Capital Structure. (a) As of the date of this Agreement, the authorized capital stock of the Company consists of (i) 8,000,000 shares of Company Common Stock and (ii) 75,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6, 2020 (the “Measurement Date”): (A) 4,305,119 shares of Company Common Stock were issued and outstanding, and (B) no shares of Company Preferred Stock were issued and outstanding; (b) As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards. (c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock. (d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter. (e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 4 contracts
Sources: Merger Agreement (Bonanza Creek Energy, Inc.), Transaction Support Agreement (HighPoint Resources Corp), Transaction Support Agreement (Bonanza Creek Energy, Inc.)
Capital Structure. (ai) As of the date of this Agreement, the The authorized capital stock of the Company consists of (iA) 8,000,000 shares of Company Common Stock and 8,330,000,000 Shares, (iiB) 75,000,000 750,000,000 shares of preferred stock, par value $0.001 0.10 per share (the “Company Preferred Stock” and, together with the Company ”) and (C) 600,000,000 shares of Series Common Stock, par value $0.01 per share (the “Company Capital Series Common Stock”). At As of the close of business on November 6September 30, 2020 (the “Measurement Date”): (A) 4,305,119 2016, 772,769,527 shares of Company Common Stock were issued and outstanding, outstanding and (B) no other shares of Company Common Stock or shares of the Preferred Stock or Series Common Stock were issued and outstanding;outstanding on such date. All of the outstanding Shares have been duly authorized and validly issued and are fully paid and nonassessable. As of September 30, 2016, there were an aggregate of 52,741,311 Shares reserved for, and 33,437,890 Shares subject to, issuance pursuant to the Company Plans identified in Section 5.1(b)(i)(A) of the Company Disclosure Letter as being the only Company Plans pursuant to which Shares may be issued (the “Company Stock Plans”). Except as provided in the preceding sentence and except for Shares that after the date hereof become reserved for issuance or subject to issuance as permitted under this Agreement, the Company has no Shares reserved for, or subject to, issuance. The Company has no shares of Preferred Stock, shares of Series Common Stock or other shares of capital stock reserved for or subject to issuance (it being understood that “other shares of capital stock” shall not include Shares). Section 5.1(b)(i)(B) of the Company Disclosure Letter contains a correct and complete list as of September 30, 2016 of (x) the number of Shares subject to outstanding Company Options under the Company Stock Plans, (y) the number of Shares subject to outstanding Company Restricted Stock Units under the Company Stock Plans and (z) the number of Shares subject to outstanding Company Performance Stock Units (assuming the achievement of performance criteria at maximum levels) under the Company Stock Plans.
(bii) As From September 30, 2016 to the execution of this Agreement, the Company has not issued any Shares except pursuant to the exercise of Company Options or the settlement of Company Restricted Stock Units outstanding as of September 30, 2016, in accordance with their terms and, since September 30, 2016, except as permitted by this Agreement for the period following the date of this Agreement, the Company has not issued any Company Options, Company Restricted Stock Units or Company Performance Stock Units. Upon any issuance of any Shares in accordance with the terms of the Company Stock Plans, such Shares will be duly authorized, validly issued and fully paid and nonassessable and free and clear of any lien, charge, pledge, security interest, claim or other encumbrance (each, a “Lien”). Each of the outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries has been duly authorized and validly issued and is fully paid and nonassessable and owned by the Company or by a direct or indirect wholly owned Subsidiary of the Company, free and clear of any Lien (other than any Liens for Taxes not yet due and payable or that are being contested in good faith by appropriate proceedings and as to which appropriate reserves have been recorded in the Company’s financial statements). Except as set forth in Section 5.1(b)(i), as of the date of this Agreement, there are 58,775 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 Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable capital stock or other equity or voting securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close Company or any of business on the Measurement Dateits Subsidiaries or any securities or obligations convertible or exchangeable into or exercisable for, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights giving any Person a right to subscribe for, purchase for or acquire from the Company or any of its Subsidiaries any capital stock of the Company equity or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2) no securities of the Company or any Subsidiary of its Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued or outstanding. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company convertible into or exchangeable or exercisable for shares on any matter.
(iii) Section 5.1(b)(iii) of the Company Capital StockDisclosure Letter sets forth, Voting Debt or other voting securities as of the date of this Agreement, (A) each of the Company; ’s Subsidiaries and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary ownership interest of the Company is a party or by which it is bound in each such Subsidiary and (B) 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to Person in which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of may hold capital stock or other equity interest that has a book value in excess of $10,000,000 (other than securities held by any employee benefit plan of the Company or any of its SubsidiariesSubsidiaries or any trustee, agent or other fiduciary in such capacity under any such employee benefit plan). No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) Shares. As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture ordoes not own, directly or indirectly, equity securities or other similar equity interests any voting interest in any Person or that is reasonably likely to require an additional filing by Parent under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (iithe “HSR Act”), in connection with the Mergers.
(iv) obligations, whether contingent or otherwise, to consummate any Each Company Option (A) was granted in compliance in all material additional investment in any Person other than its Subsidiaries respects with all applicable Laws and its joint ventures listed on Schedule 4.2 all of the terms and conditions of the Company Disclosure Letter.
Stock Plans pursuant to which it was issued, (eB) Except has an exercise price per Share equal to or greater than the fair market value of a Share on the date of such grant, (C) has a grant date identical to the date on which the Company’s Board of Directors or the Compensation Committee (including through delegation) actually awarded such Company Option or on a date thereafter as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned specified by the Company’s Board of Directors or the Compensation Committee (including through delegation) in their respective authorization of such Company Options, directly or indirectly(D) qualifies in all material respects for the Tax and accounting treatment afforded to such Company Option in the Company’s Tax Returns and the Company Reports, respectively, and (E) complies in all such shares or equity ownership interests are set forth in Schedule 4.2 material respects with Section 409A of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightsCode.
Appears in 4 contracts
Sources: Merger Agreement, Merger Agreement, Merger Agreement (At&t Inc.)
Capital Structure. (ai) As of the date of this Agreement, the The authorized capital stock of the Company consists of (iA) 8,000,000 shares of Company 240,000,000 Class A Shares, (B) 60,000,000 Common Stock Voting Shares and (iiC) 75,000,000 shares of 25,000,000 preferred stockshares, par value $0.001 0.01 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital StockPreferred Shares”). At As of the close of business on November 6July 27, 2020 2017, 95,956,398 Class A Shares and 33,850,481 Common Voting Shares were issued and outstanding and no Preferred Shares were issued and outstanding on such date. All of the outstanding Shares have been duly authorized and validly issued and are fully paid and nonassessable, and have been issued in compliance with all applicable securities Laws. Section 5.1(b)(i)(A) of the Company Disclosure Letter identifies each Company Plan pursuant to which Shares may be issued (the “Measurement DateCompany Stock Plans”): (A) 4,305,119 ), which, for avoidance of doubt, are the only Company Plans pursuant to which Shares may be issued, together with the aggregate number of Class A Shares reserved for issuance under each such Company Stock Plan and the aggregate number of such Class A Shares that are subject to outstanding awards granted under each such Company Stock Plan. Except as provided in the preceding sentence and except for Shares that after the date hereof become reserved for issuance or subject to issuance as permitted under this Agreement, the Company has no Shares reserved for, or subject to, issuance. The Company has no Preferred Shares or other shares of capital stock reserved for or subject to issuance (it being understood that “other shares of capital stock” shall not include Shares). Section 5.1(b)(i)(B) of the Company Common Disclosure Letter contains a correct and complete list as of July 27, 2017 of (x) the aggregate number and kind of Shares reserved for issuance pursuant to outstanding unexercised Company Options under the Company Stock were Plans, including the applicable grant dates, exercise prices and expiration dates for such Company Stock Options, the number of Shares subject to outstanding Company Restricted Stock Units under the Company Stock Plans, including the applicable grant and vesting schedule for such Company Restricted Stock Units, and the aggregate number and kind of Shares subject to issuance pursuant to outstanding Company Performance Stock Units (assuming the achievement of performance criteria at both target and maximum levels) under the Company Stock Plans, including the applicable grant dates and performance criteria for such Company Performance Stock Units. The Company has delivered or made available to Parent or Parent’s Representatives copies of all Company Stock Plans, the forms of all stock option agreements evidencing Company Options, the forms of all agreements evidencing the Company Restricted Stock Units, Company Performance Stock Units and Phantom Units. No Subsidiary of the Company holds shares of capital stock of the Company. The Class A Shares constitute the only outstanding class of securities of the Company or its Subsidiaries registered under the Securities Act.
