital stock of, or other distributions on any securities of equity interests in, any Company Subsidiary which have been authorized and declared prior Trega Subsidiary. Prior to the date hereof hereof, Trega has made available to NaviCyte true and correct copies of all agreements to which Trega is a party pursuant to which holders of Trega securities have been paid granted any registration rights in full (except to the extent such dividends have been publicly announced and are not yet due and payable)respect thereof.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Trega Biosciences Inc), Agreement and Plan of Reorganization (Grass George M PHD)
Capital Structure. (a) The authorized capital stock of the Company ----------------- consists solely of 1,000,000,000 shares of the Company Common Stock (i) 20,000,000 Shares and 50,000,000 (ii) 5,000,000 shares of preferred stock, par value $0.01 .001 per share share, (the “Company "Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”Shares"). At the close of business on May 8March 22, 2015 1999: (the “Measurement Date”), (ai) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) 8,308,107 Shares were issued and outstanding, (ii) no Preferred Shares were issued and outstanding, (iii) 1,614,896 Shares were reserved for issuance pursuant to outstanding Options granted under the Stock Option Plans, (iv) 260,706 Shares were reserved for issuance upon exercise of the Warrants, (v) no Shares were held by Company in its treasury, (vi) 100,000 shares of Series A Participating Preferred Stock were reserved for issuance pursuant to the Company Rights Agreement and (bvii) 600,000 Shares have been reserved for issuance under the 1996 Employee Stock Purchase Plan, of which no more than an additional 80,000 Shares will be issued prior to April 30, 1999. Except as set forth in the immediately preceding sentence, at the close of business on March 22, 1999, no shares of capital stock or other equity securities of Company Preferred Stock were issued issued, reserved for issuance or outstanding. All issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class of capital stock of the Company is entitled not subject to preemptive rights. Except as set forth abovespecified above or in Section 4.1(d) of the Disclosure Schedule, neither Company nor any Subsidiary of Company has or is subject to or bound by or, at or after the close Effective Time will have or be subject to or bound by, any outstanding option, warrant, call, subscription or other right (including any preemptive right), agreement or commitment which (i) obligates Company or any material Subsidiary of business on Company to issue, sell or transfer, or repurchase, redeem or otherwise acquire, any shares of the Measurement Datecapital stock of Company or any Subsidiary of Company, no (ii) restricts the transfer of any shares of capital stock of Company or other any of its Subsidiaries, or (iii) relates to the voting securities of the any shares of capital stock of Company were issued, reserved for issuance or outstandingany of its Subsidiaries. There are no No bonds, debentures, notes or other indebtedness of the Company or any Subsidiary of Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders the stockholders of Company or any Subsidiary of Company may vote are issued or outstanding. Section 4.1(d) of the Company Common StockDisclosure Schedule accurately sets forth information as of the date hereof regarding the exercise price, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”)date of grant and number of granted Options for each holder of Options pursuant to any Stock Option Plan. Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest specified in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a4.1(d) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure LetterSchedule, all of the outstanding shares of capital stock or other equity interests of each Subsidiary of Company Subsidiary have been duly authorized, validly issued, fully paid and nonassessable and are owned by the Company, by another one or more Subsidiaries of Company Subsidiary or by the Company and another Company Subsidiaryone or more such Subsidiaries, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever Liens (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid as defined in full (except to the extent such dividends have been publicly announced and are not yet due and payableSection 9.3).
Appears in 2 contracts
Sources: Merger Agreement (Interlink Computer Sciences Inc), Merger Agreement (Sterling Software Inc)
Capital Structure. (ai) The authorized share capital of ▇▇▇▇▇▇▇▇▇ consists of 2,194,910,776 ▇▇▇▇▇▇▇▇▇ Ordinary Shares of £0.125 each. At the close of business on September 27, 2016 (the ▇▇▇▇▇▇▇▇▇ Measurement Date), (A) 1,131,842,109 ▇▇▇▇▇▇▇▇▇ Ordinary Shares were issued and outstanding, (B) no ▇▇▇▇▇▇▇▇▇ Ordinary Shares were held by ▇▇▇▇▇▇▇▇▇ in its treasury, (C) 26,012,631 ▇▇▇▇▇▇▇▇▇ Ordinary Shares were ▇▇▇▇▇▇▇▇▇ Restricted Shares, (D) no ▇▇▇▇▇▇▇▇▇ Ordinary Shares were subject to issuance pursuant to outstanding ▇▇▇▇▇▇▇▇▇ Options and (E) no ▇▇▇▇▇▇▇▇▇ Ordinary Shares were subject to issuance pursuant to ▇▇▇▇▇▇▇▇▇ Restricted Stock Units. Section 4.2(c)(i) of the ▇▇▇▇▇▇▇▇▇ Disclosure Schedule sets forth a true and complete list, as of the ▇▇▇▇▇▇▇▇▇ Measurement Date, of each tranche of ▇▇▇▇▇▇▇▇▇ Options and any other equity awards issued by ▇▇▇▇▇▇▇▇▇, including with respect to each such tranche and other award, as applicable, the date of grant, vesting schedule, exercise price, expiration date and the number of shares of ▇▇▇▇▇▇▇▇▇ Ordinary Shares subject thereto. Five Business Days prior to the Closing Date, ▇▇▇▇▇▇▇▇▇ shall provide Janus a revised version of such information, updated as of such date.
(ii) The authorized capital stock of the Company Merger Sub consists of 1,000,000,000 1,000 shares of the Company Common Stock and 50,000,000 shares of preferred common stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Merger Sub Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “▇▇▇▇▇▇▇▇▇ Measurement Date”), (a) 36,809,108 100 shares of Company Merger Sub Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and outstanding.
(biii) no shares Except as set forth in Section 4.2(c)(iii) of Company Preferred Stock were issued or outstanding. All the ▇▇▇▇▇▇▇▇▇ Disclosure Schedule, all issued and outstanding shares of: (A) ▇▇▇▇▇▇▇▇▇ are, and all shares of the capital stock ▇▇▇▇▇▇▇▇▇ that may be issued as permitted by this Agreement or otherwise shall be, when issued, duly authorized, validly issued, fully paid up and not subject to preemptive rights; and (B) Merger Sub are, and all shares of the Company are Merger Sub that may be issued as permitted by this Agreement or otherwise shall be, when issued, duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class of capital stock of the Company is entitled not subject to preemptive rights. Except as set forth abovein this Section 4.2(c) and except for changes since the ▇▇▇▇▇▇▇▇▇ Measurement Date resulting from the issuance of ▇▇▇▇▇▇▇▇▇ Ordinary Shares pursuant to ▇▇▇▇▇▇▇▇▇ Options and awards of ▇▇▇▇▇▇▇▇▇ Restricted Shares and ▇▇▇▇▇▇▇▇▇ Restricted Stock Units, at the close of business on the Measurement Dateor as expressly permitted by Section 5.1(b)(ii), no (A) there are not issued or outstanding (x) any shares of capital stock or other voting securities of ▇▇▇▇▇▇▇▇▇ or Merger Sub, (y) any securities of ▇▇▇▇▇▇▇▇▇, Merger Sub or any other subsidiaries of ▇▇▇▇▇▇▇▇▇ convertible into or exchangeable or exercisable for, or based upon the Company were issuedvalue of, reserved for issuance shares or outstanding. There voting securities of ▇▇▇▇▇▇▇▇▇ or (z) any warrants, calls, options or other rights to acquire from ▇▇▇▇▇▇▇▇▇, Merger Sub or any other subsidiaries of ▇▇▇▇▇▇▇▇▇ (including any subsidiary trust), or obligations of ▇▇▇▇▇▇▇▇▇, Merger Sub or any other subsidiaries of ▇▇▇▇▇▇▇▇▇ to issue, any shares, capital stock, voting securities or securities convertible into or exchangeable or exercisable for, or based upon the value of, shares or voting securities of ▇▇▇▇▇▇▇▇▇ or Merger Sub, and (B) there are no bondsoutstanding obligations of ▇▇▇▇▇▇▇▇▇, debentures, notes or other indebtedness of the Company Merger Sub or any Company Subsidiary having the right other subsidiaries of ▇▇▇▇▇▇▇▇▇ to vote (repurchase, redeem or convertible into, otherwise acquire any such securities or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares any such securities.
(iv) There are no voting trusts or other agreements or understandings to which ▇▇▇▇▇▇▇▇▇, Merger Sub or any other subsidiaries of ▇▇▇▇▇▇▇▇▇ is a party with respect to the voting of shares, capital stock or other equity interests inof ▇▇▇▇▇▇▇▇▇, or any security convertible or exercisable for or exchangeable into any capital stock of Merger Sub or other equity interest in, the Company or subsidiaries of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking▇▇▇▇▇▇▇▇▇. At the close of business on the Measurement Date, (a) Company OP GP, Except as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a4.2(c)(iv) of the Company ▇▇▇▇▇▇▇▇▇ Disclosure LetterSchedule, the Company directly owns all none of the issued and outstanding Company OP Units of the Company OP▇▇▇▇▇▇▇▇▇, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company Merger Sub or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting subsidiaries of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary ▇▇▇▇▇▇▇▇▇ has granted any preemptive rights, anti-dilutive rights or rights of first refusal refusal, registration rights or similar rights with respect to any of its capital stock shares or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary (as applicable) that are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Lawsin effect.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Janus Henderson Group PLC), Agreement and Plan of Merger (Janus Capital Group Inc)
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 20,000,000 shares of the Company Common Stock and 50,000,000 shares of preferred stockStock, par value $0.01 .01 per share share. Subject to any Permitted Changes (the “Company Preferred Stock”as defined in Section 6.1(d)) there were, and, together with the Company Common Stock, the “Company Capital Stock”). At as of the close of business on May 8January 16, 2015 1998: (the “Measurement Date”), (ai) 36,809,108 9,174,261 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and outstanding; (bii) no shares of Company Preferred Common Stock were issued are held in the treasury of the Company; (iii) 1,634,853 shares of Company Common Stock are reserved for issuance upon exercise of outstanding Company Stock Options (of which options 190,500 shares will be cancelled prior to the consummation of the Offer); and (iv) 767,200 shares of Company Common Stock issuable upon exercise of outstanding Warrants (the 'Warrants'). Section 4.3 of the Disclosure Schedule sets forth the exercise price for the outstanding Company Stock Options and the Warrants. Except as set forth above or in Section 3.3 of the Disclosure Schedule, no shares of capital stock or other equity securities of the Company are issued, reserved for 8 issuance or outstanding. All issued and outstanding shares of the capital stock of the Company are are, and all shares which may be issued pursuant to the Stock Option Plan including any increases pursuant to existing contractual obligations will be, when issued, duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class of capital stock of the Company is entitled not subject to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities Section 4.3 of the Company were issuedDisclosure Schedule, reserved for issuance or outstanding. There there are no outstanding bonds, debentures, notes or other indebtedness or other securities of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders stockholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”)vote. Except as set forth above, as of the Measurement Datethere are no outstanding securities, there were no options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was of its Subsidiaries is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock voting securities of or other equity interest in, the Company or of any Company Subsidiary of its Subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment or undertaking. At the close of business on the Measurement Dateright, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).commitment,
Appears in 2 contracts
Sources: Merger Agreement (Sunbeam Corp/Fl/), Merger Agreement (Sunbeam Corp/Fl/)
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 20,000,000 Shares and 5,000,000 shares of the Company Common Stock and 50,000,000 shares of preferred stockPreferred Stock, par value $0.01 .01 per share (the “Company "Preferred Stock”, and, together with ") of the Company Common Stock, Company. As of the “Company Capital Stock”). At the close date of business on May 8, 2015 (the “Measurement Date”)this Agreement, (ai) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) 6,733,770 Shares were issued and outstanding and outstanding, (bii) no Shares were held by the Company in its treasury or by any of the Company's subsidiaries, (iii) 1,139,556.25 shares of Company Preferred Stock were issued or and outstanding, (iv) 725,500 Shares were reserved for issuance pursuant to the outstanding Company Options, and (v) 150,000 Shares were reserved for issuance upon exercise of warrants to purchase Shares disclosed in Section 4.1(c) of the Disclosure Schedule (the "Warrants"). All issued and outstanding shares of the capital stock of the Company are are, and all shares which may be issued pursuant to the Stock Plans will be, when issued, duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class of capital stock of the Company is entitled not subject to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities in Section 4.1(c) of the Company were issuedDisclosure Schedule, reserved for issuance or outstanding. There there are no not any bonds, debentures, notes or other indebtedness or securities of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders shareholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”)vote. Except as set forth above, as above and in Section 4.1(c) of the Measurement DateDisclosure Schedule, there were no are not any securities, options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was of its subsidiaries is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary of its subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock voting securities of or other equity interest in, the Company or of any Company Subsidiary of its subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its subsidiaries to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c4.1(c) of the Disclosure Schedule, there are no outstanding rights, commitments, agreements, arrangements or undertakings of any kind obligating the Company Disclosure Letteror any of its subsidiaries to repurchase, all of the outstanding redeem or otherwise acquire any shares of capital stock or other equity interests voting securities of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear or any of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind its subsidiaries or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any the type described in the two immediately preceding sentences. The Company Subsidiary which have been authorized has delivered to Parent complete and declared prior to correct copies of the Stock Plans and all forms of Company Options. Section 4.1(c) of the Disclosure Schedule sets forth a complete and accurate list of all Company Options and Warrants outstanding as of the date hereof have been paid in full (except to of this Agreement and the extent such dividends have been publicly announced exercise price of each outstanding Company Option and are not yet due and payable)Warrant.
Appears in 2 contracts
Sources: Merger Agreement (Sheridan Energy Inc), Merger Agreement (Calpine Corp)
Capital Structure. (a) The authorized capital stock of Seller (the Company "Seller Capital Stock") consists of 1,000,000,000 100,000,000 Class A Shares, 15,000,000 Class B Shares and 5,000,000 shares of the Company Common Stock and 50,000,000 shares of preferred stockPreferred Stock, par value $0.01 .01 per share (the “Company "Preferred Stock”Shares", and, and together with the Company Class A Shares and the Class B Shares, the "Seller Shares"). As of the date hereof, 18,106,789 Class A Shares, 7,577,329 Class B Shares and no Preferred Shares are issued and outstanding, 2,100,000 Class A Shares are reserved for issuance pursuant to the Seller Stock Option Plans (as defined in Section 6.7) and 320,000 Class A Shares are reserved for issuance pursuant to the Warrants for the Purchase of Shares of Common Stock, dated as of September 9, 1994 and October 2, 1996 issued by Seller to RSL or one or more of his affiliates (collectively, the “Company Capital Stock”"Seller Warrants"). At the close of business on May 8, 2015 (the “Measurement Date”), (a) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and .
(b) Except as set forth in the Seller Disclosure Schedule, there are no outstanding stock appreciation rights or rights to receive shares of Company Preferred Seller Capital Stock were issued on a deferred basis other than pursuant to the Seller Incentive Plans. The Seller Disclosure Schedule sets forth a complete and correct list, as of the date hereof, of the holders of all Seller Stock Options, Seller SARs or outstandingSeller Warrants, the number of shares subject to each such option, stock appreciation right or warrant and the exercise prices or base prices thereof. All issued and outstanding shares of the capital stock of the Company are Seller, and all shares which may be issued, will be, when issued, duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class of capital stock of the Company is entitled not subject to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. .
(c) There are no bonds, debentures, notes or other indebtedness Indebtedness of the Company or any Company Subsidiary Seller having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders shareholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP Seller may vote vote.
(“Voting Company Debt”). d) Except as set forth above, above or as of the Measurement Dateotherwise contemplated by this Agreement, there were are no outstanding securities, options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was Seller is a party or by which any of them was it is bound (i) obligating the Company or any Company Subsidiary Seller to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, voting securities of Seller or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary Seller to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners outstanding contractual obligations of the Company OP Seller to repurchase, redeem or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of otherwise acquire any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interestsSeller.
(ce) Except As of the date of this Agreement, the Principal Seller Shareholders are the record owners of a number of Class A Shares and Class B Shares that in the aggregate constitutes approximately 69% of the votes entitled to be cast at the Seller Shareholders Meeting (as set forth defined in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable6.2).
Appears in 2 contracts
Sources: Reorganization Agreement (Lauder Ronald S), Reorganization Agreement (Central European Media Enterprises LTD)
Capital Structure. (a) The authorized capital stock of the Company Purchaser consists of 1,000,000,000 200,000,000 shares of the Company Common Stock and 50,000,000 shares of preferred stockStock, par value $0.01 .01 per share ("Purchaser Common Shares") and 20,000,000 shares of Preferred Stock, par value $.01 per share (the “Company "Purchaser Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”"). At the close of business on May 8July 23, 2015 (the “Measurement Date”)1999, (ai) 36,809,108 shares of Company 60,806,456 Purchaser Common Stock (which includes 290,566 shares of Company Restricted Stock) Shares were issued and outstanding outstanding, (ii) 10,607,135 options to purchase Purchaser Common Shares were available for issuance under Purchaser's stock option plans, long-term incentive plans, annual incentive plans and stock compensation plans (the "Purchaser Share Plans") and (biii) no shares 12,373,551 Purchaser Common Shares were reserved for issuance upon exercise of Company Preferred Stock were issued stock options to purchase Purchaser Common Shares under the Purchaser Share Plans or outstandingotherwise (the "Purchaser Common Shares Options"). All issued and outstanding shares On the date of the capital stock of the Company are duly authorizedthis Agreement, validly issued, fully paid and non-assessable, and no class of capital stock of the Company is entitled to preemptive rights. Except except as set forth above, at the close of business on the Measurement Dateabove in this Section 3.2(b), no shares of capital stock or other voting securities of the Company Purchaser were issued, reserved for issuance or outstanding. There All outstanding shares of capital stock of Purchaser are no bondsduly authorized, debenturesvalidly issued, notes or other indebtedness of the Company or any Company Subsidiary having the right fully paid and nonassessable and not subject to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”)preemptive rights. Except (A) for the Purchaser Common Shares Options and (B) as set forth above, as of in Schedule 3.2(b) to the Measurement DatePurchaser Disclosure Letter, there were are no outstanding securities, options, stock appreciation rights, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company Purchaser or any Company Purchaser Subsidiary was is a party or by which any of them was bound (i) such entity is bound, obligating the Company Purchaser or any Company Purchaser Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock stock, voting securities or other equity ownership interests in, of Purchaser or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Purchaser Subsidiary or any Voting Company Debt or (ii) obligating the Company Purchaser or any Company Purchaser Subsidiary to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Capital Structure. (a) The authorized capital stock of the Company Gasco consists of 1,000,000,000 105,000,000 shares of capital stock, of which 100,000,000 shares are authorized to be issued as common stock (the Company "Common Stock Stock"), and 50,000,000 5,000,000 shares are authorized to be issued as preferred stock. On the date hereof, Gasco has (i) 25,700,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”), (a) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were common stock issued and outstanding and no shares of preferred stock outstanding; (bii) no shares of Company Preferred Stock were issued or outstanding. All issued and outstanding stock held in its treasury; (iii) 3,300,000 shares of common stock reserved for issuance upon exercise of outstanding stock options (the "Gasco Stock Options") and (iv) 768,333 shares of common stock that it may be required to issue under agreements. Except as set forth above and as contemplated by this Agreement there are no shares of capital stock of Gasco or shares of capital stock of any Gasco Subsidiary issued, reserved for issuance or outstanding, and there are no stock appreciation rights, phantom stock rights or other contractual rights the Company value of which is determined in whole or in part by the value of any capital stock of Gasco or any Gasco Subsidiary. The Gasco Stock Options and any other security convertible into or exercisable or exchangeable for Common Stock (each of which shall be determined on an as if converted, exercised or exchanged basis) are herein referred to as "Gasco Stock Equivalents." Each outstanding share of Common Stock is, and each share of common stock which may be issued pursuant to the Gasco Stock Options will be, when issued, duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class of capital stock of the Company is entitled not subject to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no outstanding bonds, debentures, notes or other indebtedness of the Company Gasco or any Company Gasco Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters matter on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP Gasco's stockholders may vote (“Voting Company Debt”)except for that certain promissory note dated May 15, 2001 payable to FECC. Except as set forth above, as of the Measurement Datethere are no securities, there were no options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company obligating Gasco or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary Gasco Subsidiaries to issue, deliver or sellsell or create, or cause to be issued, delivered or soldsold or created, additional shares of capital stock or other equity interests in, voting securities or Gasco Stock Equivalents or stock equivalents of any of the Gasco Subsidiaries or obligating Gasco or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary Gasco Subsidiaries to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners outstanding contractual obligations of Gasco or any of the Company OP Gasco Subsidiaries to repurchase, redeem or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of otherwise acquire any shares of capital stock of the Company Gasco or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interestsGasco Subsidiaries.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Capital Structure. (a) The As of the date hereof, the authorized capital stock of the Company consists of 1,000,000,000 five hundred million (500,000,000) shares of common stock, with no par value.
(b) As of the date hereof:
(i) Thirty-one million one-hundred ninety-four thousand two-hundred forty-three (31,194,243) shares of Common Stock are issued and outstanding, all of which were validly issued, fully paid and nonassessable and were not issued in violation of any preemptive or similar right;
(ii) No shares were held in the treasury of the Company; and
(iii) Three million forty-eight thousand seven-hundred eighty (3,048,780) shares were reserved for the Company Stock Option Plan.
(c) Section 3.2(c) of the Company Disclosure Schedule contains a correct and complete list as of the date of this Agreement of each outstanding Company Stock Option, all of which have already vested, including the holder, date of grant, exercise price and number of shares of Company Common Stock subject thereto
(d) Section 3.2(d) of the Company Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, of each Shareholder who holds Company Common Stock, together with their address and the number of shares of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share held by such Shareholder.
(the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”), (ae) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and (b) no shares of Company Preferred Stock were issued or outstanding. All issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock of the Company is entitled to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities in Section 3.2(e) of the Company were issued, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement DateDisclosure Schedule, there were are no options, warrants, rightscalls, convertible rights or exchangeable securities, commitments, or undertakings of any kind agreements to which the Company or any Company Subsidiary was is a party or by which any of them was the Company is bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, securitycall, commitment right or undertaking. At the close of business on the Measurement Dateagreement, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There there are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or contractual rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was is a party or by party, the value of which is based on the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock value of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company SubsidiaryCommon Stock. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c3.2(e) of the Company Disclosure LetterSchedule, there are no outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any shares of Company Common Stock.
(f) Section 3.2(f) of the Company Disclosure Schedule sets forth a complete list of all Subsidiaries of the Company and all corporations, limited liability companies, partnerships or other entities in which the Company has an interest. All of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by of the Company have been validly issued, are fully paid and another nonassessable. Section 3.2(f) of the Company Subsidiary, free Disclosure Schedule lists the legal and clear beneficial owner of record as to all pledges, liens, charges, mortgages, encumbrances and security interests of any kind outstanding shares or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Lawsof each Subsidiary of the Company.
(dg) All dividends The Company does not have any outstanding bonds, debentures, notes or other distributions on obligations the shares holders of Company Common Stock and any material dividends which have the right to vote (or other distributions which are convertible into, or exchangeable or exercisable for, securities having the right to vote) with the Shareholders on any securities matter.
(h) To the Knowledge of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid Company, each Qualified Shareholder set forth on Schedule A is an “accredited investor” within the meaning of SEC Rule 501 of Regulation D, as presently in full (except to the extent such dividends have been publicly announced and are not yet due and payable)effect.
Appears in 1 contract
Sources: Merger Agreement (Kratos Defense & Security Solutions, Inc.)
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 75,000,000 shares of the Company Common Stock and 50,000,000 5,000,000 shares of preferred stock, par value $0.01 .01 per share (the “Company "Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”"). At the close time of business on May 8execution of this Agreement, 2015 (i) 37,711,424 shares of Common Stock were issued and outstanding, including associated Preferred Share Purchase Rights (the “Measurement Date”"Rights") issued pursuant to the Rights Agreement, dated as of April 15, 1996 (the "Rights Agreement"), between the Company and Continental Stock Transfer and Trust Company, as Rights Agent (the "Rights Agent"), (a) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and (bii) no shares of Company Preferred Stock were issued or and outstanding. All issued and outstanding , (iii) 2,343,900 shares of Common Stock were held by the capital stock Company in its treasury or by any of the Company are duly authorized, validly issued, fully paid and non-assessableCompany's subsidiaries, and no class (iv) 5,003,136 shares of capital stock of the Common Stock were reserved for issuance pursuant to outstanding Company is entitled to preemptive rightsOptions. Except as set forth above, at the close time of business on the Measurement Dateexecution of this Agreement, no shares of capital stock or other voting securities of the Company were are issued, reserved for issuance or outstanding. There All outstanding shares of capital stock of the Company are, and all shares which may be issued pursuant to the Stock Plans will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights. Other than the Shares, there are no not any bonds, debentures, notes or other indebtedness or securities of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders shareholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”)vote. Except as set forth above, as above and in Section 4.1(c) of the Measurement DateDisclosure Schedule, there were no are not any securities, options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was of its subsidiaries is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary of its subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock voting securities of or other equity interest in, the Company or of any Company Subsidiary of its subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its subsidiaries to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP outstanding rights, commitments, agreements, arrangements or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear undertakings of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, kind obligating the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock subsidiaries to repurchase, redeem or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding otherwise acquire any shares of capital stock or other equity interests voting securities of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear or any of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind its subsidiaries or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any the type described in the two immediately preceding sentences (other than in connection with the exercise of outstanding Company Subsidiary which have been authorized Options). The Company has delivered to Parent complete and declared prior to correct copies of the Stock Plans and all forms of Company Options. Section 4.1(c) of the Disclosure Schedule sets forth a complete and accurate list of all Company Options outstanding as of the date hereof have been paid in full (except to of this Agreement and the extent such dividends have been publicly announced and are not yet due and payable)exercise price of each outstanding Company Option.
Appears in 1 contract
Capital Structure. (a) The As of the date hereof, the authorized capital stock of the Company consists of 1,000,000,000 shares of the Company Common Stock 20,000,000 Shares and 50,000,000 2,000,000 shares of preferred stock, par value $0.01 1.00 per share (the “Company "Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”"). At As of the close of business on May 8, 2015 date hereof: (the “Measurement Date”), (ai) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were 12,346,974 Shares are issued and outstanding and 11,917,681 Shares are outstanding; (bii) no shares of Company Preferred Stock were issued or outstanding. All are issued and outstanding; and (iii) 1,248,863 Shares are reserved for issuance pursuant to Employee Options outstanding shares under the Stock Option Plans. Except for the issuance of Shares pursuant to the capital stock exercise of outstanding Employee Options, there are no employment, executive termination or similar agreements providing for the Company issuance of Shares. No Shares are duly authorized, validly issued, fully paid and non-assessableheld by the Company, and no class of capital stock Shares are held by any Subsidiary of the Company is entitled to preemptive rightsCompany. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no No bonds, debentures, notes or other instruments or evidence of indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exercisable or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP stockholders may vote (“"Company Voting Company Debt”)") are issued or outstanding. All outstanding Shares are validly issued, fully paid and nonassessable and are not subject to preemptive or other similar rights. Except as set forth aboveon Schedule 3.1(b), as all outstanding shares of capital stock of the Measurement DateSubsidiaries of the Company are owned by the Company or a direct or indirect Subsidiary of the Company, free and clear of all liens, charges, encumbrances, claims and options of any nature. Except as set forth in this Section 3.1(b), there were are outstanding: (i) no shares of capital stock, Company Voting Debt or other voting securities of the Company; (ii) no securities of the Company or any Subsidiary of the Company convertible into, or exchangeable or exercisable for, shares of capital stock, Company Voting Debt or other voting securities of the Company or any Subsidiary of the Company; and (iii) no options, warrants, calls, rights (including preemptive rights), convertible commitments or exchangeable securities, commitments, or undertakings of any kind agreements to which the Company or any Subsidiary of the Company Subsidiary was is a party or by which it is bound, in any of them was bound (i) case obligating the Company or any Subsidiary of the Company Subsidiary to issue, deliver deliver, sell, purchase, redeem or sellacquire, or cause to be issued, delivered delivered, sold, purchased, redeemed or soldacquired, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of Company Voting Debt or other equity interest in, voting securities of the Company or of any Company Subsidiary of the Company, or any Voting Company Debt or (ii) obligating the Company or any Subsidiary of the Company Subsidiary to issue, grant, extend or enter into any such option, warrant, securitycall, right, commitment or undertakingagreement. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than Except as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure LetterSchedule 3.1(b), since June 30, 1997, the Company directly owns all has not (i) granted any options, warrants or rights to purchase shares of Company Common Stock or (ii) amended or repriced any Employee Option or the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rightsStock Option Plans. The Company OP GP is has previously delivered to Parent a complete and correct list of all outstanding options, warrants and rights to purchase shares of Company Common Stock and the sole general partner of exercise prices relating thereto. Except for the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth aboveOption Agreements, there are not as of the close of business on date hereof and there will not be at the Measurement DateEffective Time any stockholder agreements, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, voting trusts or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was is a party or by which the Company or any Company Subsidiary was it is bound with respect relating to the voting of any shares of the capital stock of the Company which will limit in any way the solicitation of proxies by or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock on behalf of the Company from, or any Company Subsidiary. Neither the casting of votes by, the stockholders of the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to the Merger. There are no restrictions on the Company to vote the stock of any of its capital stock or other equity interestsSubsidiaries.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Capital Structure. (a) The authorized share capital stock of the Company consists of 1,000,000,000 shares 125,000,000 Common Shares. As of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 820, 2015 (the “Measurement Date”)2008, (a) 36,809,108 shares of Company 50,351,566 Common Stock (which includes 290,566 shares of Company Restricted Stock) Shares were issued and outstanding and outstanding. No Common Shares are held by any subsidiary of the Company. Other than restricted Common Shares (b"Restricted Shares") granted to employees of the Company, since April 30, 2008 to the date of this Agreement, there have been no issuances of shares of the Company Preferred Stock were issued or outstandingany other securities of the Company. All issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable, and no class of the Company's share capital stock of the Company is entitled to preemptive rights. Except as set forth aboveAs of May 20, at 2008, options to purchase 181,265 Common Shares ("Stock Options") and 3,959,724 Restricted Shares were outstanding. No Stock Option
(i) has a per share exercise price lower than the close fair market value of business a Common Share on the Measurement Datedate of grant of such Stock Option, no shares (ii) has had its grant date backdated or (iii) has had its grant date delayed in order to take advantage of capital stock the release or other voting securities public announcement of the Company were issued, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness of material non-public information regarding the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to voteits subsidiaries. Section 4.2(a) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set Disclosure Schedules sets forth abovea correct and complete list, as of the Measurement Datedate of this Agreement, of outstanding Restricted Shares and Stock Options, including the holder thereof, the date of grant, the term (in the case of Stock Options), the number of Common Shares subject to such Stock Option, the Company stock plan, if applicable, under which such award was granted and, where applicable, the exercise price.
(b) Except as otherwise set forth in this Section 4.2(b) or in Section 4.2(b) of the Disclosure Schedules, as of the date of this Agreement, there were are no securities, options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was of its subsidiaries is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary of its subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock voting securities of or other equity interest in, the Company or any of any Company Subsidiary its subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its subsidiaries to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units As of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership date of this Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There , there are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock obligations of the Company or any Company Subsidiaryof its subsidiaries to repurchase, redeem or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, otherwise acquire any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interestssubsidiaries.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 60,000,000 Shares and 5,000,000 shares of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”. As of March 25, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 2022: (the “Measurement Date”), (ai) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) 31,017,719 Shares were issued and outstanding (including 480,270 Company RSAs); (ii) 3,037,732 Shares were issued and held by the Company in its treasury; (iii) 74,235 Shares were reserved for issuance pursuant to Company Options under the Stock Plans; and (biv) no shares of Company Preferred Stock were issued and outstanding or outstandingheld by the Company in its treasury. The Company has a number of Shares reserved for issuance equal to at least the number of Company equity or equity-based awards outstanding and any equity or equity-based awards that may be issued by the Company pursuant to the Stock Plans and ESPP following the date of this Agreement and before the Closing Date pursuant to and in accordance with the terms of this Agreement.
(b) Neither the Company nor any of its Subsidiaries have outstanding any bonds, debentures, notes or other Indebtedness, the holders of which have the right to vote (or convert into or exercise for securities having the right to vote) with the stockholders of the Company on any matter or with the equity holders of any of the Company’s Subsidiaries on any matter, respectively.
(c) The Shares constitute the only outstanding class of securities of, or held by, the Company or its Subsidiaries registered under the Securities Act.
(d) Section 5.2(d) of the Company Disclosure Letter sets forth a correct and complete list of all outstanding Company Equity Awards as of March 25, 2022, setting forth the number of Shares subject to each Company Equity Award and the holder (identified by name or employee identification number), grant date, vesting schedule, including whether the vesting will be accelerated by the execution and delivery of this Agreement or consummation of the Merger or by termination of employment following consummation of the Merger, in the case of Company Options, whether such Company Option is vested or unvested, and exercise or strike price per Share (where applicable) with respect to each Company Equity Award, as applicable.
(e) All Company Equity Awards and rights under the ESPP were granted in accordance with the Stock Plans, ESPP, all applicable Law, and all applicable securities exchange rules, in each case, in all material respects. All issued Company Equity Awards are evidenced by written award agreements substantially in the forms that have been made available to Parent prior to the date hereof. Each Company Option (i) has an exercise or strike price per Share equal to or greater than the fair market value of a Share on the date of such grant, (ii) has a grant date identical to the date on which the Company Board or Company Compensation Committee actually awarded such Company Option, (iii) qualifies for the Tax and accounting treatment afforded to such Company Option in the Company’s Tax Returns and the Company Reports made available to Parent, respectively, and (iv) does not trigger any obligation or liability for the holder thereof under Section 409A of the Code.
(f) Section 5.2(f) of the Company Disclosure Letter sets forth: (i) each of the Company’s Subsidiaries, except for any new JV entered into from and after the date of this Agreement until the Effective Time, subject to Section 7.1(a)(xi); (ii) whether or not each such Subsidiary is a Wholly Owned Subsidiary (any Subsidiary that is not a Wholly Owned Subsidiary, a “Non-Wholly Owned Subsidiary”); and (iii) for each Non-Wholly Owned Subsidiary, (A) the percentage of the Company’s ownership interest, direct or indirect, and the number and type of capital stock or other securities owned by the Company, directly or indirectly, in each such Subsidiary, and (B) the percentage of such other Person or Persons’ ownership interest and the number and type of capital stock or other securities owned by such other Person or Persons in each such Subsidiary and the name of such other Person or Persons. Except with respect to any new JV entered into from and after the date of this Agreement until the Effective Time, subject to Section 7.1(a)(xi), the Company does not, directly or indirectly, beneficially own any capital stock of, or other voting securities or equity or similar interests, or investment, or have any obligation to invest, in any Person which is not listed on Section 5.2(f) of the Company Disclosure Letter. As of the date of this Agreement, the JVs are the entities listed on Section 5.2(f) of the Company Disclosure Letter. The Company does not own, directly or indirectly, any voting interest in any Person that requires an additional filing by Parent or the Company under the HSR Act.
(g) All of the outstanding shares of the capital stock of the Company have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to, or issued in violation of, any preemptive right. Upon the issuance of any Shares in accordance with the terms of the Stock Plans and ESPP in effect on the date of this Agreement, such Shares will be duly authorized, validly issued, fully paid and non-assessable, assessable and no class of capital stock of the Company is entitled to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible intonot subject to, or exchangeable forissued in violation of, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liensright.
(bh) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all Each of the outstanding shares of capital stock or other equity interests securities of each Company Subsidiary are of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and non-assessable and, except for any shares of capital stock or other securities of any Non-Wholly Owned Subsidiaries owned by such Persons contemplated by Section 5.2(f)(iii)(B), owned by the Company, by another Company Subsidiary or by a Wholly Owned Subsidiary of the Company and another Company SubsidiaryCompany, free and clear of all pledgesany Encumbrance (other than any Permitted Encumbrance).
(i) Except as set forth in Sections 5.2(a), liens5.2(e) and 5.2(g), chargesthere are no preemptive or other outstanding rights, mortgagesoptions, encumbrances and security interests warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, commitments or rights of any kind that obligate the Company or nature whatsoever (collectively, “Liens”) and free any of its Subsidiaries to issue or to sell any restriction on the right to vote, sell or otherwise dispose shares of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends of the Company or other distributions on the shares any of Company Common Stock and its Subsidiaries or any material dividends securities or other distributions on 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 Company Subsidiary which have been authorized of its Subsidiaries, and declared prior to the date hereof have been paid in full (except to the extent no securities or obligations evidencing such dividends have been publicly announced and rights are not yet due and payable)authorized, issued or outstanding.
Appears in 1 contract
Sources: Merger Agreement (LHC Group, Inc)
Capital Structure. (a) The authorized capital stock of the Company Applicant consists of 1,000,000,000 100,000,000 shares of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8$0.001 par value, 2015 (the “Measurement Date”), (a) 36,809,108 and 38,188,501 shares of Company Preferred Stock, $0.001 par value, of which 18,678,500 shares are designated Series A Preferred Stock, 9,310,001 shares are designated Series B Preferred Stock and 10,200,000 shares are designated Series C Preferred Stock. As of October 10, 1997, 39,421,722 shares of its Common Stock (which includes 290,566 were issued and outstanding, 18,518,500 shares of Company Restricted Stock) its Series A Preferred Stock were issued and outstanding, 9,310,001 shares of its Series B Preferred Stock were issued and outstanding and (b) no 8,454,580 shares of Company its Series C Preferred Stock were issued or and outstanding. All The Applicant has also reserved (i) 3,900,000 shares of Common Stock for issuance to employees and consultants pursuant to Applicant's 1996 Stock Option Plan and the 1996 Equity Compensation Plan, (ii) 160,000 shares of Series A Preferred Stock for issuance upon the exercise of outstanding warrants to purchase Series A Preferred Stock (the "Warrant Stock"), (iii) 160,000 shares of Common Stock for issuance upon conversion of the Warrant Stock, (iv) 1,000,000 shares of Common Stock for issuance upon the exercise of warrants issued or outstanding warrants to purchase issuable pursuant to the Applicant's Affiliate Warrant Program, and outstanding (v) 24,000,000 shares of Common Stock for issuance under the Applicant's 1997 Acquisition Stock Option Plan. Except for stock and options issuable in connection with potential acquisitions by Applicant, there are no other options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which Applicant is a party or by which it is bound obligating Applicant to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital stock of Applicant or obligating Applicant to grant, extend, or enter into any such option, warrant, call, right, commitment or agreement. The Merger will not change the Company are rights of the existing stockholders of Applicant; however, the Merger will diminish USWeb stockholders' equity interest in USWeb because of the increase in the number of shares of Common Stock of Applicant outstanding.
(b) The shares of Parent Common Stock to be issued pursuant to the Merger, when issued as contemplated hereby, will be duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock of the Company is entitled to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Capital Structure. (a) The As of the date hereof, the authorized capital stock of the Company consists of 1,000,000,000 200,000,000 shares of the Company Common Stock and 50,000,000 10,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and1,000,000 shares of which are designated as Series A Junior Participating Cumulative Preferred Stock. As of May 20, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 2008 (the “Measurement Date”or such other date noted below), (ai) 36,809,108 72,925,649 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and outstanding, (bii) no shares of Common Stock were held by the Company or by any of the Company’s Subsidiaries, (iii) 6,058,051 shares of Common Stock were reserved for issuance pursuant to outstanding Company Options as of April 30, 2008, (iv) 1,530,776 shares of Common Stock were reserved for issuance pursuant to outstanding Performance Share Awards as of April 30, 2008, (v) 7,067,006 shares of Common Stock were reserved for issuance pursuant to the Option Plans, (vi) 13,142,855 shares of Common Stock were reserved for issuance upon the conversion of the Company’s 6% Convertible Senior Subordinated Notes due 2012 (the “Convertible Notes”) and (vii) no shares of Preferred Stock were issued issued, reserved for issuance or outstanding. Except as set forth above, as of such date, no shares of capital stock or other equity or voting securities of the Company are issued, reserved for issuance or outstanding. All issued and outstanding shares of the capital stock of the Company are are, and all shares of Common Stock which may be issued pursuant to the Option Plans, the Performance Share Awards and the Convertible Notes will, when issued, be duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class of capital stock of the Company is entitled not subject to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no not any bonds, debentures, notes or other indebtedness Indebtedness or debt securities of the Company or any Company Subsidiary having the right to vote (or or, except for the Convertible Notes, convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders stockholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”)vote. Except as set forth above, as of the Measurement Daterequired under this Agreement, there were are no securities, options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was of its Subsidiaries is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock voting securities of or other equity interest in, the Company or of any Company Subsidiary of its Subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP outstanding rights, commitments, agreements, arrangements or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear undertakings of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, kind obligating the Company or any Company Subsidiaryof its Subsidiaries to repurchase, (ii) voting trusts, proxies redeem or other similar agreements otherwise acquire or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting dispose of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests or voting securities of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear or any of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind its Subsidiaries or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared the type described in the two immediately preceding sentences, except under employment arrangements entered into prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable)hereof.
Appears in 1 contract
Capital Structure. (a) The As of September 22, 1997, the authorized ----------------- capital stock of the Company consists of 1,000,000,000 (i) 75,000,000 shares of the Company Common Stock Stock, (ii) 1,300,000 shares of Non-Voting Common Stock, each having a par value of one cent ($0.01) ("Non-Voting Common Stock"), and 50,000,000 (iii) 15,000,000 shares of preferred stock, each having a par value of one cent ($0.01 per share 0.01) (the “Company "Preferred Stock”"). As of the close of business on September 22, and1997, together with there were (i) 32,139,334 shares of Company Common Stock, 0 shares of Non-Voting Common Stock and 0 shares of Preferred Stock issued and outstanding; (ii) 20,000 shares of Company Common Stock held in the treasury of the Company; (iii) 784,734 shares of Company Common Stock reserved for issuance upon exercise of authorized but unissued Company Stock Options pursuant to the Stock Plans; (iv) 5,102,400 shares of Company Common Stock reserved for issuance upon the conversion of the Convertible Debentures; and (v) 1,662,966 shares of Company Common Stock issuable upon exercise of outstanding Company Stock Options. Schedule 3.01(c) sets forth the name of each holder of outstanding options to acquire shares of Company Common Stock, the “Company Capital Stock”)number of options held and the exercise prices of such options. At the close of business on May 8Except as set forth above, 2015 (the “Measurement Date”), (a) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and (b) no shares of capital stock or other equity securities of the Company Preferred Stock were issued are issued, reserved for issuance or outstanding. All issued and outstanding shares of the capital stock of the Company are are, and all shares which may be issued pursuant to the Stock Plans will be, when issued, duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class of capital stock of the Company is entitled not subject to preemptive rights. Except as set forth above, at Other than the close of business on the Measurement Date, no shares of capital stock or other voting securities of Convertible Debentures and the Company were issuedStock Options, reserved for issuance or outstanding. There there are no outstanding bonds, debentures, notes or other indebtedness or other securities of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable or exercisable for, securities having the right to vote) on any matters on which holders stockholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”)vote. Except as set forth above, as of the Measurement Datethere are no outstanding securities, there were no options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was of its subsidiaries is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary of its subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock voting securities of or other equity interest in, the Company or of any Company Subsidiary of its subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its subsidiaries to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At As of September 22, 1997, the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and only outstanding (c) no preferred units indebtedness for borrowed money of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as its subsidiaries is set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OPSchedule 3.01(c). Other than the Company OP Units owned by the limited partners of Convertible Debentures and the Company OP set forth in Section 3.02(a) of the Company Disclosure LetterStock Options, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted sharesthere are no outstanding contractual obligations, restricted share unitscommitments, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock understandings or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, arrangements of the Company or any Company Subsidiaryof its subsidiaries to repurchase, (ii) voting trusts, proxies redeem or other similar agreements otherwise acquire or understandings to which the Company or make any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with payment in respect to the voting of any shares of capital stock of the Company or any Company Subsidiaryof its subsidiaries and (ii) to the knowledge of the Company, or (iii) contractual obligations or commitments of any character there are no irrevocable proxies with respect to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiarysubsidiary of the Company. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
Except (ci) Except as set forth in Section 3.02(cabove, (ii) for the Registration Rights Agreement, dated as of the Company Disclosure LetterMay 9, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by 1996, among the Company, by another the Stockholder and Calvin Klei▇, ▇▇▇., ▇▇▇ registration obligations under which will expire upon the issuance to Calvin Klei▇, ▇▇▇. ▇▇ ▇hares of Parent Class A Common Stock in the Merger, and (iii) Sections 11.2 and 11.3 of the Third Amended and Restated Limited Liability Company Subsidiary Agreement of New Rio, L.L.C., dated as of May 9, 1996, the registration obligations under which will expire upon the issuance to the Stockholder of shares of Parent Class A Common Stock in the Exchange, there are no agreements or by arrangements pursuant to which the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind is or nature whatsoever (collectively, “Liens”) and free of any restriction on the right could be required to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the register shares of Company Common Stock and any material dividends or other distributions on securities under the Securities Act of 1933, as amended (the "Securities Act"), or other agreements or arrangements with or among any securityholders of the Company with respect to securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable)Company.