(ii) From the close of business on July 27, 2017 to the execution of this Agreement, the Company has not issued any Shares except pursuant to the exercise of Company Options or the settlement of Company Restricted Stock Units or Company Performance Stock Units outstanding as of July 27, 2017, in accordance with their terms and, since the close of business on July 27, 2017, except as expressly permitted by this Agreement for the period following the date of this Agreement, the Company has not issued any Company Options, Phantom Units, Company Restricted Stock Units or Company Performance Stock Units. Upon any issuance of any Shares in accordance with the terms of the Company Stock Plans, such Shares will be duly authorized, validly issued and outstandingfully paid and nonassessable and free and clear of any lien, charge, pledge, security interest, claim or other encumbrance (each, a “Lien”). Each of the outstanding shares of capital stock or other securities of each of the Company’s Subsidiaries has been duly authorized and validly issued and is fully paid and nonassessable, and has been issued in compliance with all applicable securities Laws, and owned by the Company or by a direct or indirect wholly owned Subsidiary of the Company, free and clear of any Lien (B) no shares of Company Preferred Stock were issued other than any Liens, except for Permitted Liens, for Taxes not yet due and outstanding;
(b) As payable or that are being contested in good faith by appropriate proceedings and as to which appropriate reserves have been recorded in the Company’s financial statements). Except as set forth in Section 5.1(b)(i), as of the date of this Agreement, there are 58,775 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 Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable capital stock or other equity or voting securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close Company or any of business on the Measurement Dateits Subsidiaries or any securities or obligations convertible or exchangeable into or exercisable for, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights giving any Person a right to subscribe for, purchase for or acquire from the Company or any of its Subsidiaries any equity or voting securities of the Company or any of its Subsidiaries, or giving any Person the right to receive any economic benefit or right similar to or derived from the economic benefits and rights accruing to holders of capital stock of the Company or any of its Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued or outstanding. The Company does not, and its Subsidiaries do not, have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exchangeable or exercisable for securities having the right to vote) with the shareholders of the Company or its Subsidiaries on any matter. As of the date of this Agreement, there are no outstanding contractual obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests any of the Subsidiaries of the Company Company. There are owned by the Companyno proxies, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants voting trusts or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt agreements 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements understandings to which the Company or any Subsidiary of the Subsidiaries of the Company is a party or by which it is bound in any case obligating with respect to the voting or registration of the capital stock of, or other equity interests in, the Company or any Subsidiary of its Subsidiaries.
(iii) Section 5.1(b)(iii) of the Company to issueDisclosure Letter sets forth, deliveras of the date of this Agreement, 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 other voting securities (A) each of the Company’s Subsidiaries, its jurisdiction of incorporation or obligating organization and the Company or any Subsidiary ownership interest of the Company to grant, extend or enter into in each such Subsidiary and (B) any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to Person in which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of may hold capital stock or other equity interest that has a book value in excess of $10,000,000 (other than securities held by any employee benefit plan of the Company or any of its SubsidiariesSubsidiaries or any trustee, agent or other fiduciary in such capacity under any such employee benefit plan). No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital StockShares.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 4 contracts
Sources: Voting Agreement (Newhouse Broadcasting Corp), Merger Agreement (Scripps Networks Interactive, Inc.), Voting Agreement (Discovery Communications, Inc.)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 shares of Company Common Stock 50,000,000 Class A Shares, 10,000,000 Class B Shares and (ii) 75,000,000 10,000,000 shares of preferred stock, par value $0.001 0.01 per share (“Company the "Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”Shares"). At the close As of business on November 6December 31, 2020 1997, (the “Measurement Date”): (Ai) 4,305,119 shares of Company Common Stock 3,490,835 Class A Shares were issued and outstanding, (ii) 5,892,756 Class B Shares were issued and outstanding, (iii) no Shares were held by the Company or by any of the Company's subsidiaries, (iv) 10,500 Class A Shares were reserved for issuance pursuant to the outstanding Company Options, (v) 629,150 Class B Shares were reserved for issuance pursuant to the outstanding Company Options, (vi) 300,000 Class A Shares and no Class B Shares were reserved for issuance pursuant to the ESPP, and (Bvii) no shares of Company Preferred Stock were issued and outstanding;
(b) As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rightsreserved for issuance or outstanding. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except Except as set forth in this Section 4.2 and in the Transaction Support Agreementabove or on Schedule 4.3, there are no outstanding options, warrants shares of capital stock or other rights to subscribe for, purchase equity or acquire from the Company or any of its Subsidiaries any capital stock voting securities of the Company are issued, reserved for issuance or securities convertible into or exchangeable or exercisable outstanding, except for capital stock Shares referred to in clauses (iv) and (v) above which may be issued upon exercise of the outstanding Company (and the exercise, conversion, purchase, exchange or other similar price thereof)Options. All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrancesare, and have been all Shares which may be issued pursuant to the Option Plans will, when issued, be duly authorized, validly issued, fully paid and nonassessablenonassessable and not subject to preemptive rights. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii)on Schedule 4.3, there are outstanding: (1) no shares of Company Capital Stocknot any bonds, Voting Debt debentures, notes or other voting securities of the Company; (2) no indebtedness or securities of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any Subsidiary matters on which shareholders of the Company convertible into may vote. Other than the Shares, Company Options, Option Plans and the ESPP, or exchangeable or exercisable for shares of Company Capital Stockas set forth on Schedule 4.3, Voting Debt or other voting securities of the Company; and (3) no there are not any securities, options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments commitments, agreements, arrangements or agreements undertakings of any kind to which the Company or any Subsidiary of the Company its subsidiaries is a party or by which it any of them is bound in any case obligating the Company or any Subsidiary of the Company its subsidiaries to issue, deliver, deliver or sell, purchase, redeem or acquire, or cause to be issued, delivered, delivered or sold, purchased, redeemed or acquired, additional shares of Company Capital Stock or any Voting Debt capital stock or other equity or voting securities of the Company, Company or of any of its subsidiaries or obligating the Company or any Subsidiary of the Company its subsidiaries to issue, grant, extend or enter into any such security, option, warrant, subscription, call, right, commitment commitment, agreement, arrangement or agreementundertaking. Other than the Transaction Support AgreementThere are no outstanding rights, there are not any stockholder commitments, agreements, voting trusts arrangements or other agreements to which undertakings of any kind obligating the Company or any of its Subsidiaries is a party subsidiaries to repurchase, redeem or by which it is bound relating to the voting otherwise acquire or dispose of any shares of capital stock or other equity interest or voting securities of the Company or any of its Subsidiaries. No Subsidiary subsidiaries or any securities of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stocktype described in the two immediately preceding sentences.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 4 contracts
Sources: Merger Agreement (Prosource Inc), Merger Agreement (Nebco Evans Holding Co), Merger Agreement (Onex Corp)