Appears in 1 contract
Capital Structure. (a) The As of the date of this Agreement: (i) the authorized capital stock of the Company consists of 1,000,000,000 125,000,000 shares of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 0.001 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”)share, (aii) 36,809,108 40,413,117 shares of Company the Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and (bnone of which were subject to vesting or transfer restrictions and/or subject to forfeiture back to the Company), (iii) no 9,708,737 shares of Company Series A Preferred Stock were issued or and outstanding. All , (iv) 9,408,175 shares of Series A1 Preferred Stock were issued and outstanding outstanding, (v) 13,982,282 shares of Series A2 Preferred Stock were issued and outstanding, (vi) 9,803,920 shares of Series B Preferred Stock were issued and outstanding, (vii) 18,351,995 shares of the capital stock Common Stock were reserved and issuable upon exercise of outstanding Options or settlement of RSUs pursuant to the Option Plans, and (viii) 4,570 shares of the Company are duly authorized, validly issued, fully paid Common Stock and non-assessable, and no class 829,315 shares of capital stock of Series A2 Preferred Stock were reserved for issuance pursuant to the Company is entitled to preemptive rightsWarrants. Except as set forth abovein this Section 3.03(a), at as of the close date of business on the Measurement Date, this Agreement no shares of capital stock or other voting securities of of, or other equity interests in, the Company were issued, reserved for issuance or outstanding. There No shares of Company Stock are no bondsheld by any Subsidiary. All of the terms and rights of the Company Stock (including without limitation, debenturesconversion rights) are set forth in the Company Certificate. The definition of Common Stock Equivalent in Section 12.01 accurately reflects the conversion rights of each class of Preferred Stock as of the date of this Agreement.
(b) Section 3.03(b) of the Disclosure Letter sets forth a complete and accurate list, notes as of the date of this Agreement, of all outstanding Options, the number of shares of Common Stock subject to each such Option, the grant date, exercise price per share, vesting schedule and expiration date of each such Option, the name of the holder thereof, an indication of whether or other indebtedness not each such holder is a current employee or director of the Company or any Subsidiary, whether or not such Option (or any portion thereof) is intended to qualify as an “incentive stock option” under Section 422 of the Code and the name of the Option Plan pursuant to which each such Option was granted. As of the date of this Agreement, other than the outstanding Options, the RSUs described in Section 3.03(c) of the Disclosure Letter and the Warrants described in Section 3.03(d) of the Disclosure Letter, there are no outstanding rights of any Person to receive Common Stock under the Option Plans or otherwise, on a deferred basis or otherwise. The Company has provided to Acquiror a complete and accurate copy of the Option Plans and the forms of all stock option agreements evidencing the Options. All Options may be treated as provided in Section 2.03(a)(i).
(c) Section 3.03(c) of the Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of all outstanding RSUs, the grant date, vesting schedule and expiration date of each such RSU, the name of the holder thereof, and an indication of whether or not each such holder is a current employee or director of the Company or any Subsidiary. The Company has provided to Acquiror a complete and accurate copy of all agreements evidencing the RSUs. All RSUs may be treated as provided in Section 2.03(a)(ii).
(d) Section 3.03(d) of the Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement, of all outstanding Warrants, the number of shares and class of Company Stock subject to each outstanding Warrant, the exercise price and expiration date of the Warrant, and the name of the holder of each of the Warrants. The Company has provided to Acquiror a complete and accurate copy of all Agreements evidencing the Warrants. All Warrants may be treated as provided in Sections 2.03(b) and 2.03(c), as applicable.
(e) All outstanding shares of the Company Stock are, and, at the time of issuance, all such shares that may be issued upon the exercise of the Options and the Warrants will be, duly authorized, validly issued, fully paid and nonassessable and not subject to, or issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the DGCL, the Company Certificate, the Company Bylaws, any Contract to which the Company is a party or otherwise bound or any applicable securities Laws and other applicable Laws. Except as set forth in this Section 3.03, as of the date of this Agreement, there are not issued, reserved for issuance or outstanding, and there are not any outstanding obligations of the Company or any Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold: (i) any capital stock of the Company or any Subsidiary or any securities of the Company or any Subsidiary convertible into or exchangeable or exercisable for shares of capital stock or voting securities of, or other equity interests in, the Company or any Subsidiary, (ii) any warrants, calls, options or other rights to acquire from the Company or any Subsidiary, or any other obligation of the Company or any Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, any capital stock or voting securities of, or other equity interests in, the Company or any Subsidiary or (iii) any rights issued by or other obligations of the Company or any Subsidiary that are linked in any way to the price of any class of Company Stock or any shares of capital stock of any Subsidiary, the value of the Company, any Subsidiary or any part of the Company or any Subsidiary or any dividends or other distributions declared or paid on any shares of capital stock of the Company or any Subsidiary. Except as set forth above in this Section 3.03 in connection with the Options, as of the date of this Agreement or pursuant to the terms of the Company Certificate, there are not any outstanding obligations of the Company or any Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock or voting securities or other equity interests of the Company or any Subsidiary or any securities, interests, warrants, calls, options or other rights referred to in clause (i), (ii) or (iii) of the immediately preceding sentence. Each Warrant was duly executed and delivered by each party thereto, and a true and correct copy of each such Warrant was provided to Acquiror prior to the date of this Agreement. There are no debentures, bonds, notes or other Indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders stockholders of the Company Common Stock, may vote. Neither the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as nor any of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was Subsidiaries is a party or by which to any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound agreement with respect to the voting of any shares stock or voting securities of, or other equity interests in, the Company. Except for this Agreement, neither the Company nor any of capital stock the Company is a party to any agreement pursuant to which any Person is entitled to elect, designate or nominate any director of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(cf) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the All outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company Stock and another Company Subsidiary, free all outstanding Options and clear of Warrants have been issued in compliance with all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Capital Structure. (a) The As of the date hereof, the authorized capital stock of the Company consists of 1,000,000,000 50,000,000 shares of the Company Common Stock; 10,000,000 shares of Class A Common Stock, of which 9,000,000 shares are designated Class A Series I Common Stock and 50,000,000 1,000,000 shares are designated Class A Series II Common Stock; and 10,000,000 shares of preferred stock, par value $0.01 .01 per share (the “Company share, of which 400,000 shares are designated as Preferred Stock”, and, together with . As of the Company date hereof: (i) 28,267,185 shares of Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”)Stock are issued and outstanding, (aii) 36,809,108 2,777,778 shares of Company Class A Series I Common Stock are issued and outstanding, (which includes 290,566 iii) 375,159 shares of Company Restricted Stock) were Class A Series II Common Stock are issued and outstanding outstanding, (iv) 400,000 shares of Preferred Stock are issued and outstanding, and (bv) no 2,358,352 shares of Company Preferred Common Stock were issued or outstandingare reserved for issuance pursuant to outstanding Options. All issued and outstanding shares Schedule 3.1(b) sets forth a list of the record owners of all classes of the Company's capital stock and Options as of the Company are duly authorized, validly issued, fully paid and non-assessable, and no class date of this Agreement. Each outstanding share of capital stock of the Company is entitled to duly authorized and validly issued, fully paid and nonassessable and free of any preemptive rights. Except , except as set forth aboveprovided in that certain Stockholders Agreement, at the close of business on the Measurement Datedated August 29, no shares of capital stock or other voting securities of 1995, among the Company were issued, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness of and the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common StockStock and Class A Common Stock (the "Stockholders Agreement"), and was not issued in violation of any preemptive rights or federal or state securities laws. After giving effect to the Class A Conversion, the Company OP Units or Preferred Stock Redemption, the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as conversion of the Measurement Dateoutstanding Options as contemplated by Section 2.3, and the termination of the Stockholders Agreement as contemplated by Section 4.2, at Closing there were will be no outstanding subscriptions, options, warrants, rightsputs, convertible calls, agreements, understandings, claims or exchangeable securities, commitments, other commitments or undertakings rights of any kind type relating to which the issuance, sale or transfer by the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units securities of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and Company, nor will there be outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company securities which are convertible into or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of exchangeable for any shares of capital stock of the Company, and the Company or any Company Subsidiary, or (iii) contractual obligations or commitments will have no obligation of any character kind to which the Company or issue any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its additional capital stock or other equity interestsvoting securities.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Capital Structure. (a) The authorized capital stock of the Company ---- ----------------- consists of 1,000,000,000 10,000,000 shares of the Company Common Stock common stock, $0.01 par value per share, of which 5,000,000 shares are voting common stock ("Class A Shares") and 50,000,000 5,000,000 -------------- shares are non-voting common stock ("Class B Shares") and 19,031 shares of -------------- preferred stock, $.0l par value $0.01 per share (the “Company share, of which 1,043 shares are Class A shares of Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”("Class A Preferred Shares") and l7,988 shares are ------------------------ Class B shares of Preferred Stock ("Class B ------- Preferred Shares"). At the close of business on May 8January 31, 2015 (the “Measurement Date”)1999, (ai) 36,809,108 6,100 ---------------- shares of Company Common Stock (which includes 290,566 Class A Shares and 133,643 shares of Company Restricted StockClass B Shares were issued and outstanding, (ii) 100 shares of Class A Preferred Shares and 100 shares of Class B Preferred Shares, were issued and outstanding, and (iii) options and warrants to purchase shares of Stock as set forth on Section 3.2 of the Disclosure Schedule were issued and outstanding (such options and (b) warrants being herein collectively referred to as the "Company Stock Options"). Except as set forth --------------------- above, at the close of business on January 31, 1999, no shares of capital stock or other equity securities of the Company Preferred Stock were issued issued, reserved for issuance, or outstanding. All issued and Except as set forth in Section 3.2 of the Disclosure Schedule, all outstanding shares of the capital stock of the Company are are, and all shares which may be issued pursuant to any outstanding Company Stock Options will be, when issued, duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class of capital stock of the Company is entitled not subject to preemptive rights. Except as contemplated by this Agreement or as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities in Section 3.2 of the Company were issuedDisclosure Schedule, reserved for issuance or outstanding. There are no bonds, debentures, notes notes, or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders the shareholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was a party may vote are issued or outstanding. Except as disclosed in Section 3.2 of the Disclosure Schedule, all the outstanding shares of capital stock of each Subsidiary have been validly issued and are fully paid and nonassessable and are owned by the Company, by one or more Subsidiaries, or by the Company and one or more such Subsidiaries, free and clear of all Liens, excluding any Taxes assessed against Purchaser and Liens securing the obligations of Purchaser. Except as contemplated by this Agreement or as set forth above or in Section 3.2 of the Disclosure Schedule, neither the Company nor any Subsidiary has any outstanding option, warrant, subscription, or other right, agreement, or commitment which any of them was bound (i) obligating obligates the Company or any Company Subsidiary to issue, deliver sell or selltransfer, repurchase, redeem, or cause to be issued, delivered otherwise acquire or sold, additional vote any shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any the capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement DateSubsidiary, (aii) restricts the transfer of shares of stock of the Company OP GPor any Subsidiary, as sole general partner or (iii) grants the right to participate in any equity appreciation of the Company OP, owned the entire general partnership interest in Company OP; or any Subsidiary.
(b) 39,152,608 When issued in accordance with the terms of this Agreement, the Company OP Units were Shares will be duly authorized, validly issued, fully paid, and non- assessable, will not be issued in violation of any preemptive rights granted by the Company and outstanding (c) no preferred units will be free and clear of any and all Taxes or Liens. The issuance and delivery by the Company to Purchaser at the Closing of the certificates representing the Company Shares in the name of Purchaser will vest Purchaser on the Closing Date with good title to all of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OPShares, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Capital Structure. (a) The authorized capital stock of equity interests in the Company consists consist of 1,000,000,000 Five Million (5,000,000) shares of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, Nine Hundred Fifty Thousand (950,000) shares of Series A Preferred Stock, and Two Hundred (200) shares of Series B Preferred Stock. As of the “Company Capital Stock”). At the close of business on May 8date hereof, 2015 there are Four Million (the “Measurement Date”), (a4,000,000) 36,809,108 shares of Company Common Stock issued and outstanding, Nine Hundred Fifty Thousand (which includes 290,566 950,000) shares of Company Restricted Stock) were Series A Preferred Stock issued and outstanding outstanding, and Two Hundred (b200) no shares of Company Series B Preferred Stock were issued or outstanding. All issued and outstanding shares outstanding, all of the capital stock of the Company are duly authorized, which were validly issued, fully paid and non-assessable, nonassessable and no class free of capital stock of the Company is entitled to preemptive rights. Except as set forth at Schedule 3.2, neither the ------------ Company nor any of its Subsidiaries has any benefit plans under which any equity interests in the Company or any of its Subsidiaries are issuable. The Company has not promised or agreed to issue equity interests under such benefit plans. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock Company Capital Stock or other voting securities of the Company were are issued, reserved for issuance or outstandingoutstanding and the Company Shareholders own all issued and outstanding shares of Company Capital Stock. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, calls, rights, convertible puts or exchangeable securities, commitments, or undertakings of any kind agreements to which the Company or any Company Subsidiary was of its Subsidiaries is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, deliver deliver, sell or sellredeem, or cause to be issued, delivered delivered, sold or soldredeemed, any additional shares of capital stock Company Capital Stock (or other voting securities or equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock equivalents) of or other equity interest in, the Company or any of any Company Subsidiary its Subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, securitycall, commitment right, put or undertakingagreement. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) Schedule 3.2(a), neither of the Company Disclosure Letter--------------- Shareholders or the Company are a party to, all and do not otherwise have any knowledge of the current existence of, any shareholder agreement, voting trust agreement or any other similar contract, agreement, arrangement, commitment, plan or understanding relating to the voting, dividend, ownership or transfer rights of any Company Capital Stock. True and complete copies of the Company's Articles of Incorporation (the "Company Articles"), and Bylaws of the Company ---------------- (the "Company Bylaws") have been delivered to Parent. --------------
(b) Each outstanding shares share of capital stock Company Capital Stock is duly authorized, validly issued, fully paid and nonassessable, and each such share (or other voting security or equity interests of each Company Subsidiary are equivalent, as the case may be) is owned by the Company, by another Company Subsidiary or by the Company and another Company SubsidiaryShareholders, free and clear of all pledgessecurity interests, liens, chargesclaims, mortgagespledges, options, rights of first refusal, agreements, limitations on voting rights, charges and other encumbrances and security interests of any kind nature whatsoever. The Company does not have any outstanding bonds, debentures, notes or nature whatsoever other obligations the holders of which have the right to vote (collectively, “Liens”) and free of any restriction on or convertible into or exercisable for securities having the right to vote) with the Company Shareholders on any matter. On the Closing Date, sell each outstanding share of capital stock (or otherwise dispose other voting security or equity equivalent, as the case may be) of each Subsidiary of the Company will be duly authorized, validly issued, fully paid and nonassessable, and each such share (or other voting security or equity equivalent, as the case may be) will be owned by the Company or another Subsidiary of the Company, free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on voting rights, charges and other encumbrances of any nature whatsoever.
(c) Schedule 3.2(c) sets forth the name and address of each holder of --------------- record of Company Capital Stock outstanding on the date hereof, together, in each case, with the number and type of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities LawsCompany Capital Stock held by such Shareholder.
(d) All dividends liability company, partnership, joint venture, trust, association or other distributions on entity which is not a Subsidiary of the Company, as the case may be, and in which (a) the Company, directly or indirectly, owns or controls any shares of Company Common Stock and any material dividends class of the outstanding voting securities or other distributions on any securities equity interests or (b) the Company or one of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable)its Subsidiaries is a general partner.
Appears in 1 contract
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 30,000,000 shares of the Company Common Stock and 50,000,000 5,000,000 shares of preferred stockPreferred Stock, par value $0.01 .01 per share (the “Company "Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”"). At the close of business on May 8October 27, 2015 (the “Measurement Date”)1995, (ai) 36,809,108 7,025,399 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding, (ii) 685,500 shares of Common Stock were reserved for issuance upon the exercise of outstanding Company Options and (biii) no shares of Common Stock were held by the Company in its treasury. As of the date hereof there are no shares of Preferred Stock were issued or outstanding. All issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class of capital stock of the Company is entitled not subject to preemptive rights. Except as set forth aboveAs of October 27, at 1995, there were (i) Company Options outstanding under the close of business on the Measurement Date, no Company's 1987 Non-Qualified Stock Option Plan to acquire 282,500 shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, (ii) Company Options outstanding under the Company's 1989 Non-Qualified Stock Option Plan to acquire 236,000 shares of Company Common Stock, and (iii) Company Options outstanding under the Company's 1994 Non-Qualified Stock Option Plan to acquire 167,000 shares of Company Common Stock. The foregoing stock option plans of the Company OP Units or are herein called the general partnership interests in the "Stock Plans." Except for such Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement DateOptions, there were are no options, warrants, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was of its Subsidiaries is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock voting securities of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertakingof its Subsidiaries. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter Schedule 3.2 sets forth the name of each holder of a Company Option, the number of partnership units held by each partner shares of Common Stock for which such Company Option is exercisable and the exercise price per share of Common Stock subject to such Company Option. Since October 27, 1995, no shares of the Company's capital stock have been issued other than pursuant to the exercise of Company Options already in existence on such date and the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of has not granted any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, options for any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interestsCompany.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Sources: Merger Agreement (Alberto Culver Co)
Capital Structure. (ai) The As of the date of this Agreement, the authorized capital stock of the Company consists consisted solely of 1,000,000,000 (A) 2,500,000 shares of Company Class A Common Stock, of which 366,925.6 shares are issued and outstanding, (B) 2,500,000 shares of Company Class B Common Stock, of which 1,655,364 shares are issued and outstanding, (C) 900,000 shares of Company Series B Preferred Stock, of which 613,265.8 shares are issued and outstanding and (D) 950,000 shares of Company Series C Preferred Stock, of which 483,604 shares are issued and outstanding. The Company is current, as of the date of this Agreement, and shall be current, as of the Closing Date, with respect to all dividend payments due and payable to holders of Company Preferred Stock. Since September 30, 2006, there have been no issuances of shares of the Company Common Stock and 50,000,000 shares capital stock of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, or securities convertible into or exercisable for capital stock of the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”), (a) 36,809,108 except shares of Company Common Stock (which includes 290,566 shares issued upon exercise of Company Restricted Stock) were issued and outstanding and (b) no shares of Company Preferred Stock were issued or outstandingOptions. All issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessablenonassessable, and and, except as provided in the Company Stockholders Agreement, no class of capital stock of the Company is entitled to preemptive rights. As of the date of this Agreement, 16,593.5 shares of Company Class A Common Stock were issuable upon exercise of the Company Options. Except as set provided in the Company’s certificate of incorporation and Section 3.1(c)(i) of the Company Disclosure Schedule and except for the Company Options, there are no options, warrants, calls, conversion rights, stock appreciation rights, redemption rights, repurchase rights or other rights, agreements, arrangements or commitments to which the Company or any of its Subsidiaries is a party (A) relating to the issued or unissued capital stock or other securities of the Company or any of its Subsidiaries or (B) obligating the Company or any of its Subsidiaries to issue or sell any shares of their capital stock or other securities. The Company has made available to Parent true, correct and complete copies of all Company Option Plans and all forms of options outstanding under those Company Option Plans. Section 3.1(c)(i) of the Company Disclosure Schedule sets forth abovea true, at correct and complete list of the close capitalization of business the Company, as of the date of this Agreement, including, (A) with respect to the Company Common Stock, all of the issued and outstanding shares and the names of the holders thereof, (B) with respect to the Company Preferred Stock, all of the issued and outstanding shares and the names of the holders thereof and the Preferred Per Share Merger Consideration payable to each such holder of Company Preferred Stock calculated as of February 15, 2007 and (C) with respect to each Company Option: (i) the name of the holder of that option; (ii) the exercise price for that option; (iii) the number and class of shares of Company Stock subject to that option; (iv) the Company Option Plan under which that option was granted; and (v) the dates on which that option was granted, will vest and will expire.
(ii) Except as disclosed in Section 3.1(c)(ii) of the Measurement DateCompany Disclosure Schedule and Liens granted in connection with the Credit Agreement, no all of the outstanding shares of capital stock of each of the Company’s Subsidiaries are beneficially owned by the Company, directly or indirectly, and all such shares have been validly issued and are fully paid and nonassessable and are owned by either the Company or one or more of its Subsidiaries, free and clear of all liens, charges, mortgages, pledges, security interests, easements, claims, options, rights of first offer or refusal, voting trusts, restrictions on transfer (except pursuant to federal and state securities laws), hypothecation, preference, priority or other voting securities encumbrances (collectively, “Liens”).
(iii) As of the Company were issueddate of this Agreement, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP stockholders may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible are issued or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Sources: Merger Agreement (Fastentech Inc)
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 100,000,000 shares of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8December 21, 2015 (the “Measurement Date”)1998, (a) 36,809,108 6,852,889 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding outstanding, and (b) no 401,902 shares of Company Preferred Stock were issued reserved for issuance pursuant to outstanding options or outstanding. All issued and outstanding warrants to purchase shares of the capital stock Stock which have been granted to directors, officers, or employees of the Company are duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock of the or others ("Company is entitled to preemptive rightsStock Options"). Except as set forth above, at the close of business on the Measurement DateDecember 21, 1998, no shares of capital stock or other voting equity securities of the Company were issued, reserved for issuance issuance, or outstanding. There are All outstanding shares of capital stock of the Company are, and all shares which may be issued pursuant to any outstanding Company Stock Options will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights. Except as set forth in Section 4.2 of the Disclosure Schedule, no bonds, debentures, notes notes, or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders the shareholders of the Company Common Stockor any Subsidiary may vote are issued or outstanding. Except as disclosed in Section 4.2 of the Disclosure Schedule, all the outstanding shares of capital stock of each Subsidiary have been validly issued and are fully paid and nonassessable and are owned by the Company, by one or more Subsidiaries, or by the Company OP Units and one or the general partnership interests in the Company OP may vote (“Voting Company Debt”)more such Subsidiaries, free and clear of all Liens. Except as set forth above, as above or in Section 4.2 of the Measurement DateDisclosure Schedule, there were no optionsneither the Company nor any Subsidiary has any outstanding option, warrantswarrant, rights, convertible or exchangeable securities, commitmentssubscription, or undertakings of any kind to other right, agreement, or commitment which (i) obligates the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver sell or selltransfer, repurchase, redeem, or cause to be issued, delivered otherwise acquire or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of vote any shares of the capital stock of the Company or any Subsidiary, (ii) restricts the transfer of shares of stock of the Company or any Subsidiary, or (iii) contractual obligations or commitments of grants the right to participate in any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock equity appreciation of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(cb) Except as set forth When issued in Section 3.02(c) accordance with the terms of this Agreement, and if applicable the Company Disclosure LetterNonvoting Warrant, all the Shares, and the Nonvoting Shares will be duly authorized, validly issued, fully paid, and non-assessable, will not be issued in violation of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company any preemptive rights and another Company Subsidiary, will be free and clear of any and all pledges, liens, charges, mortgages, encumbrances and security interests of any kind taxes or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Sources: Stock Purchase Agreement (Kevco Inc)
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 21,484,375 Shares and 5,000,000 shares of the Company Common Stock and 50,000,000 shares of preferred stockPreferred Stock, no par value $0.01 per share (the “Company Preferred Stock”share. As of De- cember 31, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”)1996, (ai) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) 4,606,199 Shares were issued and outstand- ing, (ii) no Shares were held by the Company or by any of the Company's subsidiaries, (iii) 633,450 Shares were reserved for issuance pursuant to the outstanding Company Options, (iv) no Shares were reserved for issuance pursuant to the ESPP and (bv) no shares of Company Preferred Stock were issued issued, reserved for issuance or outstanding. All issued and outstanding Except as set forth above, no shares of capi- tal stock or other equity or voting securities of the Company are issued, reserved for issuance or outstanding, except for Shares referred to in clause (iii) above which may be issued upon exercise of the outstanding Company Options. All out- standing shares of capital stock of the Company are are, and all Shares which may be issued pursuant to the Option Plans will, when issued, be duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class of capital stock of the Company is entitled not subject to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no not any bonds, debentures, notes or other indebtedness or secu- rities of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders shareholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”)vote. Except as set forth above, as above and in Section 4.1(c) of the Measurement DateDisclo- sure Schedule, there were no are not any securities, options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings under- takings of any kind to which the Company or any Company Subsidiary was of its subsid- iaries is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary of its subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock voting securities of or other equity interest in, the Company or of any Company Subsidiary of its subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its subsidiaries to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP outstanding rights, commitments, agreements, arrangements or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear undertakings of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, kind obligating the Company or any Company Subsidiaryof its subsidiaries to repurchase, (ii) voting trusts, proxies redeem or other similar agreements otherwise acquire or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting dis- pose of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests or voting securities of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear or any of all pledges, liens, charges, mortgages, encumbrances and security interests its subsidiaries or any se- curities of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Lawstype described in the two immediately preceding sentences.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Sources: Merger Agreement (Amf Group Inc)
Capital Structure. (ai) The As of the date hereof, the authorized capital stock of the Company consists Teleglobe consisted of 1,000,000,000 (A) an unlimited number of common shares of the Company Common Stock and 50,000,000 shares of preferred Teleglobe capital stock, par value $0.01 per share (the “Company Preferred Stock”of which, and, together with the Company Common Stock, the “Company Capital Stock”). At at the close of business on May 8June 14, 2015 1998 (after giving effect to the Teleglobe Stock Dividend), 129,306,908 shares were outstanding and 7,106,364 shares were reserved for issuance pursuant to options or rights under Teleglobe's Executive Stock Option Plan (the “Measurement Date”"Teleglobe Option Plan") and (B) an unlimited number of Class A non- voting shares and preferred shares, all without par value, of which, at the close of business on June 14, 1998 (after giving effect to the Teleglobe Stock Dividend), (a) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) 5,000,000 Third Series Preferred Shares were issued and outstanding and (b) no shares of Company Preferred Stock were issued or outstanding. All issued and outstanding shares of the capital stock of the Company Teleglobe are duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class of capital stock of the Company is entitled to preemptive rights. Except There were outstanding as set forth aboveof June 14, at the close of business on the Measurement Date1998 no options, no warrants or other rights to acquire capital stock from Teleglobe other than options or rights to acquire 3,577,706 common shares of Teleglobe capital stock or other voting securities stock.
(ii) As of the Company were issueddate of this Agreement, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary Teleglobe having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP shareholders may vote (“"Teleglobe Voting Company Debt”). ") are issued or outstanding.
(iii) Except as otherwise set forth above, as of the Measurement Datein this Section 3.2(c), there were are no securities, options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company Teleglobe or any Company Subsidiary was of its Subsidiaries is a party or by which any of them was is bound (i) obligating the Company Teleglobe or any Company Subsidiary of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, voting securities of Teleglobe or any security convertible of its Subsidiaries or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary obligating Teleglobe or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners outstanding obligations of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company Teleglobe or any Company Subsidiaryof its Subsidiaries to repurchase, (ii) voting trusts, proxies redeem or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of otherwise acquire any shares of capital stock of the Company Teleglobe or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its Subsidiaries. There are no agreements or arrangements pursuant to which Teleglobe is or could be required to register or qualify common shares of Teleglobe capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) securities under the Securities Act or any Canadian Securities Laws, or other agreements or arrangements with or among any securityholders of Teleglobe with respect to securities of Teleglobe. There are no voting, sale, transfer or other similar agreements to which Teleglobe or any of its Subsidiaries is a party with respect to the capital stock of Teleglobe or Teleglobe's Subsidiaries or any other securities of Teleglobe or Teleglobe's Subsidiaries which are convertible or exchangeable into or exercisable for shares of the Company Disclosure Letter, all of the outstanding shares of capital stock of Teleglobe or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities LawsTeleglobe's Subsidiaries.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Sources: Merger Agreement (Teleglobe Inc)
Capital Structure. (a) The As of the date of this Agreement, the authorized capital stock of the Company consists of 1,000,000,000 (i) 14,400,000 Company Shares and (ii) 600,000 shares of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the of which (A) 150,000 shares have been designated Company Common Junior Preferred Stock and (B) 150,000 shares have been designated Company Senior Preferred Stock, the “Company Capital Stock”). At the close of business on May 8the date hereof and on the Closing Date, 2015 (i) 9,981,590 Company Shares were issued and outstanding, all of which were validly issued, fully paid, nonassessable and free of preemptive rights, (ii) 1,196,250 Company Shares were held in the treasury of the Company, (iii) 1,000,000 Company Shares were reserved for issuance pursuant to outstanding options (the “Measurement Date“ Company Stock Options ”) to purchase Company Shares pursuant to the Environmental Quality Management, Inc. Stock Option Plan (the “ Company Stock Option Plan ”), (aiv) 36,809,108 150,000 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and (b) no shares of Company Senior Preferred Stock were issued or and outstanding. All issued and outstanding shares , all of the capital stock of the Company are duly authorized, which were validly issued, fully paid paid, nonassessable and non-assessablefree of preemptive rights, and no class (v) 119,180.7 shares of capital stock Company Junior Preferred Stock were issued and outstanding, all of which were validly issued, fully paid, nonassessable and free of preemptive rights. The Company Stock Option Plan is the only benefit plan of the Company is entitled or its Subsidiaries under which any securities of the Company or any of its Subsidiaries are issuable. Each Company Share which may be issued pursuant to the Company Stock Option Plan has been duly authorized and, if and when issued pursuant to the terms thereof, will be validly issued, fully paid, nonassessable and free of preemptive rights. Except as set forth above, at above and except for the close issuance of business on Company Shares upon the Measurement Dateexercise of Company Stock Options outstanding in accordance with the terms thereof, no shares of capital stock or other voting securities of the Company were are issued, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness As of the Company or any Company Subsidiary having the right to vote date of this Agreement, except for (or convertible into, or exchangeable for, securities having the right to votei) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote this Agreement and (“Voting Company Debt”). Except ii) as set forth above, as of the Measurement Date, there were are no options, warrants, calls, rights, convertible puts or exchangeable securities, commitments, or undertakings of any kind Contracts to which the Company or any Company Subsidiary was is a party or by which any of them was it is bound (i) obligating the Company or any Company Subsidiary to issue, deliver deliver, sell, redeem or sellotherwise acquire, or cause to be issued, delivered or delivered, sold, redeemed or otherwise acquired, any additional shares of capital stock (or other voting securities or equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock equivalents) of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, securitycall, commitment right, put or undertakingContract. At As of the close date of business on this Agreement, the Measurement DateCompany does not have any outstanding bonds, debentures, notes or other obligations the holders of which have the right to vote (aor convertible into or exercisable for securities having the right to vote) Company OP GP, as sole general partner of Company OP, owned with the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units stockholders of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuableon any matter. There are no partners Contracts to which the Company or any of its respective officers or directors is a party concerning the voting of any capital stock of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any LiensCompany.
(b) Except as set forth aboveThere are no registration rights and, as to the Knowledge of the close of business on the Measurement DateCompany, there were are no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any equity security of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) any class of the Company Disclosure Letter, all Company. There is no stockholder rights plan that will be applicable or triggered by the entry into this Agreement or the consummation of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Lawstransactions contemplated hereunder.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Capital Structure. (a) The As of the date hereof, the authorized capital stock of the Company consists of 1,000,000,000 10,000,000 Shares and 300,000 shares of preferred stock of the Company Common Stock and 50,000,000 Company, consisting of 230,000 shares of preferred stock, no fixed par value per share ("Company Preferred Stock"), and 70,000 shares of Series A Preferred Stock, par value $0.01 .50 per share (the “Company "Series A Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”"). .
(b) At the close of business on May 8January 3, 2015 2001:
(the “Measurement Date”), (ai) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) 3,768,796 Shares were issued and outstanding outstanding, all of which were validly issued, fully paid and nonassessable and free of preemptive rights;
(bii) no shares of Company Preferred Stock were issued or and outstanding. All ;
(iii) 40,000 shares of Series A Preferred Stock were issued and outstanding shares outstanding, all of the capital stock of the Company are duly authorized, which were validly issued, fully paid and non-assessablenonassessable and free of preemptive rights;
(iv) No Shares, and no class shares of capital stock Company Preferred Stock or shares of Series A Preferred Stock were held in the treasury of the Company is entitled or by Subsidiaries of the Company; and
(v) 400,000 Shares were reserved for issuance and unissued pursuant to preemptive rights. the Company's 1986 Stock Option Plan and the Company's 1989 Stock Option Plan (the "Company Option Plans").
(c) Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities in Section 4.2 of the Company were issued, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement DateLetter, there were are no options, warrants, rightscalls, convertible rights or exchangeable securities, commitments, or undertakings of any kind agreements to which the Company or any Company Subsidiary was of its Subsidiaries is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or any of any Company Subsidiary its Subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, securitycall, commitment right or undertaking. At the close of business on the Measurement Dateagreement, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There there are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or contractual rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was of its Subsidiaries is a party or by the value of which is based on the Company or any Company Subsidiary was bound with respect to the voting value of any shares of capital stock Shares. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any shares of Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company Common Stock or any Company Subsidiary was a party or by which the Company capital stock of or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, equity interests in any shares Subsidiary.
(d) Each outstanding share of capital stock of each Subsidiary of the Company is duly authorized, validly issued, fully paid and nonassessable and owned by the Company or any Company Subsidiary. Neither the Company nor any Company another Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledgessecurity interests, liens, chargesclaims, mortgagespledges, options, rights of first refusal, agreements, limitations on voting rights, charges and other encumbrances and security interests of any kind nature whatsoever.
(e) The Company does not have any outstanding bonds, debentures, notes or nature whatsoever other obligations the holders of which have the right to vote (collectively, “Liens”) and free of any restriction on or which are convertible into or exercisable for securities having the right to vote, sell or otherwise dispose ) with the stockholders of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable)matter.
Appears in 1 contract
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 shares of the 200,000,000 Company Common Stock and 50,000,000 shares of preferred stockShares, 200,000,000 Series A Preferred Shares, no par value $0.01 per share (the “"Company Series A Shares"), 240,000 Series B Preferred Stock”Convertible Shares, andno par value (the "Company Series B Shares") and 15,000,000 additional Preferred Shares ("Company Additional Preferred Shares"). On the date hereof, together with the (i) 29,320,298 Company Common StockShares, the “29,320,288 Company Capital Stock”). At the close of business on May 8Series A Shares, 2015 (the “Measurement Date”), (a) 36,809,108 shares of 240,000 Company Common Stock (which includes 290,566 shares of Series B Shares and no Company Restricted Stock) Additional Preferred Shares were issued and outstanding outstanding, (ii) 1,997,424 Company Common Shares were available for issuance under the Company's stock option plans (the "Company Plans"), and (biii) no shares 42,718 Company Common Shares were reserved for issuance upon exercise of outstanding stock options to purchase Company Preferred Stock were issued or outstanding. All issued and outstanding shares of the capital stock of Common Shares granted under the Company are duly authorizedPlans (the "Company Share Options"). On the date of this Agreement, validly issued, fully paid and non-assessable, and no class of capital stock of the Company is entitled to preemptive rights. Except except as set forth above, at the close of business on the Measurement Datein this Section 3.2(c), no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness All outstanding shares of capital stock of the Company or any Company Subsidiary having the right are, and all shares which may be issued pursuant to vote this Agreement will be when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights. Except (or convertible into, or exchangeable for, securities having the right to voteA) on any matters on which holders of for the Company Common StockShare Options, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except B) as set forth abovein Schedule 3.2(c) to the Company Disclosure Letter and (C) as otherwise permitted under Section 4.2, as of the Measurement Datedate of this Agreement there are no outstanding securities, there were no options, stock appreciation rights, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was is a party or by which any of them was bound (i) such entity is bound, obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock stock, voting securities or other equity ownership interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Capital Structure. (a) The authorized capital stock shares of the Company consists of 1,000,000,000 12,000,000 shares of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). .
(b) At the close of business on May 8June 9, 2015 2008:
(the “Measurement Date”), (ai) 36,809,108 4,140,250 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and (b) no shares outstanding, all of Company Preferred Stock which were issued or outstanding. All issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class free of capital stock statutory and contractual preemptive rights; and
(ii) 324,786 shares of Company Common Stock were reserved for issuance pursuant to outstanding options to purchase Company Common Stock granted under the Company is entitled to preemptive rights. Except Stock Incentive Plans (collectively, the “Company Stock Options”).
(c) The Company Letter sets forth a correct and complete list as set forth above, at of the close of business on June 9, 2008 of (i) each outstanding Company Stock Option and (ii) whether it is exercisable. No Company Stock Option provides for the Measurement Datedeferral of compensation within the meaning of Treas. Reg. §1.409A-1(b)(5)(i)(A).
(d) Since the close of business on June 9, 2008, the Company has not issued or reserved for issuance any shares of Company Common Stock other than upon the exercise of Company Stock Options. Since June 9, 2008, there have been no changes to the information set forth in Section 4.3 of the Company Letter, except as a result of the exercise or settlement of any Company Stock Options.
(e) Except as set forth in Section 4.3(b), as of the date of this Agreement, there are no securities, options, warrants, calls, rights, commitments, agreements, arrangements, undertakings or contractual rights the value of which are based on the value of the capital stock or other voting securities of the Company of any kind to which the Company is a party or by which it is bound obligating the Company to issue, deliver or sell or create, or cause to be issued, delivered or sold or created, additional shares of capital stock or other voting securities of the Company were issuedor obligating the Company to issue, reserved for issuance grant, extend or outstandingenter into any such security, option, warrant, call, right, commitment, agreement, arrangement, undertaking or contractual right. To the Knowledge of the Company, there are no voting trusts, proxies, stockholder rights plans or other arrangements relating to the issuance, sale, voting, transfer, ownership or other rights with respect to any shares of capital stock of the Company.
(f) Except pursuant to the terms of the Company Stock Incentive Plans, there are no outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any shares of capital stock or equity interests of the Company.
(g) There are no outstanding bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters matter on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to ’s stockholders may vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 16,000,000 shares of the Company Common Stock and 50,000,000 2,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”share, and, together with of the Company Common Stock, the “Company Capital Stock”("COMPANY PREFERRED STOCK"). At As of the close date of business on May 8, 2015 this Agreement: (the “Measurement Date”), (ai) 36,809,108 3,657,336 shares of Company Common Stock were issued and outstanding; (which includes 290,566 ii) 2,341,524 shares of Company Restricted Stock) Common Stock were issued held by the Company in its treasury and outstanding and no shares of Company Common Stock were held by Subsidiaries of the Company; (biii) no shares of Company Preferred Stock were issued and outstanding; (iv) no shares of Company Preferred Stock were held by the Company in its treasury or outstandingwere held by any Subsidiary of the Company; (v) 1,112,755 shares of Company Common Stock were reserved for issuance pursuant to the Company Stock Plans, of which 503,991 shares are subject to outstanding Company Stock Options; and (vi) 22,295 shares of Company Common Stock are subject to Company Stock-Based Awards that are accrued as of the date hereof under the Excess ESOP. All issued and outstanding shares of the capital stock of the Company are are, and all shares thereof which may be issued prior to the Closing will be, when issued, duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class of capital stock of the Company is entitled not subject to preemptive rights. Except The Company has delivered to Parent a true and complete list, as set forth above, at of the close of business on the Measurement Datedate of this Agreement, no of all outstanding Company Stock Options granted under the Company Stock Plans and all outstanding and unvested Company Stock-Based Awards granted or accrued under the Company Stock Plans and the Excess ESOP, or otherwise granted, the number of shares subject to each such Company Stock Option or Company Stock-Based Award, the grant dates, the vesting schedule and the exercise prices (if any) of capital stock each such Company Stock Option or other voting securities Company Stock-Based Award and the names of the Company were holders thereof. Except as set forth in this Section 3.1(c), (x) there are not issued, reserved for issuance or outstanding. There are no bonds, debentures, notes outstanding (A) any shares of capital stock or voting securities or other indebtedness ownership interests of the Company, (B) any securities of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units convertible into or the general partnership exchangeable or exercisable for shares of capital stock or voting securities or other ownership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement DateCompany, there were no options, or (C) any warrants, rightscalls, convertible options or exchangeable securities, commitments, or undertakings of any kind other rights to which acquire from the Company or any Company Subsidiary was a party of the Company, or by which any obligation of them was bound (i) obligating the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in, or securities convertible into or exchangeable or exercisable for, capital stock or voting securities or other ownership interests of the Company, and (y) there are no outstanding obligations of the Company Subsidiary or any of its Subsidiaries to repurchase, redeem or otherwise acquire any such securities or to issue, deliver or sell, or cause to be issued, delivered or sold, additional any such securities, other than pursuant to any "cashless exercise" provision of any Company Stock Options as previously disclosed to Parent. Except as set forth in Section 3.1(c) of the Company Disclosure Schedule, there are no outstanding (A) securities of the Company or any of its Subsidiaries convertible into or exchangeable or exercisable for shares of capital stock or voting securities or other equity ownership interests in any Subsidiary of the Company, (B) warrants, calls, options or other rights to acquire from the Company or any of its Subsidiaries, or any obligation of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in, or any security securities convertible into or exchangeable or exercisable for or exchangeable into for, any capital stock of stock, voting securities or other equity interest ownership interests in, any Subsidiary of the Company or (C) obligations of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any such outstanding securities of Subsidiaries of the Company Subsidiary or to issue, grantdeliver or sell, extend or enter into cause to be issued, delivered or sold, any such optionsecurities. Neither the Company nor any of its Subsidiaries is a party and, warrant, security, commitment or undertaking. At to the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units knowledge of the Company OP were issued and outstanding; as of the date hereof, no other Person having beneficial ownership (dwithin the meaning of Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) no Class B Contingent Units of 5% or more of the outstanding Company Common Stock (as defined in a "MAJOR COMPANY STOCKHOLDER") is a party, to any agreement restricting the transfer of, relating to the voting of, requiring registration of, or granting any preemptive or antidilutive rights with respect to any of the securities of the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuableany of its Subsidiaries. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, voting trusts or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was of its Subsidiaries is a party or by which or, to the knowledge of the Company or as of the date hereof, any Major Company Subsidiary was bound Stockholder is a party with respect to the voting of any shares of the capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interestsSubsidiaries.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 shares of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”"COMPANY CAPITAL STOCK"). At the close of business on May 8June 10, 2015 (the “Measurement Date”)2002, (ai) 36,809,108 10,385,000 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and outstanding, (bii) no shares of Company Preferred Common Stock were issued or outstanding. All issued held by the Company in its treasury, and outstanding (iii) 1,672,157 shares of the capital stock Company Common Stock were subject to outstanding Company Stock Options (as defined in Section 6.04) and 606,943 additional shares of Company Common Stock were reserved for issuance pursuant to the Company are duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock of the Company is entitled to preemptive rightsStock Plans (as defined in Section 6.04). Except as set forth above, at the close of business on the Measurement DateJune 10, 2002, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. All outstanding shares of Company Capital Stock are, and all such shares that may be issued prior to the Effective Time will be when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the BCA, the Company Charter, the Company By-laws or any Contract (as defined in Section 3.05) to which the Company is a party or otherwise bound. There are no not any bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP Stock may vote (“Voting Company Debt”"VOTING COMPANY DEBT"). Except as set forth above, as of the Measurement Datedate of this Agreement, there were no are not any options, warrants, rights, convertible or exchangeable securities, "phantom" stock rights, stock appreciation rights, stock-based performance units, commitments, Contracts, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or Debt, (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment commitment, Contract, arrangement or undertaking. At undertaking or (iii) that give any person the close of business on right to receive any economic benefit or right similar to or derived from the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued economic benefits and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or rights occurring to holders of Company OP Units other than as set forth on Section 3.02(a) Capital Stock. As of the Company Disclosure Letter. Section 3.02(a) date of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Datethis Agreement, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, not any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which outstanding contractual obligations of the Company or any Company Subsidiary was a party to repurchase, redeem or by which the Company or any Company Subsidiary was bound with respect to the voting of otherwise acquire any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Sources: Merger Agreement (Technisource Inc)
Capital Structure. The Corporation’s authorized capital consists of an unlimited number of Common Shares and an unlimited number of preferred shares, issuable in series. As of the date of this Subscription Agreement:
(a) The authorized capital stock there are no outstanding securities of the Company consists of 1,000,000,000 shares of the Company Corporation other than: (i) 216,542,042 Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”), (a) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were Shares issued and outstanding and (b) no shares of Company Preferred Stock were issued or outstanding. All issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, as fully paid and non-assessableassessable common shares in the capital of the Corporation, (ii) 15,798,003 options to purchase Common Shares, (iii) warrants (other than Facility Warrants and Commitment Warrants) exercisable into 62,174,960 Common Shares, (iv) $21,463,000 aggregate principal amount of senior secured convertible debentures pursuant to the Secured Trust Indenture, and no class of capital stock (v) any Securities issued pursuant to this Subscription Agreement;
(b) to the knowledge of the Company is entitled to preemptive rights. Except as set forth aboveCorporation, at the close of business on the Measurement Dateafter reasonable inquiry, no shares of capital stock person has a beneficial interest in 20% or other voting securities more of the Company were issuedissued and outstanding Common Shares;
(c) other than the securities referred to in Section 6.5(a) or as subsequently disclosed to the Investor in writing, reserved for issuance or outstanding. There there are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, outstanding agreements or undertakings of any kind to which the Company or any Company Subsidiary was Corporation is a party party, or by which any of them was bound (i) it is bound, obligating the Company or any Company Subsidiary it to offer, issue, deliver or deliver, sell, repurchase or redeem or cause to be offered, issued, delivered or delivered, sold, additional repurchased or redeemed any shares of in its authorized capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary it to issue, grant, extend grant or enter into any such option, warrant, securitycall, right, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; agreement;
(d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of Common Shares in the Company OPCorporation and in each Subsidiary are duly authorized, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free fully paid; and
(e) other than pursuant to the terms and conditions of preemptive rights. The Company OP GP is the sole general partner any securities of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, Corporation outstanding as of the close date of business on this Subscription Agreement, no person has any right to require the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock Corporation or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its Subsidiaries to, at any time, offer, transfer, create, issue or allot any share, loan capital stock or other equity interests.