Capital Structure. (ai) As of the date of this Agreement, the The authorized capital stock of the Company consists solely of (i) 8,000,000 30,000,000 shares of Company Common Stock and (ii) 75,000,000 10,000,000 shares of preferred stock, par value $0.001 .01 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”"PREFERRED STOCK"). At the close As of business on November 6June 9, 2020 (the “Measurement Date”): (A) 4,305,119 1998, 14,766,575 shares of Company Common Stock were issued and outstanding, and (B) no shares of Company Preferred Stock were issued and outstanding;
(b) As , no shares of capital stock were held in the treasury of the date of this Agreement, there are 58,775 Company and 2,510,021 shares of Company Common Stock subject were reserved for issuance pursuant to outstanding the Company Stock Awards Benefit Plans and 12,182 Warrants of the Company. Since such date, there have been no issuances of shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or any other securities convertible into of the Company other than issuances of shares pursuant to options or exchangeable or exercisable for rights outstanding as of such date under the Company Benefit Plans. All issued and outstanding shares of the capital stock of the Company (are and all shares reserved for issuance will be, when issued in accordance with the exerciseterms specified in the commitments or agreements pursuant to which they are issuable, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and no class of capital stock is entitled to preemptive rights. As of June 9, 1998 except for changes since (i) options representing in the Measurement Date resulting from aggregate the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no right to purchase 1,375,414 shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2) no securities of Common Stock under the Company or any Subsidiary of the Company convertible into or exchangeable or Benefit Plans and (ii) 809,014 Warrants validly issued and currently exercisable for 809,014 shares of Company Capital StockCommon Stock in the aggregate, Voting Debt or other voting securities of there were no, and at the Company; and Effective Time (3except pursuant to this Agreement) no there will not be any, outstanding securities, options, subscriptions, warrants, subscriptions, calls, rights (including preemptive and appreciation "phantom" stock rights), commitments preemptive rights or agreements to which the Company other contracts, commitments, understandings or arrangements, including any Subsidiary right of the Company is a party conversion or by which it is bound in exchange under any case outstanding security, instrument or agreement (together, "OPTIONS") obligating the Company or any Subsidiary of the Company its Subsidiaries to issue, deliver, sell, purchase, redeem deliver or acquire, sell or cause to be issued, delivered, sold, purchased, redeemed delivered or acquired, additional sold any shares of Company Capital Stock or any Voting Debt or other voting securities capital stock of the Company, or obligating the Company or any Subsidiary of the Company to issue, grant, extend or enter into any such optionOption with respect thereto or to repurchase, warrant, subscription, call, right, commitment redeem or agreement. Other than the Transaction Support Agreement, there are not otherwise acquire any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares share of capital stock or other equity interest of the Company or any of its SubsidiariesCompany. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.The
Appears in 4 contracts
Sources: Agreement and Plan of Merger (Armstrong World Industries Inc), Merger Agreement (Armstrong World Industries Inc), Merger Agreement (Triangle Pacific Corp)
Capital Structure. (ai) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 10,000,000,000 shares of Company Common Stock Stock, of which, as of January 31, 2004, 2,719,301,543 shares are outstanding, and (ii) 75,000,000 1,000,000,000 shares of preferred stockPreferred Stock, par value $0.001 .01 per share (“Company Preferred Stock” andshare, together with the Company Common Stockof which, the “Company Capital Stock”). At the close of business on November 6, 2020 (the “Measurement Date”): (A) 4,305,119 shares of Company Common Stock were issued and outstanding, and (B) no shares of Company Preferred Stock were issued and outstanding;
(b) As as of the date of this Agreement, there are 58,775 207,537 shares of Company Common Series C Preferred Stock subject to outstanding Company Stock Awards and 12,182 25,428 shares of Company Common Series E Preferred Stock subject to are outstanding. All of the outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock Shares have been duly authorized and are validly issued, fully paid and non-assessable nonassessable. The Company has no Shares reserved for issuance, except that, as of January 31, 2004, there were 230,079,174 shares issuable pursuant to outstanding awards under the Company's Amended and are not subject to preemptive rights. All outstanding Restated Long Term Incentive Plan and the Company Adjustment Plan (the "Stock Plans"), 41,748,273 shares of Company Common Stock have been issued reserved for issuance pursuant to the DoCoMo Warrant Agreement and granted 50,000,000 shares of Series A Preferred Stock reserved for issuance pursuant to the Amended and Restated Rights Agreement, dated as of September 1, 2002, between the Company and Mellon Investor Services LLC, as Rights Agent, as amended as described in compliance in all material respects with this Agreement (i) applicable securities Laws the "Rights Agreement"). A true and other applicable Law and (ii) all requirements set forth in applicable Contracts. As complete copy of the close Rights Agreement as in effect as of business on the Measurement Date, except as set forth in date of this Agreement has been made available to Cingular. Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock 5.1(b) of the Company or securities convertible into or exchangeable or exercisable for capital stock Disclosure Letter contains a true and complete list as of January 31, 2004 of (I) the number of outstanding options to purchase shares of Common Stock which the Company is obligated to honor, whether through the issuance of shares of Common Stock or otherwise, including those issued under the Stock Plans (each, a "Company Option"), the exercise price of all Company Options and number of shares of Common Stock issuable at such exercise price and (II) the exercisenumber of outstanding rights, conversionincluding those issued under the Stock Plans, purchaseto receive, exchange or other similar price thereofright the value of which is determined by reference to, shares of Common Stock, the date of grant and number of shares of Common Stock subject thereto (including without limitation restricted stock units) (each a "Common Stock Unit"). All outstanding From January 31, 2004 to the date hereof the Company has not issued any shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and Common Stock except for changes since the Measurement Date resulting from pursuant to the exercise of stock options Company Options and the settlement of Common Stock Units outstanding at such dateon January 31, or stock grants or other awards granted 2004 in accordance with Section 6.1(b)(ii)their terms. From January 31, there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of 2004 through the date of this Agreement, neither the Company nor any of its Subsidiaries has have granted or issued any (i) interests in a material joint venture or, directly Company Options or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries Common Stock Units. All grants of Common Stock Units and its joint ventures listed on Schedule 4.2 restricted shares were made under the Stock Plans. Each of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests securities of each of the Company's Subsidiaries is duly authorized, validly issued, fully paid and nonassessable and owned by the Company or by a direct or indirect wholly-owned Subsidiary of the Company, free and clear of any Lien. As of December 31, 2003, the aggregate Liquidation Preference for the Series C Preferred Stock and Series E Preferred Stock is $291 million and such Liquidation Preference may vary from time to time only in accordance with the certificate of incorporation of the Company in effect on the date of this Agreement. Except as set forth above and pursuant to the Rights Agreement and the Amended and Restated Investor Agreement, dated as of December 20, 2000, and amended as of December 26, 2002, between Former Parent, the Company and DoCoMo (the "DoCoMo Investor Agreement") and the DoCoMo Warrant Agreement, 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 securities 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 securities of the Company or any of its Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued or outstanding. The Company has made available to Cingular prior to the date of this Agreement true and complete copies of the Rights Agreement, the DoCoMo Investor Agreement and the DoCoMo Warrant Agreement, each as amended.