securities (c) Except as set forth or any rights or interest in Section 3.02(cthem) of the Company Disclosure LetterCorporation or any of its Subsidiaries, all and neither the Corporation nor any of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Companyits Subsidiaries has agreed to confer any such rights, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of no person has claimed any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Lawsright.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Sources: Subscription Agreement
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 50,000,000 shares of the Company Common Stock Stock, no par value, and 50,000,000 5,000,000 shares of preferred stock, par value $0.01 per share (the “Company Company's Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”)no par value. At the close of business on May 8December 20, 2015 (the “Measurement Date”)1996, (ai) 36,809,108 25,541,311 shares of the Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and outstanding, (bii) no shares of the Company Common Stock were held by the Company in its treasury, (iii) 2,356,216 shares of the Company Common Stock were reserved for issuance upon exercise of the Stock Options, (iv) 994,908 shares of the Company Common Stock were reserved for issuance upon exercise of Company Stock Options available for grant under the Stock Option Plan, (v) 38,122 shares of the Company Common Stock were reserved for issuance under the Company Purchase Plan, and (vi) 3,000,000 shares of the Company Common Stock were reserved for issuance upon exercise of the Warrants. As of December 20, 1996, there are no shares of the Company's Preferred Stock were issued or outstanding. All issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock of the Company is entitled to preemptive rights. Except as set forth above, at the close of business on the Measurement DateDecember 20, 1996, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. All options to purchase shares of Company Common Stock were granted under the Stock Option Plan. There are no outstanding stock appreciation rights of the Company and no outstanding limited stock appreciation rights or other rights to redeem for cash options or warrants of the Company. All outstanding shares of capital stock of the Company are, and all shares which may be issued upon the exercise of Stock Options and Warrants will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders shareholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”)vote. Except as set forth above, as of the Measurement Datedate of this Agreement, there were are no outstanding securities, options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was of its subsidiaries is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary of its subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock voting securities of or other equity interest in, the Company or of any Company Subsidiary of its subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its subsidiaries to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).,
Appears in 1 contract
Capital Structure. (a) The authorized share capital stock of the Company consists of 1,000,000,000 shares 125,000,000 Common Shares. As of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 820, 2015 (the “Measurement Date”)2008, (a) 36,809,108 shares of Company 50,351,566 Common Stock (which includes 290,566 shares of Company Restricted Stock) Shares were issued and outstanding and outstanding. No Common Shares are held by any subsidiary of the Company. Other than restricted Common Shares (b“Restricted Shares”) granted to employees of the Company, since April 30, 2008 to the date of this Agreement, there have been no issuances of shares of the Company Preferred Stock were issued or outstandingany other securities of the Company. All issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable, and no class of the Company’s share capital stock of the Company is entitled to preemptive rights. Except as set forth aboveAs of May 20, at 2008, options to purchase 181,265 Common Shares (“Stock Options”) and 3,959,724 Restricted Shares were outstanding. No Stock Option (i) has a per share exercise price lower than the close fair market value of business a Common Share on the Measurement Datedate of grant of such Stock Option, no shares (ii) has had its grant date backdated or (iii) has had its grant date delayed in order to take advantage of capital stock the release or other voting securities public announcement of the Company were issued, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness of material non-public information regarding the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to voteits subsidiaries. Section 4.2(a) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set Disclosure Schedules sets forth abovea correct and complete list, as of the Measurement Datedate of this Agreement, of outstanding Restricted Shares and Stock Options, including the holder thereof, the date of grant, the term (in the case of Stock Options), the number of Common Shares subject to such Stock Option, the Company stock plan, if applicable, under which such award was granted and, where applicable, the exercise price.
(b) Except as otherwise set forth in this Section 4.2(b) or in Section 4.2(b) of the Disclosure Schedules, as of the date of this Agreement, there were are no securities, options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was of its subsidiaries is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary of its subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock voting securities of or other equity interest in, the Company or any of any Company Subsidiary its subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its subsidiaries to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units As of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership date of this Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There , there are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock obligations of the Company or any Company Subsidiaryof its subsidiaries to repurchase, redeem or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, otherwise acquire any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interestssubsidiaries.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 75,000,000 shares of the Company Common Stock and 50,000,000 shares of preferred stockStock, par value $0.01 per share share. As of July 1, 1997, (i) 27,340,088 shares of Common Stock were issued and outstanding, and (ii) 1,572,316 shares of Common Stock were reserved for issuance pursuant to the “Company Preferred Stock”outstanding employee stock options ("Plan Options") granted pursuant to the Stock Plans (as defined in Section 7.04), and other options ("Other Options" and, together with the Company Common StockPlan Options, the “Company Capital Stock”). At the close of business on May 8"Stock Options") granted to employees, 2015 (the “Measurement Date”)directors and consultants and former employees, (a) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued directors and outstanding and (b) no shares of Company Preferred Stock were issued or outstanding. All issued and outstanding shares consultants of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock of the Company is entitled to preemptive rightsCompany. Except as set forth above, at as of the close date of business on the Measurement Datethis Agreement, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. All outstanding shares of capital stock of the Company are, and all shares which may be issued pursuant to the Stock Plans or pursuant to the agreements representing outstanding Other Options described in clause (iii) above shall be, when issued and paid for in accordance with the terms of the applicable Stock Plan or Other Option, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights. There are no not any bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders stockholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”)vote. Except as set forth abovein Section 4.03 of the Disclosure Schedule hereto, as of the Measurement Datedate of this Agreement, there were no are not any securities, options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was of its Significant Subsidiaries is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary of its Significant Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock voting securities of or other equity interest in, the Company or any of any Company Subsidiary its Significant Subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its Sig nificant Subsidiaries to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units As of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership date of this Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, not any capital stock of, or other voting securities or ownership interests in, outstanding contractual obligations of the Company or any Company Subsidiaryof its Significant Subsidiaries to purchase, (ii) voting trusts, proxies redeem or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of otherwise acquire any shares of capital stock of the Company or any Company Subsidiaryof its Significant Subsidiaries or to provide funds to make any investment (in the form of a loan, capital contribution or (iiiotherwise) contractual obligations or commitments of in any character to which the Company Significant Subsidiary or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interestsentity.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Capital Structure. (ai) The authorized capital stock of the Company Purchaser consists of 1,000,000,000 800,000,000 shares of the Company Purchaser Common Stock Stock, par value $0.01 per share, and 50,000,000 100,000,000 shares of preferred stock, par value $0.01 per share share.
(ii) As of the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close date of business on May 8, 2015 (the “Measurement Date”)this Agreement, (aA) 36,809,108 85,412,062 shares of Company Purchaser Common Stock (which includes 290,566 shares of Company Restricted Stock) were are issued and outstanding and (b) no shares outstanding, all of Company Preferred Stock were issued or outstanding. All issued and outstanding shares of the capital stock of the Company which are duly authorized, validly issued, fully paid and nonnonassessable and were issued in full compliance with all applicable laws and not in violation of any preemptive rights; (B) no shares of Purchaser preferred stock are issued and outstanding; and (C) 512,334 shares of Purchaser Common Stock are reserved for issuance pursuant to outstanding grants or awards under Purchaser’s stock-assessable, and no class based benefit plans.
(iii) The shares of capital stock Purchaser Common Stock to be issued in exchange for shares of Company Common Stock upon consummation of the Company is entitled Merger in accordance with this Agreement have been duly authorized and when issued in accordance with the terms of this Agreement, will be validly issued, fully paid and nonassessable and subject to no preemptive rights. .
(iv) No bonds, debentures, notes or other indebtedness having the right to vote on any matters on which stockholders of Purchaser may vote are issued or outstanding.
(v) Except as set forth abovein this Section 3.3(c), at as of the close date of business on the Measurement Datethis Agreement, (A) no shares of capital stock or other voting securities of the Company were Purchaser are issued, reserved for issuance or outstanding. There are no bonds, debentures, notes or and (B) other indebtedness than options to purchase shares of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Purchaser Common Stock, neither the Company OP Units nor any of its Subsidiaries has or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth aboveis bound by any outstanding subscriptions, as of the Measurement Date, there were no options, warrants, calls, rights, convertible or exchangeable securities, commitments, commitments or undertakings agreements of any kind to which the Company character obligating Purchaser or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, any additional shares of capital stock of Purchaser (including any rights plan or other equity interests in, agreement) or obligating Purchaser or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, convertible security, commitment or undertakingagreement. At Neither Purchaser nor any of its Subsidiaries has or is bound by any rights of any character relating to the close purchase, sale or issuance or voting of, or right to receive dividends or other distributions on shares of business on Purchaser Common Stock, or any other security of Purchaser or a Subsidiary of Purchaser or any securities representing the Measurement Dateright to vote, (a) Company OP GP, as sole general partner purchase or otherwise receive any shares of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units Purchaser Common Stock or any other security of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding Purchaser or issuable. There are no partners a Subsidiary of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OPPurchaser. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letteras stated herein, the Company directly owns all of the issued and there are no outstanding Company OP Units of the Company OP, free and clear of securities or instruments that contain any Liensredemption or similar provisions, and all Company OP Units have been duly authorized and validly issued and there are free no outstanding contractual obligations of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company Purchaser or any Company Subsidiaryof its Subsidiaries to repurchase, (ii) voting trusts, proxies redeem or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of otherwise acquire any shares of capital stock of the Company Purchaser or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interestsSubsidiaries.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 shares 60,000,000 Shares, of the Company Common Stock and 50,000,000 shares which 20,039,444 Shares were outstanding as of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8September 27, 2015 1996. All of the outstanding Shares have been duly authorized and are validly issued, fully paid and nonassessable. The Company has no Shares reserved for issuance, except that, as of September 27, 1996, there were an aggregate of 3,733,941 Shares reserved for issuance pursuant to the Company's 1996 Stock Plan, 1996 Stock Bonus Plan for Senior Executives, Director's Deferred Compensation Plan, 1996 Stock Retainer Plan for Non-employee Directors, 1993 Employee Stock Purchase Plan, 1987 Stock Option and Appreciation Right Plan, 1989 Stock Plan, 1994 Stock Plan, 1984 Stock Option and Appreciation Right Plan, and Savings and Retirement Plan (the “Measurement Date”"STOCK PLANS"), 4,754,677 Shares reserved for issuance pursuant to the Rights Agreement, dated as of August 2, 1988, between the Company and The Chase Manhattan Bank, N.A. (a) 36,809,108 shares the "RIGHTS AGREEMENT"). The Company Disclosure Letter contains a correct and complete list of Company Common each outstanding option to purchase Shares under the Stock Plans (which includes 290,566 shares each a "COMPANY OPTION"), including the holder, date of Company Restricted Stock) were issued grant, exercise price and outstanding and (b) no shares number of Company Preferred Stock were issued or outstandingShares subject thereto. All issued and Each of the outstanding shares of the capital stock or other securities of each of the Company are Company's Subsidiaries is duly authorized, validly issued, fully paid and non-assessablenonassessable and, and no class of capital stock except for directors' qualifying shares, owned by a direct or indirect wholly owned subsidiary of the Company is entitled to preemptive rightsCompany, free and clear of any lien, pledge, security interest, claim or other encumbrance. Except as set forth above, at the close of business on the Measurement Datethere are no preemptive or other outstanding rights, no options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements or commitments to issue or sell any shares of capital stock or other voting securities of the Company were issuedor any of its Subsidiaries or any securities or obligations convertible or exchangeable into or exercisable for, reserved or giving any Person a right to subscribe for issuance or acquire, any securities of the Company or any of its Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued or outstanding. There are no The Company does not have outstanding any bonds, debentures, notes or other indebtedness obligations the holders of the Company or any Company Subsidiary having which have the right to vote (or convertible into, into or exchangeable for, exercisable for securities having the right to vote) on any matters on which holders with the stockholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full matter (except to the extent such dividends have been publicly announced and are not yet due and payable"VOTING DEBT").
Appears in 1 contract
Sources: Merger Agreement (Augat Inc)
Capital Structure. (a) The As of the date of this Agreement, the authorized capital stock of the Company consists of 1,000,000,000 100,000,000 shares of the Company Common Stock and 50,000,000 10,000,000 shares of preferred stock, par value $0.01 0.001 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8October 16, 2015 2018 (such date and time, the “Measurement Date”), (ai) 36,809,108 81,759,272 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and outstanding, (bii) no shares of Company Preferred Stock were issued or and outstanding. All issued and outstanding , (iii) no shares of the capital stock of Company Common Stock were held by the Company are duly authorizedin its treasury, validly issued(iv) 8,948,849 shares of Company Common Stock were reserved and available for issuance pursuant to the Company’s 2007 Stock Plan and the Company’s 2010 Equity Incentive Plan, fully paid of which (A) 5,312,681 shares of Company Common Stock were subject to outstanding Company Stock Options and non-assessable(B) 1,077,001 shares of Company Common Stock were subject to outstanding Company RSUs, (v) 744,190 shares of Company Common Stock were reserved and no class of capital stock of available for issuance pursuant to the Company is entitled ESPP and (vi) 722,000 shares of Company Common Stock were subject to preemptive rightsthe Company Warrant. Except as set forth above, at the close As of business on the Measurement Date, no (A) shares of capital stock or other voting securities of, (B) other equity or voting interests in, (C) securities convertible into or exchangeable for, or options, warrants or other rights to acquire or receive any, capital stock, voting securities or other equity interests in, or (D) stock appreciation rights, “phantom” stock rights, or other rights that give the holder thereof any economic or voting interest of a nature accruing to the holders of capital stock in (clauses (A), (B), (C) and (D), collectively, “Equity Interests”), the Company were issued, reserved for issuance or outstandingoutstanding except as set forth in this Section 3.02(a). There are no bonds, debentures, notes or other indebtedness From and after the Measurement Date through the date of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stockthis Agreement, the Company OP Units has not (i) issued any Equity Interests or (ii) incurred any obligation to make any payments based on the general partnership interests price or value of any Equity Interests or dividends (or other distributions) paid thereon or revenues, earnings or financial performance or any other attribute of the Company, in each case other than pursuant to the Company OP may vote (“Voting Stock Options, Company Debt”). Except as set forth aboveRSUs, the Company Warrant and other purchase rights and stock awards granted pursuant to the Company Stock Plans, in each case that were outstanding as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any and in accordance with their respective terms as in effect at such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Lienstime.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Sources: Merger Agreement (Endocyte Inc)
Capital Structure. (ai) The authorized capital stock of the Company IIBK consists of 1,000,000,000 20,000,000 shares of the Company IIBK Common Stock and 50,000,000 10,000,000 shares of preferred stock, $0.10 par value $0.01 per share share.
(ii) As of the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close date of business on May 8, 2015 this Agreement:
(the “Measurement Date”), (aA) 36,809,108 7,739,024 shares of Company IIBK Common Stock (which includes 290,566 shares of Company Restricted Stock) were are issued and outstanding and (b) no shares outstanding, all of Company Preferred Stock were issued or outstanding. All issued and outstanding shares of the capital stock of the Company which are duly authorized, validly issued, fully paid and non-assessablenonassessable and were issued in full compliance with all applicable laws and not in violation of any preemptive rights;
(B) no shares of IIBK preferred stock are issued and outstanding; and
(C) 351,580 shares of IIBK Common Stock are reserved for issuance pursuant to outstanding IIBK Stock Options (including exercisable and unexercisable IIBK Stock Options).
(iii) Set forth in IIBK’s Disclosure Letter is a complete and accurate list of all outstanding IIBK Stock Options, and no class of capital stock including the names of the Company is entitled optionees, dates of grant, exercise prices, dates of vesting, dates of termination, shares subject to preemptive rights. each grant and whether stock appreciation, limited or other similar rights were granted in connection with such options.
(iv) No bonds, debentures, notes or other indebtedness having the right to vote on any matters on which stockholders of IIBK may vote are issued or outstanding.
(v) Except as set forth abovein this Section 3.2(c), at as of the close date of business on the Measurement Datethis Agreement, (A) no shares of capital stock or other voting securities of the Company were IIBK are issued, reserved for issuance or outstanding. There are no bonds, debenturesand (B) other than IIBK Stock Options, notes neither IIBK nor any of its Subsidiaries has or other indebtedness of the Company or is bound by any Company Subsidiary having the right to vote (or convertible intooutstanding subscriptions, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, calls, rights, convertible or exchangeable securities, commitments, commitments or undertakings agreements of any kind to which the Company character obligating IIBK or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, any additional shares of capital stock of IIBK (including any rights plan or other equity interests in, agreement) or obligating IIBK or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, convertible security, commitment or undertakingagreement. At Neither IIBK nor any of its Subsidiaries has or is bound by any rights of any character relating to the close purchase, sale, issuance or voting of, or right to receive dividends or other distributions on shares of business on IIBK Common Stock, or any other security of IIBK or a Subsidiary of IIBK or any securities representing the Measurement Dateright to vote, (a) Company OP GP, as sole general partner purchase or otherwise receive any shares of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units IIBK Common Stock or any other security of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding IIBK or issuable. There are no partners a Subsidiary of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OPIIBK. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letteras stated herein, the Company directly owns all of the issued and there are no outstanding Company OP Units of the Company OP, free and clear of securities or instruments that contain any Liensredemption or similar provisions, and all Company OP Units have been duly authorized and validly issued and there are free no outstanding contractual obligations of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company IIBK or any Company Subsidiaryof its Subsidiaries to repurchase, (ii) voting trusts, proxies redeem or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of otherwise acquire any shares of capital stock of the Company IIBK or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interestsSubsidiaries.