(ii) Section 5.1(b) of the Company Disclosure Letter sets forth the name of each Person (other than direct and indirect wholly-owned by Subsidiaries) in which the Company or any of its Subsidiaries owns 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 or other business as of the date of this Agreement (in each case other than any such interests that had a carrying value of less than $5 million on the Company's consolidated balance sheet as of September 30, 2003), that Person's jurisdiction of incorporation or organization and the percentage of and kind of interest owned.
(iii) Other than the rights of DoCoMo pursuant to Section 4.3 of the DoCoMo Investor Agreement, and the rights of DoCoMo pursuant to the DoCoMo Warrant Agreement, there are no outstanding contractual obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any capital stock (or options (other than options issued pursuant to Company Compensation and Benefits Plans listed on Section 5.1(h)(i) of the Company Disclosure Letter) to acquire any such capital stock) or other security or equity interest of the Company or its Subsidiaries. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter. Section 5.1(b) of the Company Disclosure Letter contains a true and complete list of each Person (other than Subsidiaries of the Company) in which the Company owns, directly or indirectly, all such shares any voting interest that may require the filing of a report or equity ownership interests are set forth in Schedule 4.2 notification form by Cingular or any Affiliate of Cingular under the Company Disclosure LetterHart-Scott-Rodino Antitrust Improvements Act of 1976, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightsas amended (the "▇▇▇ ▇▇▇").
Appears in 4 contracts
Sources: Merger Agreement (At&t Wireless Services Inc), Agreement and Plan of Merger (Cingular Wireless LLC), Agreement and Plan of Merger (Cingular Wireless LLC)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 50,000,000 shares of Company Common Stock and (ii) 75,000,000 10,000,000 shares of preferred stock, par value $0.001 0.01 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”)share. At the close of business on November 6January 31, 2020 1998, (the “Measurement Date”): (Ai) 4,305,119 11,293,394 shares of Company Common Stock and no shares of preferred stock of the Company were issued and outstanding, and (Bii) no shares of Company Preferred Common Stock were issued held by the Company in its treasury, (iii) 1,072,012 shares of Common Stock were reserved for issuance pursuant to outstanding stock options granted under the 1995 Stock Option Plan to purchase shares of Common Stock ("Employee Stock Options") and outstanding;
an additional 96,158 shares of Common Stock were available for the grant of Employee Stock Options pursuant to such plan (band upon approval by the Company's stockholders of a pending proposal there will be 600,000 additional shares of Common Stock as to which options can be granted under the 1995 Stock Option Plan), (iv) As no shares of Common Stock were reserved for issuance pursuant to outstanding stock options granted under the Directors Stock Option Plan to purchase shares of Common Stock ("Director Stock Options") and an additional 62,500 shares of Common Stock were available for the grant of Director Stock Options pursuant to such plan, (v) 391,500 shares of Common Stock were reserved for issuance pursuant to the Company's convertible note with UUNET Technologies, Inc., and (vi) 887,647 shares of Common Stock were reserved for issuance upon the exercise of outstanding warrants. Except as set forth above or as otherwise expressly provided herein, at the close of business on January 31, 1998, no shares of capital stock or other voting securities of the date of this AgreementCompany were issued, reserved for issuance or outstanding and except as set forth on Schedule 3.01(c), there are 58,775 shares not any phantom stock or other contractual rights the value of which is determined in whole or in part by the value of any capital stock of the Company ("Stock Equivalents"). There are no outstanding stock appreciation rights ("SARs") with respect to Common Stock subject that were not granted in tandem with a related Employee Stock Option. When issued and sold to outstanding Company Sprint, the Convertible Preferred Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been the Convertible Notes will be duly authorized and are authorized, validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all EncumbrancesLiens. The Newco Common Stock issued upon conversion of the Convertible Preferred Stock and the Convertible Notes, other than Permitted Encumbrances, and have been will be duly authorized, validly issued, fully paid and nonassessablenonassessable and free and clear of all Liens. Other than this Agreement and the Ancillary Agreements, the Convertible Preferred Stock and the Convertible Notes are not, and the Newco Common Stock issuable upon conversion of the Convertible Preferred Stock and the Convertible Notes will not be, subject to any voting trust agreement or other contract, agreement, arrangement, commitment or understanding, including any such agreement, arrangement, commitment or understanding restricting or otherwise relating to the voting or disposition of the Convertible Preferred Stock or the Convertible Notes. All outstanding shares of capital stock of the Company are, and all shares that may be issued pursuant to any stock plans and the other agreements and instruments listed above will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights. Except as set forth above and in Schedule 3.01(c), and as otherwise expressly set forth in this Section 4.2Agreement, and except for changes since the Measurement Date January 31, 1998 resulting from the grant or exercise of stock options outstanding at such dateEmployee Stock Options, Director Stock Options, or stock grants or other awards granted warrants and the conversion of notes described in accordance with Section 6.1(b)(ii)clauses (v) and (vi) above, there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities as of the Company; (2) no securities date of the Company or any Subsidiary of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support this Agreement, there are not any stockholder securities, options, warrants, calls, rights to purchase, rights of first refusal, securities convertible into or exchangeable for voting securities, commitments, agreements, voting trusts arrangements or other agreements undertakings of any kind to which the Company or any of its Subsidiaries is a party or by which it any of them is bound relating obligating the Company to the voting of any issue, deliver or sell or create, or cause to be issued, delivered or sold or created, additional shares of capital stock or other equity interest voting securities or Stock Equivalents of the Company or any of its Subsidiaries. No Subsidiary of obligating the Company owns to issue, grant, extend or enter into any shares of Company Common Stock such security, option, warrant, call, right, commitment, agreement, arrangement or any other shares of Company Capital Stock.
undertaking (d) collectively referred to as "Dilutable Securities"). As of the date of this Agreement, neither the Company nor there are not any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 outstanding contractual obligations of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letterto repurchase, all of the issued and outstanding redeem or otherwise acquire any shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightsexcept pursuant to existing employee arrangements.
Appears in 3 contracts
Sources: Investment Agreement (Azeez Sidney), Investment Agreement (Earthlink Network Inc), Investment Agreement (Sprint Corp)
Capital Structure. (a) As of the date of this AgreementCapitalization Date, the authorized capital stock of the Company consists of 200,000,000 Shares and 10,000,000 shares of Company Preferred Stock. As of the Capitalization Date (i) 8,000,000 shares of 116,619,149 Shares were issued and outstanding (including 30,590 Company Common Stock and Restricted Shares), (ii) 75,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6, 2020 (the “Measurement Date”): (A) 4,305,119 shares of Company Common Stock 41,587,480 Shares were issued and outstandingheld by the Company in its treasury, and (Biii) no shares of Company Preferred Stock were issued and outstanding;, (iv) 32,971,625 Shares were reserved for issuance, (v) no shares of Company Preferred Stock were reserved for issuance, (vi) 1,634,533 Shares were subject to outstanding Company RSUs and (vii) 739,564 Shares were subject to outstanding Company PSUs (assuming the achievement of the applicable performance goals at the target level).
(b) As Since the Capitalization Date and through the date of this Agreement, (i) no Shares or shares of Company Preferred Stock have been repurchased or redeemed or issued (other than with respect to the vesting or settlement of Company Equity Awards outstanding prior to the date of this Agreement and pursuant to the terms of the applicable Company Benefit Plan in effect on or prior to the date of this Agreement), and (ii) no Shares have been reserved for issuance and no Company Equity Awards have been granted, except pursuant to the terms of the applicable Company Benefit Plan in effect on the date of this Agreement or as otherwise expressly permitted by this Agreement.
(c) Section 3.2(c) of the Company Disclosure Schedule sets forth, as of the date of this Agreement, there are 58,775 shares an accurate and complete list of each Subsidiary of the Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects together with (i) applicable securities Laws and other applicable Law and the jurisdiction of incorporation or organization of such Subsidiary, (ii) all requirements set forth in applicable Contracts. As the type and percentage of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned ownership interest held by the Company, or a direct or indirect wholly owned Subsidiary one of its Subsidiaries, in such Subsidiary, and (iii) to the Companyextent applicable, are free the type of and clear percentage of all Encumbrances, interest held by any Person (and the name of such other Person) other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries, in such Subsidiary. No Subsidiary of the The Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 Subsidiaries, together with the Persons set forth in Section 3.2(c) of the Company Disclosure Letter.
Schedule pursuant to clause (eiii) Except as set forth in Schedule 4.2 of the Company Disclosure Letterpreceding sentence, beneficially own all of the issued and outstanding shares of capital stock of, or other equity ownership interests of in, each Subsidiary of the Company, and all such outstanding shares of capital stock or other equity securities are duly authorized, validly issued, fully paid and non-assessable (to the extent such concepts are applicable) free and clear of any Encumbrance other than Encumbrances of the type described in clauses (m), (o)(ii) or (p) of the definition of Permitted Encumbrances. As of the date of this Agreement neither the Company are owned by nor any of its Subsidiaries beneficially own any equity securities in any Person that is not a Subsidiary of the Company.
(d) Neither the Company nor any of its Subsidiaries have any outstanding bonds, directly debentures, notes or indirectlyother obligations the holders of which have the right to vote (or convert into or exercise for securities having the right to vote) with the equityholders of the Company or any of its Subsidiaries on any matter, all other than the Company Exchangeable Notes to the extent they convert into Company Common Stock.
(e) Except pursuant to the terms of the Company Exchangeable Notes or the rights under the ESPP (a true, correct and complete copy of which has been made available to Parent), there are no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, Contracts, arrangements, calls, commitments or rights of any kind that obligate the Company or any of its Subsidiaries to issue or to sell any securities of the Company or any of its Subsidiaries or any securities or obligations convertible or exchangeable into or exercisable for, valued by reference to, or giving any Person a right to subscribe for or acquire, any securities of the Company or any of its Subsidiaries, and no securities or obligations evidencing such shares rights are authorized, issued or equity ownership interests are set forth in Schedule 4.2 outstanding. Neither the Company nor any of its Subsidiaries is a party to any voting agreement with respect to the voting of any of the foregoing securities.
(f) Section 3.2(f) of the Company Disclosure LetterSchedule sets forth an accurate and complete listing of all outstanding Company Equity Awards as of June 26, 2024, setting forth the number of Shares subject to each Company Equity Award, the holder identification number, grant date and all vesting schedule (including any acceleration terms) and whether the Company Equity Award is a Specified Award as of such shares or equity ownership interests are duly authorized and validly issued and are fully paidJune 26, nonassessable and free of preemptive rights2024.
Appears in 3 contracts
Sources: Merger Agreement (Boeing Co), Merger Agreement (Spirit AeroSystems Holdings, Inc.), Merger Agreement (Boeing Co)
Capital Structure. (ai) As of March 22, 2018 (the date of this Agreement“Measurement Date”), the authorized capital stock of the Company consists consisted of 105,000,000 Shares, of which 63,221,610 Shares (i) 8,000,000 including 663,156 shares of Company Common Stock restricted stock), and (ii) 75,000,000 1,000,000 shares of preferred stockPreferred Stock, having a par value of $0.001 0.01 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital StockPreferred Shares”). At , of which no shares were outstanding as of the close of business on November 6, 2020 (the “Measurement Date”): (A) 4,305,119 shares of Company Common Stock were issued and outstanding, and (B) no shares of Company Preferred Stock were issued and outstanding;
(b) As of . From the Measurement Date through the date of this Agreement, there are 58,775 shares no additional Shares or Preferred Shares have been authorized or issued. All of Company Common Stock subject to the outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock Shares have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contractsnonassessable. As of the close Measurement Date, the Company held 2,443,666 Shares in its treasury, and none of business on the Subsidiaries of the Company hold or have held any Shares. From the Measurement Date through the date of this Agreement, no additional Shares have been acquired in the Company’s treasury. The Company has no Shares or Preferred Shares reserved for issuance, except that, as of the Measurement Date, except as set forth in there were 5,096,956 Shares reserved for issuance pursuant to the Company Stock Plans. From the Measurement Date until the date of this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights additional Shares have been reserved for issuance pursuant to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock Stock Plans.
(ii) Section 6.1(b)(ii) of the Company or securities convertible into or exchangeable or exercisable Disclosure Schedule sets forth a correct and complete list of Company Awards in effect as of the date hereof, including the (A) total number of Company Awards, with subtotals for capital stock each type of award, (B) name of each Company Award recipient, (C) name of the Company Stock Plan pursuant to which such Company Award was issued and award type, (D) date of grant, (E) exercise price (as applicable) and (F) number of Shares subject thereto.
(iii) Each of the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests securities of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary each of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been ’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessable. nonassessable and owned by the Company or by a direct or indirect wholly-owned Subsidiary of the Company, free and clear of any Lien.
(iv) Except as set forth in this on Section 4.2, and except for changes since 6.1(b)(iv) of the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii)Company Disclosure Schedule, there are outstanding: (1) no shares of Company Capital Stockpreemptive rights, Voting Debt participation rights, maintenance rights 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 Company Capital Stockoutstanding rights, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptionsconversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, commitments or rights of any kind that obligate any of the Acquired Companies to issue, transfer or sell any outstanding shares of capital stock (including preemptive and appreciation rights), commitments Shares) or agreements to which the other securities of any Acquired Company or any Subsidiary of the Company is securities or obligations convertible or exchangeable into or exercisable for, or giving any Person a party or by which it is bound in any case obligating the Company or any Subsidiary of the Company right to issue, deliver, sell, purchase, redeem subscribe for or acquire, any securities of any Acquired Company, and no securities or cause to be issuedobligations evidencing such rights are authorized, delivered, sold, purchased, redeemed issued or acquired, additional outstanding. No outstanding shares of Company Capital Stock or any Voting Debt capital stock (including Shares) or other voting securities of any Acquired Company is subject to any right of first refusal or offer in favor of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support AgreementAgreements, there are not any stockholder agreements, voting trusts or other agreements to which the is no Company or any of its Subsidiaries is a party or by which it is bound Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of capital stock (including Shares) or other equity interest securities of any Acquired Company. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company or on any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stockmatter (“Voting Debt”).