(cvi) Except Other than the Voting Agreements and as set forth in Section 3.02(c) of the Company IIBK’s Disclosure Letter, all there are no voting trusts, shareholder agreements, proxies or similar agreements to which IIBK or any of its Subsidiaries is a party in effect with respect to the outstanding shares voting or transfer of capital stock IIBK Common Stock or other voting securities or equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary IIBK or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of granting any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock shareholder or other equity interests other than transfer and other restrictions under applicable federal and state securities Lawsperson any registration rights. IIBK does not have in effect a “poison pill” or similar shareholder rights plan.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 100,000,000 shares of the Company Common Stock and Stock; 50,000,000 shares of preferred stock, par value $0.01 .01 per share (the “Company Preferred Stock”"PREFERRED STOCK"); and 50,000,000 shares of excess common stock, and, together with the Company Common Stock, the “Company Capital Stock”par value $.01 per share ("EXCESS COMMON STOCK"). At On the close of business on May 8, 2015 date hereof (the “Measurement Date”), (ai) 36,809,108 14,791,165 shares of Company Common Stock (including 84,486 shares held by the Residential Management Corporation, a portion of which includes 290,566 shall be sold pursuant to Section 1.9 hereof) and no shares of Company Restricted Stock) Preferred Stock or Excess Stock were issued and outstanding and outstanding, (bii) no shares of Company Common Stock, Preferred Stock or Excess Stock were issued or outstanding. All issued and outstanding held by the Company in its treasury, (iii) no shares of Common Stock were available for issuance under the capital stock Company's employee benefit or incentive plans pursuant to awards granted by the Company (the "COMPANY EMPLOYEE STOCK PLANS"), (iv) 279,000 shares of Common Stock were issuable upon exercise of outstanding options (the "COMPANY OPTIONS") to purchase Common Stock, (v) 3,675,258 shares of Common Stock were reserved for issuance upon the redemption of units of partnership interest in the Operating Partnership (the "UNITS") for shares of Common Stock pursuant to the Operating Partnership Agreement and (vi) 50,000 shares of Common Stock are reserved for issuance upon exercise of the Company are duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock of warrants set forth on SCHEDULE 3.1(c) to the Company is entitled to preemptive rightsDisclosure Letter. Except On the date of this Agreement, except as set forth above, at above in this Section 3.1(c) or as required pursuant to the close of business on the Measurement DateOperating Partnership Agreement, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no outstanding stock appreciation rights relating to the capital stock of the Company. All outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders shareholders of the Company Common Stock, may vote. Except (A) for the Company OP Options, (B) for the Units (which, under the Operating Partnership Agreement, may be redeemed by limited partners of the Operating Partnership (other than Units held by GP Holdings or LP Holdings) for one share of Common Stock per Unit or the general partnership interests in cash equivalent thereof, at the Company OP may vote Company's election), (“Voting Company Debt”). Except C) as set forth abovein SCHEDULE 3.1(c) to the Company Disclosure Letter, or (D) as otherwise permitted under Section 4.1, as of the Measurement Datedate of this Agreement there are no outstanding securities, there were no options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was is a party or by which any of them was bound (i) such entity is bound, obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock stock, voting securities or other equity ownership interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, undertaking (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of other than to the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the or a Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuableSubsidiary). There are no partners of the Company OP or holders of Company OP Units other than Except as set forth on Section 3.02(aSCHEDULE 3.1(c) of the Company Disclosure Letter. Section 3.02(a) of to the Company Disclosure Letter sets forth or as required under the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement DateOperating Partnership Agreement, there were are no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which outstanding contractual obligations of the Company or any Company Subsidiary was a party to repurchase, redeem or by which the Company or any Company Subsidiary was bound with respect to the voting of otherwise acquire any shares of capital stock of the Company or any Company Subsidiarycapital stock, voting securities or (iii) contractual obligations or commitments of any character to which the Company or other ownership interests in any Company Subsidiary was or make any material investment (in the form of a party loan, capital contribution or by which the Company or otherwise) in any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any person (other than a Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Sources: Merger Agreement (Paragon Group Inc)
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 shares of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital without par value, 1,000,000 shares of "preferential stock" of Company, without par value ("Preferential Stock”"), and 1,000,000 shares of "preference stock" of Company, without par value ("Preference Stock"). At Subject to any Permitted Changes (as defined in Section 6.1(d)) there were, as of the close of business on May 815, 2015 2000: (the “Measurement Date”), (ai) 36,809,108 17,058,833 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and outstanding; (bii) no shares of either Preferential Stock or Preference Stock issued and outstanding; (iii) 3,015,764 shares of Company Preferred Common Stock were issued held in the treasury of Company; and (iv) 1,000,664 shares of Company Common Stock reserved for issuance upon exercise of outstanding Company Stock Options. Company has made available to Buyer and MergerCo the exercise price for the outstanding Company Stock Options. Except as set forth above or in Section 4.3 of the Disclosure Schedule, no shares of capital stock or other equity securities of Company are issued, reserved for issuance or outstanding. All issued and outstanding shares of the capital stock of Company are, and all shares which may be issued pursuant to the Company are Stock Option Plan including any increases pursuant to existing contractual obligations will be, when issued, duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class of capital stock of the Company is entitled not subject to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities Section 4.3 of the Company were issuedDisclosure Schedule, reserved for issuance or outstanding. There there are no outstanding bonds, debentures, notes or other indebtedness or other securities of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders shareholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”)vote. Except as set forth above, as of the Measurement Datethere are no outstanding securities, there were no options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was of its Subsidiaries is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock voting securities of or other equity interest in, the Company or of any Company Subsidiary of its Subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners outstanding contractual obligations, commitments, understandings or arrangements of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiaryof its Subsidiaries to repurchase, (ii) voting trusts, proxies redeem or other similar agreements otherwise acquire or understandings to which the Company or make any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with payment in respect to the voting of any shares of capital stock of the Company or any Company Subsidiaryof its Subsidiaries. To the knowledge of Company, or (iii) contractual obligations or commitments of any character there are no irrevocable proxies with respect to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interestsSubsidiaries.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Sources: Offer to Purchase (Murdock David H)
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 160,000,000 Shares, of which 67,212,548 Shares were outstanding as of the close of business on the date of this Agreement, and 5,000,000 shares of the Company Common Stock and 50,000,000 shares of preferred stockPreferred Stock, having a par value of $0.01 .01 per share (the “Preferred Shares”), of which zero shares are outstanding as of the date hereof. All of the outstanding Shares have been duly authorized and are validly issued, fully paid and nonassessable. The Company has no Shares or Preferred Stock”Shares reserved for issuance, andexcept that, together with as of the Company Common Stockdate of this Agreement, there were 6,039,159 Shares reserved for issuance pursuant to the Company’s 1990 Stock Plan, as amended, and Non-Management Director Stock Option Plan (together, the “Stock Plans”), and 80,000 Preferred Shares reserved for issuance pursuant to the Rights Agreement, dated as of March 16, 1999 and amended as of April 3, 2002, between the Company Capital Stockand Mellon Investor Services LLC, as Rights Agent (the “Rights Agreement”). At Section 5.1(b) of the close Company Disclosure Schedule contains a correct and complete list of business on May 8each Company Option and Company Award as of a date within one week of the date hereof, 2015 including the date of grant, exercise price (as applicable) and number of Shares subject thereto. Each of the “Measurement Date”), (a) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and (b) no shares of Company Preferred Stock were issued or outstanding. All issued and outstanding shares of the capital stock or other securities of each of the Company are Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonnonassessable and owned by the Company or by a direct or indirect wholly-assessable, and no class of capital stock owned Subsidiary of the Company is entitled to preemptive rightsCompany, free and clear of any Lien. Except as set forth aboveabove and pursuant to the Rights Agreement, at there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, commitments or rights of any kind that obligate the close Company or any of business on the Measurement Dateits Subsidiaries to issue, no transfer LA_LAN01:179306.23 or sell any shares of capital stock or other voting securities of the Company were issuedor any of its Subsidiaries or any securities or obligations convertible or exchangeable into or exercisable for, reserved or giving any Person a right to subscribe for issuance or acquire, any securities of the Company or any of its Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued or outstanding. There are no The Company does not have outstanding any bonds, debentures, notes or other indebtedness obligations the holders of the Company or any Company Subsidiary having which have the right to vote (or convertible into, into or exchangeable for, exercisable for securities having the right to vote) on any matters on which holders with the stockholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote on any matter (“Voting Company Debt”). Except as set forth above, as The Company Disclosure Schedule contains a true and complete list of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to each Person in which the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits basedowns, directly or indirectly, on any voting interest that may require a filing by Parent under the value or price of▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, any capital stock of, or other voting securities or ownership interests in, as amended (the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “LiensHSR Act”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Capital Structure. (a) The authorized capital stock of the Company Ezlogin consists of 1,000,000,000 (i) 25,000,000 shares of the Company Common Stock Stock, par value $0.001 per share ("Ezlogin Common Stock"), and 50,000,000 (ii) 9,100,000 shares of preferred stock, par value $0.01 0.001 per share (the “Company share, of which 2,400,000 shares have been designated as Series A Preferred Stock and 6,700,000 shares have been designated as Series B Preferred Stock”. As of May 9, and2000, together with the Company there are (i) 7,262,990 shares of Ezlogin Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”)Stock issued and outstanding, (aii) 36,809,108 2,400,000 shares of Company Common Series A Preferred Stock issued and outstanding, and (which includes 290,566 iii) 3,701,665 shares of Company Restricted Stock) were Series B Preferred Stock issued and outstanding and (b) no shares of Company Preferred Stock were issued or outstanding. All issued and There are no other outstanding shares of the capital stock or voting securities and no outstanding commitments to issue any shares of capital stock or voting securities, other than pursuant to the Company exercise of options outstanding as of May 9, 2000 under the Ezlogin Stock Option Plan or the conversion of Preferred Stock outstanding on May 9, 2000 into Ezlogin Common Stock. Attached to or as set forth in Schedule 2.2 to the Ezlogin Disclosure Schedule is a true and correct list of Ezlogin's Shareholders, Optionholders and any persons with rights to acquire Ezlogin securities (showing the name of each holder, they type of right, the number of shares subject to the right, and the exercise price, vesting and other restrictions applicable to each such right), including, without limitation, any rights to acquire Ezlogin securities held by employees, consultants or other third parties, as compensation for services rendered, upon the achievement of predetermined goals, upon termination of agreements between Ezlogin and such persons, or for any other reason ("Bonus Shares"), which list will be updated prior to Closing to reflect any changes thereto (which changes are in any event subject to the restrictions imposed under Section 4.2 below). All outstanding shares of Ezlogin Capital Stock are duly authorized, validly issued, fully paid and non-assessable, are free of any liens or encumbrances (other than any liens or encumbrances created by the holder thereof), and no class of capital stock of the Company is entitled are not subject to preemptive rights. Except rights or rights of first refusal created by statute, the Articles of Incorporation or Bylaws of Ezlogin or, except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities Schedule 2.2 of the Company were issuedEzlogin Disclosure Schedule, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind agreement to which the Company or any Company Subsidiary was Ezlogin is a party or by which any it is bound.
(b) Ezlogin has reserved 3,000,000 shares of them was bound Common Stock for issuance to employees, consultants and directors, pursuant to the Ezlogin Stock Option Plan, of which as of May 9, 2000, 226,000 shares have been issued pursuant to option exercises or direct stock purchases, 1,974,833 shares are subject to outstanding, unexercised options, and 799,167 shares are available for future grant thereunder. Except for (i) the rights created pursuant to this Agreement, (ii) Ezlogin's right to repurchase any unvested shares under the Ezlogin Stock Option Plan, to the extent indicated on Schedule 2.2 (showing the repurchase price and the schedule for the lapsing of any repurchase right), and (iii) as otherwise set forth on Schedule 2.2 of the Ezlogin Disclosure Schedule, there are no other options, warrants, calls, rights, commitments or agreements of any character to which Ezlogin is a party or by which it is bound obligating the Company or any Company Subsidiary Ezlogin to issue, deliver deliver, sell, repurchase or sellredeem, or cause to be issued, delivered or delivered, sold, additional repurchased or redeemed, any shares of capital stock of Ezlogin or other equity interests inobligating Ezlogin to grant, extend, accelerate the vesting of, change the price of, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend otherwise amend or enter into any such option, warrant, securitycall, right, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interestsagreement.
(c) Except for the agreements contemplated by this Agreement, or as otherwise set forth in Section 3.02(c) on Schedule 2.2 of the Company Ezlogin Disclosure LetterSchedule, all there are no contracts, commitments or agreements relating to voting, purchase or sale of the outstanding shares of Ezlogin's capital stock (i) between or other equity interests among Ezlogin and any of each Company Subsidiary are owned by the Companyits securityholders or (ii) to Ezlogin's Knowledge, by another Company Subsidiary between or by the Company and another Company Subsidiary, free and clear among any of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities LawsEzlogin's securityholders.
(d) The terms of the Ezlogin Stock Option Plan and the applicable stock option agreements permit the termination or assumption of the options to purchase Ezlogin Common Stock as provided in this Agreement, without the consent or approval of the holders of such securities, the Ezlogin Shareholders, or otherwise. Except as contemplated hereby or as otherwise set forth on Schedule 2.2 of the Ezlogin Disclosure Schedule, none of the outstanding options permit any accelerated vesting or exercisability of those options by reason of the Merger or any other transactions contemplated by this Agreement. True and complete copies of all agreements and instruments relating to or issued under the Ezlogin Stock Option Plan or relating to any other Ezlogin Convertible Securities have been made available to 724 Solutions and such agreements and instruments have not been amended, modified or supplemented, and there are no agreements to amend, modify or supplement such agreements or instruments in any case from the form provided to 724 Solutions, except as contemplated by Section 5.9 of this Agreement.
(e) All dividends or other distributions on the outstanding shares of Company Common Ezlogin Capital Stock and any material dividends or other distributions on any all outstanding Ezlogin Options were issued in compliance with all applicable federal, state and foreign securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable)laws.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (724 Solutions Inc)
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 shares 200,000,000 Shares, of which 29,479,864 Shares were outstanding as of the Company Common Stock close of business on March 1, 2007, and 50,000,000 15,000,000 shares of preferred stock, par value $0.01 per share (none of which were outstanding as of the “Company Preferred Stock”, and, together with date hereof. Except as set forth in Schedule 5.1(b) of the Company Common StockDisclosure Letter, no Shares are held in the treasury of the Company or by any of its Subsidiaries. All of the outstanding Shares have been duly authorized and are validly issued, fully paid and nonassessable. Except as set forth in Schedule 5.1(b) of the Company Disclosure Letter and other than the Shares reserved for issuance as of March 1, 2007, under the 1998 Stock Option Plan for Management and Key Employees and the 2004 Stock Incentive Plan and the outstanding non-employee options and warrants (collectively, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement DateStock Plans”), (athe Company has no Shares reserved for issuance. Schedule 5.1(b) 36,809,108 of the Company Disclosure Letter contains a correct and complete list of options, restricted stock, performance stock units and restricted stock units, if any, outstanding as of the date hereof under the Stock Plans, including the holder, date of grant, term, number of Shares and, where applicable, exercise price. Except as set forth in Schedule 5.1(b) of the Company Disclosure Letter or as set forth above, there are no preemptive or other outstanding rights, options, 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 sell any shares of capital stock or other equity securities of the Company Common Stock (which includes 290,566 shares or any of its Subsidiaries or any securities or obligations convertible or exchangeable into or exercisable for, or giving any Person a right to subscribe for or acquire, any equity securities of the Company Restricted Stock) were issued or any of its Subsidiaries, and outstanding and (b) no shares of Company Preferred Stock were securities or obligations evidencing such rights are authorized, issued or outstanding. All issued and outstanding shares Upon any issuance of any Shares in accordance with the terms of the capital stock of the Company are Stock Plans, such Shares will be duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class free and clear of capital stock of the any Liens. The Company is entitled to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no does not have outstanding any bonds, debentures, notes or other indebtedness obligations for borrowed money the holders of the Company or any Company Subsidiary having which have the right to vote (or convertible into, into or exchangeable for, exercisable for securities having the right to vote) on any matters on which holders with the stockholders of the Company Common Stockon any matter. For purposes of this Agreement, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company a wholly owned Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners shall include any Subsidiary of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns which all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company such Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any other than director qualifying shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company (or a wholly owned Subsidiary of the Company, by another Company Subsidiary or by ). With respect to the Company and another Company SubsidiaryOptions, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities there has been no grant of any Company Subsidiary which have been authorized and declared prior to Option since the date hereof have been paid in full of the Company’s initial public offering of its common stock, $0.01 par value (except the “IPO”) other than 25,166 Company Options granted to employees at fair market value as of the extent such dividends have been publicly announced and are not yet due and payable)applicable grant date.
Appears in 1 contract
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 shares of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”), (a) 36,809,108 200,000,000 shares of Company Common Stock of which 30,213,572 were outstanding as of September 10, 1999 and 40,000,000 shares of Preferred Stock (the "Company Preferred Stock"), of which includes 290,566 none are outstanding as of the date hereof and none of which are held by Subsidiaries of Company. In addition, as of September 10, 1999 there were 4,494,597 shares of Company Restricted StockCommon Stock issuable upon the exercise of outstanding stock options ("Company Options") were issued under the 1995 Nonemployee Director Stock Option Plan, the 1995 Long-Term Incentive Compensation Plan, the 1990 Stock Option Plan and any other stock option plans and other options (together with the 1995 Employee Stock Purchase Plan, the "Company Incentive and Stock Option Plans"). All outstanding and (b) no shares of Company Preferred Common Stock were issued or outstanding. All issued are, and outstanding any shares of Company Common Stock issued upon exercise of any Company Options will be, upon issuance on the capital stock of terms and conditions specified in the Company instruments pursuant to which they are duly authorizedissuable, validly issued, fully paid paid, nonassessable and non-assessable, and no class of capital stock of the Company is entitled not subject to any preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness of the to any agreement to which Company or any of its Subsidiaries is a party or by which Company Subsidiary having or any of its Subsidiaries may be bound other than agreements pursuant to which Company has the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders repurchase shares of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as for the shares of Common Stock issuable upon the Measurement Dateexercise of Company Options, there were no are not any options, warrants, calls, conversion rights, convertible or exchangeable securities, commitments, agreements, contracts, understandings, restrictions, arrangements or undertakings rights of any kind character to which the Company or any Subsidiary of Company Subsidiary was is a party or by which any of them was may be bound (i) obligating the Company or any Subsidiary of Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any the capital stock of or other equity interest in, the Company or of any Subsidiary of Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Subsidiary of Company Subsidiary to issue, grant, extend or enter into any such option, warrant, securitycall, commitment conversion right, commitment, agreement, contract, understanding, restriction, arrangement or undertakingright. At Company does not have outstanding any bonds, debentures, notes or other indebtedness the close holders of business on which have the Measurement Date, right to vote (aor convertible or exercisable into securities having the right to vote) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or with holders of Company OP Units other than as set forth Common Stock on Section 3.02(a) of the any matter ("Company Disclosure LetterVoting Debt"). Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits basedowner, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any all outstanding shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any each of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, Subsidiaries free and clear of all liens, pledges, lienssecurity interests, charges, mortgages, claims or other encumbrances and security interests of any kind or nature whatsoever (collectivelyall such shares are duly authorized, “Liens”) validly issued, fully paid and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Lawsnonassessable.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Capital Structure. (a) The As of the date of this Agreement, the authorized capital stock of the Company Parent consists of 1,000,000,000 90,000,000 shares of the Company Parent Common Stock and 50,000,000 1,000,000 shares of preferred stock, par value $0.01 per share stock of Parent (the “Company "Parent Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”"). At As of the close of business on May 8July 25, 2015 1997, there were: (the “Measurement Date”), (ai) 36,809,108 45,599,755 shares of Company Parent Common Stock issued and outstanding; (which includes 290,566 ii) 1,773,597 shares of Company Restricted StockParent Common Stock held in the treasury of Parent; (iii) were issued 5,233,411 shares of Parent Common Stock reserved for issuance pursuant to Parent's stock option plans, Parent's employee stock purchase plans and outstanding Parent's Director Stock Purchase and Deferred Compensation Plan (such plans, collectively with the 1997 Stock Incentive Plan approved on August 21, 1997 subject to stockholder approval, the "Parent Stock Plans"); (iv) 3,356,441 shares of Parent Common Stock issuable upon exercise of awarded but unexercised stock options; and (bv) no shares of Company Parent Preferred Stock outstanding. Except as set forth above and except for shares of junior participating preferred stock issuable pursuant to the Shareholder Protection Rights Agreement, dated as of April 30, 1989, between Parent and The First National Bank of Boston, as of the close of business on July 25, 1997 there were issued no shares of capital stock or other equity securities of Parent issued, reserved for issuance or outstanding. All issued and outstanding shares of the capital stock of the Company are Parent are, and all shares which may be issued as described above will be, when issued, duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class of capital stock of the Company is entitled not subject to preemptive rights. There is no outstanding Voting Debt of Parent. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There there are no bondsoutstanding securities, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was Parent is a party or by which any of them was it is bound (i) obligating the Company or any Company Subsidiary Parent to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible voting securities of Parent or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary Parent to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners outstanding contractual obligations, commitments, understandings or arrangements of the Company OP Parent to repurchase, redeem or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner otherwise acquire or make any payment in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of Parent. During the Company period from July 25, 1997 through the date of this Agreement, except as set forth in Section 3.02(b) of the Parent Disclosure Schedule, Parent did not (A) issue or permit to be issued any Company Subsidiaryshares of capital stock, or securities exercisable for or convertible into shares of capital stock, of Parent, other than pursuant to or as permitted by the terms of the Parent Stock Plans; (iiiB) contractual obligations repurchase, redeem or commitments of any character to which the Company otherwise acquire, directly or any Company Subsidiary was a party indirectly through one or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale ofmore subsidiaries, any shares of capital stock of Parent; or (C) declare, set aside, make or pay to the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights stockholders of first refusal or similar rights with respect to any of its capital stock Parent dividends or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of distributions on the outstanding shares of capital stock or of Parent (other equity interests than regular quarterly cash dividends on the Parent Common Stock). As of each Company Subsidiary the date hereof, the authorized capital stock of Sub consists of 1,000 shares of common stock, par value $.01 per share, all of which have been validly issued, are fully paid and nonassessable and are owned by the Company, by another Company Subsidiary or by the Company and another Company SubsidiaryParent, free and clear of any Lien, and as of the Closing Date, all pledges, liens, charges, mortgages, encumbrances the issued and security interests outstanding shares of the common stock of Sub will be owned by Parent free and clear of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities LawsLien.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Sources: Merger Agreement (Perkin Elmer Corp)
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 shares of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share Twenty Million (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”), (a20,000,000) 36,809,108 shares of Company Common Stock Stock. There are Eleven Million Four Hundred Sixty-six Thousand, Six Hundred Sixty-six (which includes 290,566 11,466,666) common shares of Company Restricted Stock) were issued and outstanding and (b) Common Stock outstanding. Except as set forth above, no shares of capital stock or other equity securities of the Company Preferred Stock were issued are issued, reserved for issuance or outstanding. All issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class of capital stock of the Company is entitled not subject to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no outstanding bonds, debentures, notes or other indebtedness or other securities of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders shareholders of the Company Common Stock, may vote. The Company Disclosure Schedule sets forth the Company OP Units or outstanding Capitalization of the general partnership interests in the Company OP may vote (“Voting Company Debt”)Company. Except as set forth above, as of in the Measurement Datecompany disclosure schedule, there were are no outstanding securities, options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was is a party or by which any of them was it is bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock voting securities of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners Stock Options and Company Warrants, there are no outstanding contractual obligations, commitments, understandings or arrangements of the Company OP set forth to repurchase, redeem or otherwise acquire or make any payment in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company Company. There are no agreements or any Company Subsidiary, or (iii) contractual obligations or commitments of any character arrangements pursuant to which the Company is or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect could be required to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the register shares of Company Common Stock and any material dividends or other distributions on securities under the Securities Act of 1933, as amended (the "Securities Act") or other agreements or arrangements with or among any security holders of the Company with respect to securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable)Company.