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(ev) Except as set forth in Schedule 4.2 on Section 6.1(b)(v) of the Company Disclosure LetterSchedule, all there is no: (A) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the issued and outstanding capital stock (including Shares) or other securities of any of the Acquired Companies; (B) shareholder rights plan (or similar plan commonly referred to as a “poison pill”) or Contract under which any of the Acquired Companies is or may become obligated to sell or otherwise issue any shares of its capital stock (including Shares) or any other securities; or (C) condition or circumstance that has given or may give rise to, or has provided or may provide a basis for, the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock (including Shares) or other equity ownership interests securities of each Subsidiary any of the Company are owned by Acquired Companies.
(vi) All outstanding Shares, warrants, equity-based compensation awards (whether payable in equity, cash or otherwise) and other securities of the CompanyAcquired Companies have been issued and granted in compliance with: (A) all applicable securities Laws, directly or indirectly, the Code and all such shares or equity ownership interests are other applicable Laws; and (B) all requirements set forth in Schedule 4.2 of the applicable Contracts and any applicable Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightsStock Plan.
Appears in 2 contracts
Sources: Merger Agreement (Willbros Group, Inc.\NEW\), Merger Agreement (Primoris Services Corp)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 shares of 80,000,000 Company Common Stock and (ii) 75,000,000 Shares, of which 33,465,711 shares of preferred stockwere outstanding on May 2, par value $0.001 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6, 2020 (the “Measurement Date”): (A) 4,305,119 shares of Company Common Stock were issued and outstanding2001, and (B) no 13,056,800 Company Class B Common Shares, of which 12,224,835 shares of Company Preferred Stock were issued and outstanding;
(b) As outstanding on May 2, 2001. All of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock Shares have been duly authorized and are validly issued, fully paid and non-assessable nonassessable. As of May 2, 2001, 4,095,017 options and are 817,959 deferred stock awards were outstanding, all of which were granted pursuant to the Stock Plans (as defined below). Since May 2, 2001 and prior to the date hereof, the Company has not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws any Company Shares other than pursuant to the exercise of any Company Options and other applicable Law and Stock Awards or (ii) all requirements set forth in applicable Contractsany Company Options or Stock Awards. As of the close date of business on this Agreement, the Measurement DateCompany has no Company Shares reserved for issuance or subject to issuance, except that, as set forth in this Section 4.2 and in the Transaction Support Agreementof May 2, 2001, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the were 12,224,835 Company or any of its Subsidiaries any capital stock Common Shares reserved for issuance upon conversion of the Company or securities convertible into or exchangeable or exercisable Class B Common Shares, and as of May 2, 2001, 2,126,904 Company Common Shares reserved for capital stock issuance pursuant to the Company's 1977 Restricted Stock Award Plan, as amended (the "1977 Restricted Stock Plan") and 3,172,663 Company Common Shares reserved for issuance pursuant to the Company's 1996 Long-Term Incentive Plan (the "1996 LTIP" and, together with the 1977 Restricted Stock Plan, the "Stock Plans"). Each of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary each of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been 's Subsidiaries is duly authorized, validly issued, fully paid and nonassessablenonassessable and, except for directors' qualifying and nominee shares, owned by the Company or a direct or indirect wholly owned subsidiary of the Company, free and clear of any lien, pledge, security interest, claim or similar encumbrance and free of any other restriction (including any restriction on the right to vote, sell or otherwise dispose of such capital stock or other ownership interests), except for restrictions imposed by applicable securities laws. Except as set forth in this Section 4.2above there are no authorized, and except for changes since the Measurement Date resulting from the exercise of stock options issued or outstanding at such date, or stock grants Company Shares or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt capital stock 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 Company Capital Stock, Voting Debt and no preemptive or other voting securities of the Company; and (3) no outstanding rights, options, warrants, subscriptionsconversion rights, calls, rights (including preemptive and stock appreciation rights), redemption rights, repurchase rights, agreements, arrangements or commitments to issue or agreements to which the Company or sell any Subsidiary of the Company 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 capital stock or other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is or any securities or obligations convertible or exchangeable into or exercisable for, or giving any Person a party right to subscribe for or by which it is bound relating to the voting of acquire, any shares of capital stock or other equity interest securities of the Company or any of its Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued or outstanding. No Subsidiary The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company owns on any shares of matter ("Company Common Stock or any other shares of Company Capital StockVoting Debt").
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (MCC Acquisition Holdings Corp), Agreement and Plan of Merger (Carter Wallace Inc /De/)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 shares of Company Common Stock 250,000,000 Shares and (ii) 75,000,000 10,000,000 shares of preferred stock, par value $0.001 per share (the “Company Preferred Stock” and, together with the Company Common StockShares, the “Company Capital Stock”). At the close of business on November 6October 10, 2020 2018, (the “Measurement Date”): (Ai) 4,305,119 shares of Company Common Stock 47,088,791 Shares were issued and outstanding, and (Bii) no shares of Company Preferred Stock were issued and outstanding;, (iii) no Shares were held by the Company in its treasury, (iv) 14,178,734 Shares were reserved and available for issuance pursuant to the Company Stock Plans, including (A) 931,635 Shares issuable upon vesting or settlement of outstanding Company RSUs (whether or not vested and whether or not granted under the Company Stock Plans) and (B) 7,629,528 Shares issuable upon exercise of outstanding Company Options (whether or not vested and whether or not granted under the Company Stock Plans), (v) 1,213,589 Shares were reserved for issuance pursuant to the ESPP, and (vi) approximately 102,658 Shares are estimated to be subject to outstanding purchase rights under the ESPP (assuming the closing price per Share as reported on the purchase date for the Current Purchase Period is equal to the closing price per Share on October 10, 2018 and employee contributions continue until such purchase date at the levels in place as of the date immediately preceding the date of this Agreement). Except as set forth in this Section 3.3(a), at the close of business on October 10, 2018, no shares of capital stock or voting securities of, or other equity interests in, the Company were issued, reserved for issuance or outstanding. From the close of business on October 10, 2018 to the date of this Agreement, there have been no issuances by the Company of shares of capital stock or voting securities of, or other equity interests in, the Company, other than the issuance of Shares upon the vesting or settlement of Company RSUs and the issuance of Shares upon the exercise of Company Options, in each case, outstanding at the close of business on October 10, 2018 and in accordance with their terms in effect at such time.