Appears in 1 contract
Sources: Acquisition Agreement (Absolute Glass Protection Inc)
Capital Structure. (ai) The authorized capital stock of the Company consists of 1,000,000,000 250 million (250,000,000) shares of the Company Common Stock and 50,000,000 shares of preferred stockStock, par value $0.01 0.001 per share, and 10 million (10,000,000) shares of Preferred Stock, par value $0.001 per share (the “Company Preferred Stock”). As of the close of business on December 31, and2003, together with (A) 49,697,838 shares of the Company Common Stock were issued (including shares held in treasury), 12,488,743 shares of the Company Common Stock were reserved for issuance upon the exercise or payment of outstanding stock options, stock units or other awards or were issuable pursuant to the Company’s 1996 Stock Option Plan, 1999 Employee Stock Purchase Plan and the Company’s 2000 NSO Stock Plan (collectively, the “Company Stock Plans”), 2,238,642 shares of the Company Common Stock were reserved for issuance pursuant to the exercise of outstanding warrants to purchase the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”), (a) 36,809,108 and no shares of the Company Common Stock (which includes 290,566 shares of were held by the Company Restricted Stock) were issued and outstanding in its treasury or by its Subsidiaries; and (bB) no shares of the Company Preferred Stock were issued outstanding or outstandingreserved for issuance except pursuant to the Company’s Preferred Stock Rights Agreement, dated as of March 31, 2003, between the Company and Mellon Investor Services LLC (as successor Rights Agent). All issued and outstanding shares of the capital stock Company Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and not subject to preemptive rights. The shares of the Company are Common Stock which may be issued pursuant to the Company Stock Plans have been duly authorizedauthorized and, if and when issued pursuant to the terms thereof, will be validly issued, fully paid and non-assessable, assessable and no class of capital stock of the Company is entitled not subject to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no .
(ii) No bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP stockholders may vote (“Voting Company Debt”). ) of the Company are issued or outstanding.
(iii) Except for (A) this Agreement, (B) the Company Stock Plans, (C) as set forth abovein the disclosure schedule delivered by the Company to Purchaser Group concurrently herewith (the “Company Disclosure Schedule”), and (D) agreements entered into and securities and other instruments issued after the date of this Agreement as of the Measurement Datepermitted by Section 4.1, there were are no options, warrants, calls, rights, convertible commitments or exchangeable securities, commitments, or undertakings agreements of any kind character to which the Company or any Subsidiary of the Company Subsidiary was is a party or by which it or any of them was such Subsidiary is bound (i) obligating the Company or any Subsidiary of the Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, any Voting Debt or any security convertible or exercisable for or exchangeable into any capital stock appreciation rights of or other equity interest in, the Company or of any Subsidiary of the Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Subsidiary of the Company Subsidiary to issue, grant, extend or enter into any such option, warrant, securitycall, right, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuableagreement. There are no partners outstanding contractual obligations of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiaryof its Subsidiaries (A) to repurchase, (ii) voting trusts, proxies redeem or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of otherwise acquire any shares of capital stock of the Company or any of its Subsidiaries, other than the Company Subsidiary, Stock Plans or (iiiB) contractual obligations or commitments of any character except as described in the Company Disclosure Schedule, pursuant to which the Company or any of its Subsidiaries is or could be required to register shares of the Company Subsidiary was a party Common Stock or other securities under the Securities Act of 1933, as amended (the “Securities Act”), except the Company Stock Plans and any such contractual obligations entered into after the date hereof as permitted by which Section 4.1.
(iv) Since December 31, 2003, except as set forth in the Company Disclosure Schedule and except as permitted by Section 4.1, the Company has not (A) issued or permitted to be issued any shares of capital stock, stock appreciation rights or securities exercisable or exchangeable for or convertible into shares of capital stock of the Company or any of its Subsidiaries, other than pursuant to and as required by the terms of the Company Subsidiary was bound restricting Stock Plans and any employee stock options and other awards issued prior to the transfer ofdate hereof under the Company Stock Plans (or issued after the date hereof in compliance with Section 4.1; (B) repurchased, redeemed or requiring otherwise acquired, directly or indirectly through one or more the registration for sale ofCompany Subsidiaries, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock Subsidiaries; or other equity interests.
(cC) Except as declared, set forth in Section 3.02(c) aside, made or paid to the stockholders of the Company Disclosure Letter, all of dividends or other distributions on the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Sources: Merger Agreement (Walden Vc Ii L P)
Capital Structure. (a) The authorized capital stock of the Company ----------------- consists of 1,000,000,000 100,000,000 shares of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock. Subject to any Permitted Changes (as defined in Section 4.1(b)) following the date of this Agreement, the “Company Capital Stock”). At the close of business on May 8, 2015 there are (the “Measurement Date”), (ai) 36,809,108 30,174,081 shares of Company Common Stock issued and outstanding, (which includes 290,566 ii) 118,000 shares of Company Restricted StockCommon Stock held in the treasury of the Company or held by any subsidiary of the Company; (iii) were 791,580 shares of Company Common Stock reserved for issuance upon exercise of authorized but unissued Company Stock Options pursuant to the Option Plans; (iv) 545,358 shares of Company Common Stock issuable upon exercise of outstanding Company Stock Options, (v) 99,510 shares of Company Common Stock issued and outstanding (and included in the number stated in clause (i) above) subject to restrictions under the Restricted Stock Plan, and (bvi) an aggregate of 400 shares of Company Common Stock issuable under the Nonemployee Directors Stock Plan. As of September 30, 1996, there were $582,000 withheld from the Company's employees' salaries to purchase shares of Company Common Stock pursuant to and issuable under the Stock Purchase Plan. Except as set forth above, no shares of capital stock or other equity securities of the Company Preferred Stock were issued are issued, reserved for issuance or outstanding. All issued and outstanding shares of the capital stock of the Company are are, and all shares which may be issued pursuant to the Stock Plans will be when issued, duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class of capital stock of the Company is entitled not subject to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no outstanding bonds, debentures, notes or other indebtedness or other securities of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders stockholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”)vote. Except as set forth above, as of the Measurement Datethere are no outstanding securities, there were no options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was of its subsidiaries is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary of its subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock voting securities of or other equity interest in, the Company or of any Company Subsidiary of its subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its subsidiaries to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners Stock Options, (i) there are no outstanding contractual obligations, commitments, understandings or arrangements of the Company OP set forth or any of its subsidiaries to repurchase, redeem or otherwise acquire or make any payment in Section 3.02(a) respect of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities measured or rights that are derivative of, or provide economic benefits based, directly or indirectly, determined based on the value or market price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiaryof its subsidiaries and (ii) to the knowledge of the Company, or (iii) contractual obligations or commitments of any character there are no irrevocable proxies with respect to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiarysubsidiary of the Company. Neither There are no agreements or arrangements pursuant to which the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights is or rights of first refusal or similar rights with respect could be required to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the register shares of Company Common Stock and any material dividends or other distributions on any securities under the Securities Act of any Company Subsidiary which have been authorized and declared prior to 1933, as amended (the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable"Securities Act").
Appears in 1 contract
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 shares 500,000,000 Shares, of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”), (a) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) 245,210,886 Shares were issued and outstanding and (b) no shares of Company Preferred Stock were issued or outstanding. All issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock of the Company is entitled to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on November 30, 2006, and 5,250 shares of preferred stock, none of which were outstanding as of the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests indate hereof. Since such date, the Company or has not issued any Shares other than the issuance of Shares upon the exercise of Company Options outstanding on such date and since December 8, 2006, the Company has not issued any Company SubsidiaryOptions other than ordinary course “anniversary grants” of Company Options that are not, in the aggregate, material. All of the outstanding Shares have been duly authorized and are validly issued, fully paid and nonassessable. As of the date of this Agreement, other than Shares reserved for issuance under the Biomet, Inc. 1998 Qualified and Non-Qualified Stock Option Plan and the 2006 Equity Incentive Plan (ii) voting trustscollectively, proxies or other similar agreements or understandings to which the “Stock Plans”), the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration has no Shares reserved for sale of, any shares of capital stock of the Company or any Company Subsidiaryissuance. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c5.1(b) of the Company Disclosure LetterLetter contains a correct and complete list as of December 8, all 2006 of options, restricted stock, performance stock units, restricted stock units and any other equity or equity-based awards (including cash-settled awards), if any, outstanding under the Stock Plans, including the holder, date of grant, term, number of Shares and, where applicable, exercise price. Each of the outstanding shares of capital stock or other equity interests securities of each Company Subsidiary are of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable and owned by the Company, by another Company Subsidiary or by a direct or indirect wholly owned Subsidiary of the Company and another Company SubsidiaryCompany, free and clear of all pledgesany lien, lienscharge, chargespledge, mortgagessecurity interest, encumbrances and security interests claim or other encumbrance (each, a “Lien”). Except as set forth above, there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, commitments or rights of any kind that obligate the Company or nature whatsoever (collectively, “Liens”) and free any of its Subsidiaries to issue or sell any restriction on the right to vote, sell or otherwise dispose shares of such capital stock or other equity interests other than transfer securities of the Company or any of its Significant Subsidiaries or any securities or obligations convertible or exchangeable into or exercisable for, or giving any Person a right to subscribe for or acquire, any equity securities of the Company or any of its Significant Subsidiaries, or contractual obligations of the Company or any of its Subsidiaries to make any payments directly or indirectly based (in whole or in part) on the price or value of the Shares or preferred shares, and other restrictions under applicable federal no securities or obligations evidencing such rights are authorized, issued or outstanding. Upon any issuance of any Shares in accordance with the terms of the Stock Plans, such Shares will be duly authorized, validly issued, fully paid and state securities Laws.
(d) All dividends nonassessable and free and clear of any Liens. The Company does not have outstanding any bonds, debentures, notes or other distributions obligations for borrowed money the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the shareholders of the Company or any of its Significant Subsidiaries on any matter. For purposes of this Agreement, a wholly owned Subsidiary of the Company shall include any Subsidiary of the Company of which all of the shares of capital stock of such Subsidiary other than director qualifying shares are owned by the Company Common Stock and any material dividends (or other distributions on any securities a wholly owned Subsidiary of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payableCompany).
Appears in 1 contract
Sources: Merger Agreement (Biomet Inc)
Capital Structure. (a) The authorized capital stock of the Company General consists of 1,000,000,000 250,000,000 shares of the Company General Common Stock and 50,000,000 20,000,000 shares of preferred stock, par value $0.01 per share (the “Company of which 1,754,386 shares have been designated as General Preferred Stock”. Subject to any Permitted Changes (as defined in Section 5.1(b)) following the date of this Agreement, andthere are approximately (i) 75,750,000 shares of General Common Stock issued and outstanding, together with (ii) 1,700,000 shares of General Preferred Stock issued and outstanding, (iii) 27,150,000 shares of General Common Stock and 60,000 shares of General Preferred Stock held in the Company treasury of General or held by any subsidiary of General; (iv) 1,000,000 shares of General Common Stock, Stock reserved for issuance upon exercise of authorized but unissued General Stock Options pursuant to the “Company Capital Stock”)Option Plans; and (v) 5,500,000 shares of General Common Stock issuable upon exercise of outstanding General Stock Options. At As of the close date hereof there were no amounts withheld from General's employees' salaries to purchase shares of business on May 8, 2015 (General Common Stock pursuant to and issuable under the “Measurement Date”Stock Purchase Plan. Except as set forth in this Section 4.2(c), (a) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and (b) no shares of Company Preferred Stock were issued capital stock or other equity securities of General are issued, reserved for issuance or outstanding. All issued and outstanding shares of the capital stock of General are, and all shares which may be issued pursuant to the Company are Stock Plans will be when issued, duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class of capital stock of the Company is entitled not subject to preemptive rights. Except as set forth abovein this Section 4.2(c) or in the Stock Option Agreement, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There there are no outstanding bonds, debentures, notes or other indebtedness or other securities of the Company or any Company Subsidiary General having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders stockholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP General may vote (“Voting Company Debt”)vote. Except as set forth above, as of in this Section 4.2(c) or in the Measurement DateStock Option Agreement, there were are no outstanding securities, options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company General or any Company Subsidiary was of its subsidiaries is a party or by which any of them was is bound (i) obligating the Company General or any Company Subsidiary of its subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock voting securities of or other equity interest in, the Company General or of any Company Subsidiary of its subsidiaries or obligating General or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its subsidiaries to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than General Stock Options and the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure LetterStock Option Agreement, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted sharesthere are no outstanding contractual obligations, restricted share unitscommitments, stock appreciation rightsunderstandings or arrangements of General or any of its subsidiaries to repurchase, performance shares, performance share units, contingent value rights, “phantom” stock redeem or similar securities otherwise acquire or rights that are derivative of, make any payment in respect of or provide economic benefits based, directly measured or indirectly, determined based on the value or market price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company General or any Company Subsidiaryof its subsidiaries and (ii) to the knowledge of General, or (iii) contractual obligations or commitments of any character there are no irrevocable proxies with respect to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company General or any Company Subsidiarysubsidiary of General. Neither Other than pursuant to the Company nor any Company Subsidiary has granted any preemptive rightsStock Option Agreement, anti-dilutive rights there are no agreements or rights arrangements pursuant to which General is or could be required to register shares of first refusal or similar rights with respect to any of its capital stock General Stock or other equity interests.
securities under the Securities Act of 1933, as amended (c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable"Securities Act").
Appears in 1 contract
Sources: Merger Agreement (General Re Corp)
Capital Structure. (a) The authorized capital stock Capital Stock of the Company consists of 1,000,000,000 shares (i) 20,000,000 Class A Shares of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”), (a) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were 2,799,045 are issued and outstanding as of the date of this Agreement and (bii) no shares 8,000,000 Class B Shares of Company Preferred Stock were issued or outstanding. All which none are issued and outstanding shares as of the capital stock date of this Agreement. All of the Company issued and outstanding Shares have been duly authorized and are duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock nonassessable. None of the Company is entitled to issued and outstanding Shares was issued in violation of any federal or state securities or “blue sky” laws or any preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities Section 4.2(a) of the Company were issuedDisclosure Schedules, reserved for issuance or outstandingno option to purchase Shares has been granted. There are no The Company does not have outstanding any bonds, debentures, notes or other indebtedness obligations the holders of the Company or any Company Subsidiary having which have the right to vote (or convertible into, into or exchangeable for, exercisable for securities having the right to vote) on any matters on which holders with the Shareholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of on any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liensmatter.
(b) Except for the ESOP and as set forth above, as in Section 4.2(b) of the close of business on the Measurement DateCompany Disclosure Schedule, there were no are (i) restricted sharesno options, restricted share unitswarrants, stock appreciation convertible securities or other rights, performance sharesagreements, performance share units, contingent value rights, “phantom” stock arrangements or similar securities commitments of any character relating to the Shares or rights that are derivative obligating the Company to issue or sell any Shares of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests interest in, the Company or any Company SubsidiaryCompany, (ii) outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any shares of Capital Stock or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person, or (iii) voting trusts, agreements with any holders of Shares or any other Equity Securities of the Company, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound in effect with respect to the voting or transfer of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interestsShares.
(c) Except as set forth in Section 3.02(c) The stock register of the Company Disclosure Letteraccurately records: (i) the name and address of each Person (including the ESOP) owning Shares, all (ii) the certificate number of the outstanding each certificate evidencing shares of capital stock or other equity interests of each Company Subsidiary are owned issued by the Company, (iii) the number of shares evidenced by another Company Subsidiary or by the Company and another Company Subsidiaryeach such certificate, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”iv) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid of issuance thereof and (v) in full (except to the extent such dividends have been publicly announced and are not yet due and payable)case of cancellation, the date of cancellation. The ESOP holds 985,447 Shares as of the date of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (ACE LTD)
Capital Structure. (ai) The As of May 12, 1998 the authorized capital stock of the Company consists Target consisted of 1,000,000,000 shares of the Company Common Stock and (A) 50,000,000 shares of Target Common Stock, par value $.01, of which 23,508,155 shares were outstanding and 60,100 were held in treasury and (B) 500,000 shares of authorized preferred stock, par value $0.01 per share (.01, of which no shares were outstanding. Since May 12, 1998 to the “Company Preferred Stock”date of this Agreement, and, together with the Company Common Stock, the “Company Capital Stock”). At the close there have been no issuances of business on May 8, 2015 (the “Measurement Date”), (a) 36,809,108 shares of Company Common the capital stock of Target or any other securities of Target other than issuances of shares pursuant to options outstanding under the Target Stock Plans (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and (b) no shares of Company Preferred Stock were issued or outstandingas defined in SECTION 5.6(a)). All issued and outstanding shares of the capital stock of the Company Target are duly authorized, validly issued, fully paid and non-assessablenonassessable, and no class of capital stock of the Company is entitled to preemptive rights and no such shares have been issued in violation of any preemptive or similar rights. Except There were outstanding as set forth aboveof May 12, at 1998 no options, warrants or other rights to acquire capital stock from Target other than options to acquire 2,098,257 shares of Target Common Stock under the close Target Stock Plans. Other than issuances of business on options pursuant to the Measurement DateTarget Stock Plans permitted under the terms of this Agreement, no shares of options or warrants or other rights to acquire capital stock from Target have been issued or other voting securities of the Company were issuedgranted since May 12, reserved for issuance or outstanding. There are no 1998.
(ii) No bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary Target having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP stockholders may vote (“Voting Company Debt”). "TARGET VOTING DEBT") are issued or outstanding.
(iii) Except as otherwise set forth above, as of the Measurement Datein this SECTION 3.1(c), there were are no securities, options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company Target or any Company Subsidiary was of its Subsidiaries is a party or by which any of them was is bound (i) obligating the Company Target or any Company Subsidiary of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, voting securities of Target or any security convertible of its Subsidiaries or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary obligating Target or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, grant, extend or enter into any such security, subscription, option, warrant, securitycall, commitment right, commitment, agreement, arrangement, understanding or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners outstanding obligations of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company Target or any Company Subsidiaryof its Subsidiaries to repurchase, (ii) voting trusts, proxies redeem or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of otherwise acquire any shares of capital stock of the Company Target or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
Subsidiaries. Target has previously furnished to Parent a schedule showing the names of and number of shares of Target Common Stock (c) Except including the number of shares issuable upon exercise of options granted under the Target Benefit Plans (as set forth defined in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”8.11(k)) and free the exercise price and vesting schedule with respect thereto) and the number of any restriction on the right options held by all holders of options to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).purchase Target
Appears in 1 contract
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 (i) 22,000,000 shares of the Company Common Stock Stock, par value $0.001 per share, (“Company Common Shares”) of which as of the date hereof 2,019,918 shares are issued and 50,000,000 outstanding and (ii) 14,527,210 shares of preferred stock, par value $0.01 0.001 per share (“Company Preferred Shares”) of which (A) 14,527,210 shares have been designated Series A-1 Preferred stock (“Series A-1 Preferred”) of which 5,286,641 shares are outstanding. For purposes of this Agreement, the Company Common Shares and the Series A-1 Preferred shall collectively be referred to as the “Company Preferred Stock”Shares.” As of the date hereof, and, together with the 542,867 Company Common Stock, Shares are reserved for issuance upon the exercise of outstanding Company options pursuant to Company’s 2001 Stock Incentive Plan and 30 Company Common Shares are reserved for issuance under the Company’s 1997 Incentive Stock Plan (the 2001 Stock Incentive Plan and the 1997 Incentive Stock Plan being the “Company Capital StockOption Plans”). At the close of business on May 8, 2015 (the “Measurement Date”), (a) 36,809,108 shares of and an additional 1,847 Company Common Stock (which includes 290,566 shares Shares are reserved for issuance upon exercise of Company Restricted Stock) were issued and outstanding and (b) warrants. There are no shares of Company Preferred Stock were issued or outstanding. All issued and outstanding shares of the capital stock of the Company are duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock of the Company is entitled to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting equity securities of the Company were issuednor any outstanding options, reserved for issuance or outstanding. There are no bonds, debentures, notes or warrants and other indebtedness of the Company or any Company Subsidiary having the right to vote (or securities convertible into, or exchangeable for, for equity securities having the right to vote) on any matters on which holders of the Company Common Stock, other than the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as Shares and options and warrants set forth aboveon Schedule 2.1.2, as of the Measurement Dateand no Company Shares are held by Company in its treasury.
(b) All outstanding Company Shares are validly issued, there were no optionsfully paid, warrants, nonassessable and not subject to any preemptive rights, convertible or exchangeable securities, commitments, or undertakings of to any kind agreement to which the Company or any Company Subsidiary was is a party or by which Company may be bound. There are not any options, warrants, calls, conversion rights, commitments, agreements, contracts, understandings, restrictions, arrangements or rights of them was any character to which Company is a party or by which Company may be bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any the capital stock of Company, or other equity interest in, the obligating Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, securitycall, commitment conversion right, conversion payment, commitment, agreement, contract, understanding, restriction, arrangement or undertakingright. At Company does not have outstanding any bonds, debentures, notes or other indebtedness the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no which (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock have the right to vote (or similar convertible or exercisable into securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on having the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares with holders of Company Common Stock and any material dividends or other distributions Shares on any securities matter (“Company Voting Debt”) or (ii) are or will become entitled to receive any payment as a result of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to execution of this Agreement or the extent such dividends have been publicly announced and are not yet due and payable)completion of the transactions contemplated hereby.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Primus Knowledge Solutions Inc)
Capital Structure. (a) The As of the date hereof, the authorized capital shares of stock of the Company consists Acquiror consist of 1,000,000,000 (i) 200,000,000 shares of the Company common stock ("Acquiror Common Stock Shares"), 115,705,929 of which were issued and outstanding, (ii) 7,000,000 shares of Class B common stock ("Acquiror Class B Common Stock"), all of which were issued and outstanding (iii) 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close 11,129,650 of business on May 8, 2015 (the “Measurement Date”), (a) 36,809,108 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and (iv) 200,000,000 shares of equity stock, 225,000 shares of which were issued and outstanding. As of the date hereof, (i) 7,000,000 Acquiror Common Shares were reserved for issuance upon conversion of the Acquiror Class B Common Stock, (ii) 4,938,809 Acquiror Common Shares were reserved for issuance under Acquiror's stock option and incentive plans and (iii) up to 500,000 Acquiror Common Shares were reserved for issuance in connection with the merger of PS Partners VIII Merger Co., Inc. into PS Partners VIII, Ltd., a California Limited Partnership. On the date hereof, except as set forth in this Section 3.3 or Schedule 3.3, no Acquiror Common Shares or other voting securities of Acquiror were issued, reserved for issuance or outstanding.
(b) no shares of Company Preferred Stock were issued or outstanding. All issued and outstanding shares of the capital stock of the Company Acquiror Common Shares are duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class of capital stock of the Company is entitled not subject to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no bonds, debentures, notes or other indebtedness of the Company Acquiror, or assets of any Company Subsidiary other entities exchangeable into Acquiror Shares having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders shareholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP Acquiror may vote vote.
(“Voting Company Debt”). c) Except as set forth abovein this Section 3.3 or in Schedule 3.3, as of the Measurement Datedate of this Agreement there are no outstanding securities, there were no options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company Acquiror or any Company Acquiror Subsidiary was is a party or by which any of them was bound (i) such entity is bound, obligating the Company Acquiror or any Company Acquiror Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock stock, voting securities or other equity ownership interests in, of Acquiror or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Acquiror Subsidiary or any Voting Company Debt or (ii) obligating the Company Acquiror or any Company Acquiror Subsidiary to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(cd) Except as set forth in Section 3.02(c) of the Company Disclosure LetterSchedule 3.3, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary Acquiror Shares which have been authorized and or declared prior to the date hereof of this Agreement have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable)full.
Appears in 1 contract
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 200,000,000 shares of the Company Common Stock and 50,000,000 20,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At As of the close of business on May 8March 24, 2015 (the “Measurement Date”)2010, (ai) 36,809,108 22,371,376.0496 shares of Company Common Stock (which includes 290,566 shares of Company Restricted Stock) were issued and outstanding and outstanding, (bii) no shares of Company Preferred Stock were issued or outstanding. All issued and outstanding , (iii) no shares of Common Stock were held by the capital stock Company in its treasury and (iv) no Shares were owned by any Subsidiary of the Company. As of the close of business on March 24, 2010, other than 5,161,232 shares of Common Stock reserved for issuance upon exercise of outstanding Company Options under the Option Plans, the Company has no Shares reserved for issuance under any equity compensation plan. Section 3.2(a) of the Company are duly authorizedDisclosure Schedule contains a correct and complete list, validly issuedas of the date of this Agreement, fully paid and non-assessableof each Company Option issued under the Option Plans, including the holder of such Company Option, the date of grant of such Company Option, the number of Shares subject to such Company Option, the exercise price applicable to each such Company Option, the Option Plan under which such Company Option was granted, whether such Company Option is an “incentive stock option” within the meaning of Section 422(b) of the Code, and no class the portion of such Company Option that is currently vested. All of the outstanding shares of capital stock of the Company is entitled to have been duly authorized and validly issued and are fully paid and nonassessable and are not subject to, and were not issued in violation of, any preemptive rights. Except as set forth aboveAll Shares issuable upon exercise of Company Options have been duly reserved for issuance by the Company, at and upon any issuance of such Shares in accordance with the close terms of business on the Measurement DateOption Plans, no will be duly authorized, validly issued and fully paid and nonassessable and will not be subject to, and will not be issued in violation of, any preemptive rights.
(b) All of the issued and outstanding shares of capital stock or other voting securities Equity Interests of each of the Subsidiaries of the Company were have been duly authorized and validly issued, reserved and are fully paid and nonassessable and free and clear of any Liens (other than, with respect to Equity Interests of the Subsidiaries of the Company, Liens securing indebtedness under the Credit Agreement as in effect on the date of this Agreement), and are not subject to, and were not issued in violation of, any preemptive rights, and are owned of record and beneficially by the Company or by a direct or indirect wholly-owned Subsidiary of the Company, free and clear of any Lien (except for issuance such transfer restrictions of general applicability as may be provided under the Securities Act and other applicable securities Laws). Section 3.2(b) of the Company Disclosure Schedule sets forth the name of each Subsidiary of the Company, the jurisdiction of organization of each Subsidiary, the number of issued and outstanding Equity Interests of such Subsidiary and the record and beneficial owner of each such outstanding Equity Interest of such Subsidiary.
(c) Except as set forth on Section 3.2(a) of the Company Disclosure Schedule, there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, commitments or rights of any kind to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound relating to the issued or unissued Equity Interests of the Company or any of its Subsidiaries, or securities convertible into or exchangeable for such Equity Interests or obligating the Company or any of its Subsidiaries to issue or sell any shares of capital stock or other Equity Interests of the Company or any of its Subsidiaries, or any securities or obligations convertible or exchangeable into or exercisable for, or giving any Person a right to subscribe for or acquire, any capital stock or other Equity Interests of the Company or any of its Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued or outstanding. Except as set forth in Section 3.2(a) of the Company Disclosure Schedule, there are no outstanding Contracts to which the Company or any of its Subsidiaries is a party affecting the voting rights of, or requiring the repurchase, redemption, issuance, creation or disposition of, any Equity Interests in the Company or any of its Subsidiaries. Since March 24, 2010, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, or securities convertible into or exchangeable for such capital stock or any other Equity Interests in the Company or any of its Subsidiaries, except for issuances of Common Stock pursuant to exercise of Company Options set forth on Section 3.2(a) of the Company Disclosure Schedule and outstanding as of such date in accordance with the terms of such Company Options as of such date. There are no outstanding bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary of its Subsidiaries having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters matter on which holders the stockholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no options, warrants, rights, convertible or exchangeable securities, commitments, or undertakings of any kind to which the Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, security, commitment or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; its Subsidiaries may vote.
(d) no Class B Contingent Units (as defined in Except for the Company OP Limited Partnership Agreement) were issued capital stock and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners Equity Interests of the Company OP or holders of Company OP Units other than as Company’s Subsidiaries set forth on Section 3.02(a3.2(b) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure LetterSchedule, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits baseddoes not own, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or Equity Interests in any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company SubsidiaryPerson. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock Subsidiaries has entered into any commitment, arrangement or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure LetterContract, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Companyis otherwise obligated, by another Company Subsidiary or by the Company and another Company Subsidiaryto contribute capital, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell loan money or otherwise dispose of such capital stock provide funds or make any investment in any other equity interests other than transfer and other restrictions under applicable federal and state securities LawsPerson.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Sources: Merger Agreement (BWAY Holding CO)
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 shares of the Company Common Stock and 50,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”), (a) 36,809,108 10,000,000 shares of Company Common Stock (which includes 290,566 and 2,416,668 shares of Company Restricted Preferred Stock. As of December 31, 1999 (i) 4,061,945 shares of Company Common Stock were issued and outstanding; (ii) 1,290,036 shares of Company Common Stock were subject to outstanding Options; (iii) 590,000 shares of Company Common Stock were subject to outstanding Warrants; (iv) no shares of Company Common Stock were held in the treasury of the Company; and (bv) no shares of Company Preferred Stock were issued or and outstanding. Except as set forth in Part 3.2(a) of the Disclosure Letter, since December 31, 1999 through the date of this Agreement, (A) no Options or Warrants to purchase shares of Company Common Stock have been granted, (B) no shares of Company Common Stock have been issued other than pursuant to the exercise of Options and Warrants outstanding on December 31, 1999 and (C) no shares of Company Preferred Stock have been issued other than the 383,142 shares of Company Preferred Stock issued to Stryker. Part 3.2(a) of the Disclosure Letter sets forth a complete and correct list, as of the date hereof, of all holders of Options and Warrants including such person's name, the number of Options (vested, unvested and total) or Warrants held by such person, the date of grant and the exercise price for each such Option or Warrant.
(b) All issued and the outstanding shares of the capital stock of the Company Common Stock and Company Preferred Stock are duly authorized, validly issued, fully paid and non-assessable. Except as set forth in paragraph (a) above, and (i) there are no class shares of capital stock of the Company is entitled to preemptive rights. Except as set forth aboveauthorized, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance issued or outstanding. There , (ii) there are no bonds, debentures, notes authorized or other indebtedness of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”). Except as set forth above, as of the Measurement Date, there were no outstanding options, warrants, calls, preemptive rights, convertible subscriptions or exchangeable securitiesother rights, commitmentsagreements, arrangements or undertakings commitments of any kind to which the character obligating any Acquired Company or any Company Subsidiary was a party or by which any of them was bound (i) obligating the Company or any Company Subsidiary to issue, deliver transfer or sell, sell or cause to be issued, delivered transferred or sold, additional sold any shares of capital stock or other equity interests ininterest in any Acquired Company or securities convertible into or exchangeable for such shares or equity interests, or obligating any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Acquired Company or of any Company Subsidiary or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary to issue, grant, extend or enter into any such option, warrant, securitycall, commitment subscription or undertaking. At the close other right, agreement, arrangement or commitment, and (iii) there are no outstanding contractual obligations of business on the Measurement Dateany Acquired Company to repurchase, redeem or otherwise acquire any shares or other capital stock of any Acquired Company or to provide funds to make any investment (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the form of a loan, capital contribution or otherwise) in any Acquired Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the an Acquired Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP that is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits basedwholly owned, directly or indirectly, on by the value or price of, any capital stock of, entity obligated to provide such funds) or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock or other equity interestsentity.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable).
Appears in 1 contract
Capital Structure. (a) The authorized capital stock of the Company consists of 1,000,000,000 (i) 20,000,000 shares of the Company Common Stock Stock, par value $.01 per share, and 50,000,000 (ii) 500,000 shares of preferred stock. Subject to any Permitted Changes there are, par value $0.01 per share as of September 30, 1996: (the “Company Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on May 8, 2015 (the “Measurement Date”), (ai) 36,809,108 8,676,631 shares of Company Common Stock issued and outstanding; (which includes 290,566 ii) 218 shares of Company Restricted StockCommon Stock held in the treasury of the Company; (iii) were issued and 606,000 shares of Company Common Stock reserved for issuance upon exercise of authorized but unissued Company Stock Options pursuant to the Stock Plans; (iv) 348,100 shares of Company Common Stock issuable upon exercise of outstanding Company Stock Options and (bv) shares of preferred stock reserved for issuance in connection with the Rights Agreement. Section 3.3 of the Disclosure Schedule sets forth the exercise price for the outstanding Company Stock Options. Except as set forth above, as of September 30, 1996, no shares of capital stock or other equity securities of the Company Preferred Stock were issued are issued, reserved for issuance or outstanding. All issued and outstanding shares of the capital stock of the Company are are, and all shares which may be issued pursuant to the Stock Plans will be, when issued, duly authorized, validly issued, fully paid and non-assessable, nonassessable and no class of capital stock of the Company is entitled not subject to preemptive rights. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no outstanding bonds, debentures, notes or other indebtedness or other securities of the Company or any Company Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders stockholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP may vote (“Voting Company Debt”)vote. Except as set forth above, as of the Measurement Datethere are no outstanding securities, there were no options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was of its Subsidiaries is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock voting securities of or other equity interest in, the Company or any of any Company Subsidiary its subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its subsidiaries to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At Other than with respect to indebtedness disclosed in the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units most recent balance sheet of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined included in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) SEC Documents, no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners indebtedness for borrowed money of the Company OP or holders its subsidiaries contains any restriction upon the incurrence of indebtedness for borrowed money by the Company OP Units other than as set forth on Section 3.02(a) or any of its subsidiaries or restricts the ability of the Company Disclosure Letter. Section 3.02(a) or any of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OPits subsidiaries to grant any Liens on its properties or assets. Other than the Company OP Units owned by the limited partners Stock Options and other than as disclosed in Section 3.3 of the Company OP set forth in Section 3.02(a) of the Company Disclosure LetterSchedule, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted sharesthere are no outstanding contractual obligations, restricted share unitscommitments, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock understandings or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, arrangements of the Company or any Company Subsidiaryof its subsidiaries to repurchase, (ii) voting trusts, proxies redeem or other similar agreements otherwise acquire or understandings to which the Company or make any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with payment in respect to the voting of any shares of capital stock of the Company or any Company Subsidiaryof its subsidiaries and (ii) to the knowledge of the Company, or (iii) contractual obligations or commitments of any character there are no irrevocable proxies with respect to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiarysubsidiary of the Company. Neither Section 3.3 of the Disclosure Schedule sets forth the record and, to the knowledge of the Company, beneficial ownership of, and voting power in respect of, the capital stock of the Company nor any Company Subsidiary has granted any preemptive rightsheld by the Company's directors, anti-dilutive rights officers and stockholders owning five percent or rights more of first refusal or similar rights with respect to any of its capital stock or other equity interests.
(c) the Company's outstanding common stock. Except as set forth in Section 3.02(c) of above, there are no agreements or arrangements pursuant to which the Company Disclosure Letter, all of the outstanding shares of capital stock is or other equity interests of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”) and free of any restriction on the right could be required to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the register shares of Company Common 7 14 Stock and any material dividends or other distributions on securities under the Securities Act of 1933, as amended (the "Securities Act"), or other agreements or arrangements with or among any security holders of the Company with respect to securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable)Company.
Appears in 1 contract
Sources: Restated Agreement and Plan of Merger (Syratech Corp)
Capital Structure. (a) The authorized capital stock of the Company Capital consists of 1,000,000,000 30,000,000 shares of the Company Capital Common Stock and 50,000,000 no shares of preferred stock, par value $0.01 .01 per share (the “Company "Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”"). At On the close of business on May 8, 2015 (the “Measurement Date”)date hereof, (a) 36,809,108 11,853,516 shares of Company Capital Common Stock (which includes 290,566 and no shares of Company Restricted Stock) Preferred Stock were issued and outstanding and outstanding, (b) no shares of Company Capital Common Stock or Preferred Stock were issued or outstanding. All issued held by Capital in its treasury and outstanding (c) 236,250 shares of Capital Common Stock were issuable upon exercise of outstanding Capital Options. On the capital stock date of the Company are duly authorizedthis Agreement, validly issued, fully paid and non-assessable, and no class of capital stock of the Company is entitled to preemptive rights. Except except as set forth above, at the close of business on the Measurement Dateabove in this Section 5.3, no shares of capital stock or other voting securities of the Company Capital were issued, reserved for issuance or outstanding. There are no outstanding stock appreciation rights relating to the capital stock of Capital. All outstanding shares of capital stock of Capital are duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary Capital having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders shareholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP Capital may vote (“Voting Company Debt”)vote. Except (i) for the Capital Options or (ii) as set forth aboveon Schedule 5.3, as of the Measurement Datedate of this Agreement there are no outstanding securities, there were no options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company Capital or any Company Capital Subsidiary was is a party or by which any of them was bound (i) such entity is bound, obligating the Company Capital or any Company Capital Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock stock, voting securities or other equity ownership interests in, of Capital or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or of any Company Capital Subsidiary or any Voting Company Debt or (ii) obligating the Company Capital or any Company Capital Subsidiary to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, undertaking (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than to Capital or a Capital Subsidiary). Except as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement DateSchedule 5.3, there were are no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company outstanding contractual obligations of Capital or any Company SubsidiaryCapital Subsidiary to repurchase, (ii) voting trusts, proxies redeem or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of otherwise acquire any shares of capital stock of the Company Capital or any Company Subsidiarycapital stock, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock voting securities or other equity interests.
(c) Except as set forth ownership interests in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding shares of capital stock or other equity interests of each Company Subsidiary are owned by the Company, by another Company any Capital Subsidiary or by make any material investment (in the Company and another Company Subsidiaryform of a loan, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of capital contribution or otherwise) in any kind or nature whatsoever person (collectively, “Liens”) and free of any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity interests other than transfer and other restrictions under applicable federal and state securities Laws.
(d) All dividends or other distributions on the shares of Company Common Stock and any material dividends or other distributions on any securities of any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payablea Capital Subsidiary).
Appears in 1 contract
Capital Structure. (a) The authorized capital stock of the Company ----------------- consists of as of the date hereof, and will consist of as of the Effective Time, 1,000,000,000 shares in the aggregate, comprised of the Company 990,000,000 shares of Common Stock and 50,000,000 10,000,000 shares of preferred stock, $0.0001 par value $0.01 per share (the “Company "Preferred Stock”, and, together with the Company Common Stock, the “Company Capital Stock”"). At The rights, privileges and preferences of Common Stock and Preferred Stock are as stated in the Company's Certificate of Incorporation, as amended to date. As of the close of business on May 8August 2, 2015 (the “Measurement Date”)2001, (ai) 36,809,108 136,845,272 shares of Company Common Stock (which includes 290,566 and no shares of Company Restricted Stock) Preferred Stock were issued and outstanding and outstanding, (bii) no shares of Company Preferred Common Stock were issued held by the Company in its treasury, and (iii) 7,981,765 shares of Common Stock were reserved for issuance pursuant to, or outstandingupon exercise of, the Stock Awards (as hereinafter defined), including Stock Awards reserved for issuance pursuant to the Company's restricted stock program. All issued and outstanding shares of Common Stock, and all shares which may be issued upon the capital stock exercise of the Company are Stock Awards will be, duly authorized, validly issued, fully paid and non-assessablenonassessable, and no class are not subject to and were not issued in violation of capital stock of the Company is entitled to any preemptive rights. Except as set forth abovein Section 3.1(c) of the Company Disclosure Schedule, at to the close knowledge of business on the Measurement DateCompany, there are no voting trusts, voting agreements, irrevocable proxies or other agreements with respect to any voting shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstandingCompany. There are no bonds, debentures, notes or other indebtedness of the Company or any Company Subsidiary of its subsidiaries having the right to vote (or convertible into, into or exchangeable for, for other securities having the right to vote) on any matters on which holders the stockholders of the Company Common Stock, the Company OP Units or the general partnership interests in the Company OP any subsidiary may vote (“Voting Company Debt”)vote. Except as set forth aboveabove or on Section 3.1(c) of the Company Disclosure Schedule, as of the Measurement Datedate of this Agreement, there were are no outstanding securities, options, warrants, calls, rights, convertible or exchangeable securities, commitments, agreements, arrangements or undertakings of any kind to which the Company or any Company Subsidiary was of its subsidiaries is a party or by which any of them was is bound (i) obligating the Company or any Company Subsidiary of its subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock voting securities of or other equity interest in, the Company or of any Company Subsidiary of its subsidiaries or any Voting Company Debt or (ii) obligating the Company or any Company Subsidiary of its subsidiaries to issue, grant, extend or enter into any such security, option, warrant, securitycall, commitment right, commitment, agreement, arrangement or undertaking. At the close of business on the Measurement Date, (a) Company OP GP, as sole general partner of Company OP, owned the entire general partnership interest in Company OP; (b) 39,152,608 Company OP Units were issued and outstanding (c) no preferred units of the Company OP were issued and outstanding; (d) no Class B Contingent Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; (e) no LTIP Units (as defined in the Company OP Limited Partnership Agreement) were issued and outstanding; and (f) no other partnership interests were issued and outstanding or issuable. There are no partners of the Company OP or holders of Company OP Units other than as set forth on Section 3.02(a) of the Company Disclosure Letter. Section 3.02(a) of the Company Disclosure Letter sets forth the number of partnership units held by each partner in the Company OP. Other than the Company OP Units owned by the limited partners of the Company OP set forth in Section 3.02(a) of the Company Disclosure Letter, the Company directly owns all of the issued and outstanding Company OP Units of the Company OP, free and clear of any Liens, and all Company OP Units have been duly authorized and validly issued and are free of preemptive rights. The Company OP GP is the sole general partner of the Company OP and owns the general partnership interest free and clear of any Liens.
(b) Except as set forth above, as of the close of business on the Measurement Date, there were no (i) restricted shares, restricted share units, stock appreciation rights, performance shares, performance share units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any Company Subsidiary, (ii) voting trusts, proxies or other similar agreements or understandings to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound with respect to the voting of any shares of capital stock contractual obligations of the Company or any Company Subsidiary, or (iii) contractual obligations or commitments of any character to which the Company or any Company Subsidiary was a party or by which the Company or any Company Subsidiary was bound restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any of its capital stock subsidiaries to repurchase, redeem or other equity interests.
(c) Except as set forth in Section 3.02(c) of the Company Disclosure Letter, all of the outstanding otherwise acquire any shares of capital stock or other equity interests securities (or options to acquire any such shares or equity securities) of each Company Subsidiary are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiaryor any of its subsidiaries. There are no agreements, free and clear of all pledges, liens, charges, mortgages, encumbrances and security interests of arrangements or commitments (contingent or otherwise) pursuant to which any kind person is or nature whatsoever (collectively, “Liens”) and free of may be entitled to receive any restriction payment based on the right to voterevenues, sell earnings or otherwise dispose financial performance of such capital stock the Company or other equity interests any of its subsidiaries or assets or calculated in accordance therewith (other than transfer and other restrictions ordinary course payments or commissions to sales representatives of the Company based upon revenues generated by them without augmentation as a result of the transactions contemplated hereby) or to cause the Company or any of its subsidiaries to file a registration statement under applicable federal and state securities Laws.
the Securities Act of 1933, as amended (d) All dividends the "Securities Act"), or other distributions on which otherwise relate to the shares registration of Company Common Stock and any material dividends or other distributions on any securities of the Company or any Company Subsidiary which have been authorized and declared prior to the date hereof have been paid in full (except to the extent such dividends have been publicly announced and are not yet due and payable)of its subsidiaries.
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Sources: Merger Agreement (Buy Com Inc)