(b) As The Company has delivered or made available to Parent copies of all Company Stock Plans covering the Company Options and Company RSUs outstanding as of the date of this Agreement, there are 58,775 shares the forms of all stock option agreements evidencing such Company Common Stock subject Options, and the restricted stock unit agreements evidencing such Company RSUs. The Company has delivered or made available to outstanding Company Stock Awards Parent copies of the ESPP and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rightsapplicable offering documents. All outstanding shares of Company Common Capital Stock have been are, and, at the time of issuance, all such shares that may be issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of upon the close of business on the Measurement Dateexercise, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants settlement or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock vesting of the Company Options or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exerciseRSUs will be, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessablenonassessable and not subject to, or issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the DGCL, the Company Charter, the Company Bylaws, any Contract to which the Company is a party or otherwise bound, or by applicable Law. Except as set forth above in this Section 4.23.3 there are no issued, reserved for issuance or outstanding, and except for changes since there are no outstanding obligations of the Measurement Date resulting from the exercise of stock options outstanding at such dateCompany or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, (x) any capital stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2) no Company or any Company Subsidiary or any securities of the Company or any Company Subsidiary of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stockcapital stock or voting securities of, Voting Debt or other voting securities of the Company; and (3) no optionsequity interests in, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company is a party Subsidiary, (y) any warrants, calls, options or by which it is bound in any case obligating other rights to acquire from the Company or any Subsidiary Company Subsidiary, or any other obligation of the Company or any Company Subsidiary to issue, deliver, deliver or sell, purchase, redeem or acquire, or cause to be issued, delivered, delivered or sold, purchasedany capital stock or voting securities of, redeemed or acquiredother equity interests in, additional the Company or any Company Subsidiary or (z) 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 the capital stock of the Company or any shares of capital stock of any Company Capital Stock or any Voting Debt or other voting securities Subsidiary, the value of the Company, any Company Subsidiary or obligating 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 to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreementCompany Subsidiary. Other than (1) the Transaction Support Agreementwithholding of Shares to satisfy Tax obligations with respect to awards granted pursuant to the Company Stock Plans and (2) the acquisition by the Company of awards granted pursuant to the Company Stock Plans in connection with the forfeiture of such awards, there are not any stockholder agreements, voting trusts or other agreements to which outstanding obligations of the Company or any of its the Company Subsidiaries is a party to repurchase, redeem or by which it is bound relating to the voting of otherwise acquire any shares of capital stock or voting securities or other equity interest interests of the Company or any Company Subsidiary or any securities, interests, warrants, calls, options or other rights referred to in clause (x), (y) or (z) of its Subsidiariesthe immediately preceding sentence. No Subsidiary There are no bonds, debentures, notes or other Indebtedness of the Company owns having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As matters on which stockholders of the date of Company may vote (collectively, “Company Voting Debt”). Other than as contemplated by this Agreement, neither the Company nor any of its the Company Subsidiaries has nor, to the Knowledge of the Company, any of the Company’s stockholders is a party to (i) interests in a material joint venture orany voting agreement with respect to the voting of any capital stock or voting securities of, directly or indirectly, equity securities or other similar equity interests in any Person in, the Company or (ii) obligations, whether contingent or otherwise, any agreement pursuant to consummate any material additional investment in which any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 is entitled to elect, designate or nominate any director of the Company Disclosure Letteror any of the Company Subsidiaries.
(ec) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each No Subsidiary of the Company are owned by owns any Shares.
(d) Neither the Company, directly Company nor any Company Subsidiary or indirectly, all such shares or equity ownership interests are set forth associates (as defined in Schedule 4.2 Section 203 of the Company Disclosure LetterDGCL) owns, and all or has owned at any time within the past three (3) years, any shares of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightsParent Common Stock.
Appears in 2 contracts
Sources: Merger Agreement (Twilio Inc), Merger Agreement (SendGrid, Inc.)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 40,000,000 shares of common stock, par value $.001 per share (the "Company Common Stock Stock"), and (ii) 75,000,000 2,000,000 shares of preferred stock, par value $0.001 .001 per share (“the "Company Preferred Stock” " and, together with the Company Common Stock, the “"Company Capital Stock”"). At the close of business on November 6April 21, 2020 2003, (the “Measurement Date”): (Ai) 4,305,119 20,528,899 shares of Company Common Stock were issued and outstanding, and (B) no shares of Company Preferred Stock were issued and outstanding;
, (bii) As 1,749,141 shares of Company Common Stock were subject to outstanding Company Employee Stock Options and 4,693,642 additional shares of Company Common Stock were reserved for issuance pursuant to the Company Stock Plans and (iii) 120,501 shares of Company Common Stock were reserved for issuance pursuant to the Company's 2000 Employee Stock Purchase Plan (the "Company ESPP"). Except as set forth above, as of the date of this Agreement, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. All outstanding shares of Company Common 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 DGCL, 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 not any bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of Company Capital Stock may vote. Except as set forth above, as of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding any options, warrants warrants, rights, convertible or other rights exchangeable securities, "phantom" stock rights, stock appreciation rights, stock-based performance units, commitments, Contracts, arrangements or undertakings of any kind to subscribe for, purchase or acquire from which the Company or any Company Subsidiary is a party or by which any of its Subsidiaries any capital stock of them is bound (i) obligating the Company or securities convertible into any Company Subsidiary to issue, deliver or exchangeable sell, or exercisable for capital stock of the Company (and the exercisecause to be issued, conversiondelivered or sold, purchase, exchange or other similar price thereof). All outstanding additional shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Companyin, or a direct any security convertible or indirect wholly owned Subsidiary exercisable for or exchangeable into any capital stock of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii)equity interest in, there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2) no securities of the Company or of any Company Subsidiary of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stock, Voting Debt or other voting securities of the Company; and (3ii) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company is a party or by which it is bound in any case obligating the Company or any Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment security, commitment, Contract, arrangement or agreementundertaking. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor there are not any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 outstanding contractual obligations of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the or any Company Disclosure LetterSubsidiary to repurchase, all of the issued and outstanding redeem or otherwise acquire any shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the any Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightsSubsidiary.
Appears in 2 contracts
Sources: Merger Agreement (MCK Communications Inc), Merger Agreement (Verso Technologies Inc)
Capital Structure. (a) As of the date of this Agreement, the authorized capital stock of the Company consists of (i) 8,000,000 500,000,000 shares of Company Common Stock and (ii) 75,000,000 50,000,000 shares of preferred stock, par value $0.001 0.01 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6October 26, 2020 (the “Measurement Date”): (A) 4,305,119 2018: 101,996,339 shares of Company Common Stock were issued and outstanding, outstanding and (B) no 435,000 shares of Company Preferred Stock were issued and outstanding;
, which are designated as “6.00% Series A Perpetual Convertible Preferred Stock” and, as of October 26, 2018, are convertible into 32,402,059 shares of Company Common Stock, both pursuant to the Certificate of Designations filed with the Secretary of State of the State of Delaware on June 30, 2017 (b) the “Company Certificate of Designations”). As of the date of this Agreement, there are 58,775 the shares of Company Common Stock subject to issued and outstanding Company Stock Awards and 12,182 include 2,351,047 shares of Restricted Stock. 6,660,011 shares of Company Common Stock subject remained available for issuance pursuant to outstanding the Company RSU AwardsStock Plan.
(cb) All outstanding shares of Company Common Capital Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Capital Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contractscontracts. As of the close of business on the Measurement DateOctober 26, 2018, except as set forth in this Section 4.2 and in pursuant to the Transaction Support AgreementCompany Certificate of Designations, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company Capital Stock or securities convertible into or exchangeable or exercisable for capital stock of the Company Capital Stock (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company that are owned by the Company, or a direct or indirect wholly wholly-owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, authorized and are validly issued, fully paid and nonassessablenon-assessable. Except for the Preferred Stock or as set forth in this Section 4.2, and except for changes since the Measurement Date October 26, 2018 resulting from the exercise of stock options outstanding at such datedate (and the issuance of shares thereunder), or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1A) no shares of Company Capital Stock, (B) no Voting Debt or other voting securities of the Company; Debt, (2C) no securities of the Company or any Subsidiary of the Company convertible into or exchangeable or exercisable for shares of Company Capital StockStock or Voting Debt, Voting Debt or other voting securities of the Company; and (3D) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Stockholders’ Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Capital Stock or any other shares equity interest in any of Company Capital Stock.
(d) the Company’s Subsidiaries. As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any no (i1) interests in a material joint venture or, directly or indirectly, equity securities or other similar material equity interests in any Person or (ii2) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 2 contracts
Sources: Merger Agreement (WildHorse Resource Development Corp), Merger Agreement (Chesapeake Energy Corp)
Capital Structure. Except as set forth in Schedule 4.2 of the Company Disclosure Letter:
(a) As of the date of this Agreement, the authorized capital stock of the Company consists of (i) 8,000,000 65,000,000 shares of Company Common Stock and (ii) 75,000,000 10,000,000 shares of preferred stock, par value $0.001 0.01 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At As of the close date of business on November 6, 2020 (the “Measurement Date”): this Agreement: (A) 4,305,119 50,924,098 shares of Company Common Stock were are issued and outstanding, outstanding and (B) no shares of Company Preferred Stock were issued and outstanding;
; (bB) As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to issued and outstanding Company Stock Awards and 12,182 include 325,775 shares of Company Common Restricted Stock; (C) 928,781 Company RSUs are outstanding and 590,767 Company RSUs remain available for issuance pursuant to the Company Restricted Stock subject to Units Plan; and (D) the outstanding Company RSU AwardsPIAs consist solely of those awarded under the Company PIA Award Agreements listed on Schedule 4.2 of the Company Disclosure Letter.
(cb) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are were not subject to issued in violation of any preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contractscontracts. As of the close date of business on the Measurement Datethis Agreement, except as set forth in this Section 4.2 and in the Transaction Support Agreement4.2, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly wholly-owned Subsidiary of the Company, are free and clear of all Encumbrances, Encumbrances (other than Permitted Encumbrances, Encumbrances described in Schedule 4.2 of the Company Disclosure Letter) and have been duly authorized, authorized and are validly issued, fully paid and nonassessablenonassessable (except, in the case of partnerships or limited liability companies, to the extent such non-assessability may be affected by applicable Law of their jurisdictions of formation or organization). Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1A) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; , (2B) no securities of the Company or any Subsidiary of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stock, Voting Debt or other voting securities of the Company; Company and (3C) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company or any Subsidiary of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Company Voting Agreements and the Company Stockholders Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) . As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i1) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii2) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 2 contracts
Sources: Merger Agreement (Eclipse Resources Corp), Voting Agreement (Eclipse Resources Corp)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 400,000,000 shares of Company Common Stock and (ii) 75,000,000 shares of preferred stockStock, par value $0.001 per share (“Company Common Stock”), and 20,000,000 shares of Preferred Stock” and, par value $0.001 per share (together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6December 16, 2020 2022 (the “Measurement Company Capitalization Date”): ), (Ai) 4,305,119 40,329,925 shares of Company Common Stock were issued and outstandingoutstanding (including 668,563 Company Restricted Shares), and (Bii) no 811,374 shares of Company Preferred Common Stock were issued reserved and outstanding;
available for issuance pursuant to the Company Warrant Certificate, (biii) 8,383,647 shares of Company Common Stock were reserved and available for issuance pursuant to the Company Stock Plans, including 5,231,467 shares of Company Common Stock issuable upon the exercise of outstanding Company Stock Options (whether or not presently exercisable and, solely for Company Stock Options subject to performance goals, assuming full achievement of the applicable performance goals). In addition, there are 779,800 shares of Company Common Stock that are reserved and available for issuance pursuant to the Company ESPP as of the Company Capitalization Date. As of the date of this Agreement, no outstanding offering periods have commenced under the Company ESPP. Except as set forth in this Section 5.03(a), at the close of business on the Company Capitalization Date, no shares of capital stock or voting securities of, or other equity interests in, the Company were issued, reserved for issuance or outstanding. From the close of business on the Company Capitalization Date to the date of this Agreement, there have been no issuances by the Company of shares of capital stock or voting securities of, or other equity interests in, the Company, other than the issuance of Company Common Stock upon the exercise of the Company Stock Options outstanding at the close of business on the Company Capitalization Date.
(b) All outstanding shares of Company Capital Stock are, and, at the time of issuance, all such shares that may be issued upon the exercise of Company Stock Options 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 Charter, the Company Bylaws or any Contract to which the Company is a party or otherwise bound. Except as set forth above in this Section 5.03 or resulting from the exercise of Company Stock Options (and the issuance of shares of Company Capital Stock thereunder), or stock grants or other awards granted in accordance with this Agreement, there are 58,775 no issued, reserved for issuance or outstanding, and there are no 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 the Company Capital Stock or any shares of capital stock of any Company Subsidiary, the value of the Company, any Company Subsidiary or 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. Other than (A) the acquisition by the Company of shares of Company Common Stock in connection with the surrender of shares of Company Common Stock by holders of Company Stock Options in order to pay the exercise price thereof, (B) the withholding of shares of Company Common Stock to satisfy Tax obligations or payment of an exercise price with respect to awards granted pursuant to the Company Stock Plans, (C) the acquisition by the Company of awards granted pursuant to the Company Stock Plans in connection with the forfeiture of such awards and (D) obligations pursuant to the Company Warrant Certificate, 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 bonds, debentures, notes or other Indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote (collectively, “Company Voting Debt”). Neither the Company nor any of the Company Subsidiaries is a party to (1) any voting agreement with respect to the voting of any capital stock or voting securities of, or other equity interests in, the Company or (2) any agreement pursuant to which any Person is entitled to elect, designate or nominate any director of the Company or any of the Company Subsidiaries. None of the Company or any Company Subsidiary has a “poison pill” or similar equityholder rights plan.
(c) Section 5.03(c) of the Company Disclosure Letter accurately sets forth the following information with respect to each Company Equity Award outstanding as of the Company Capitalization Date: (i) the Company Stock Plan (if any) pursuant to which such Company Equity Award was granted; (ii) the name (or other unique identifier) of the holder of such Company Equity Award; (iii) the number of shares of Company Common Stock subject to outstanding such Company Stock Equity Award (including, for Company Equity Awards and 12,182 subject to performance-based vesting requirements, the maximum number of shares of Company Common Stock); (iv) the exercise price (if any) of such Company Equity Award; (v) the grant date of such Company Equity Award; (vi) the applicable vesting schedule or vesting date, and the extent to which such Company Equity Award is vested or exercisable; (vii) the date on which such Company Equity Award expires; and (viii) if such Company Equity Award is a Company Stock subject Option, whether it is an “incentive stock option” (as defined in the Code) or a non-qualified stock option. The Company has made available to Parent accurate and complete copies of all Company Stock Plans, if not granted under an equity plan, such other Contract, pursuant to which any Company Equity Awards are outstanding as of the date of this Agreement, and the forms of all Company RSU Awards.
(c) All outstanding shares Equity Award agreements evidencing such Company Equity Awards as of the date of this Agreement. The exercise price of each Company Stock Option is no less than the fair market value of a share of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rightsas determined on the date of grant of such Company Stock Option. All outstanding shares grants of Company Common Stock Equity Awards were recorded on the Company’s financial statements (including any related notes thereto) contained in all reports filed with the SEC in accordance with GAAP, and no such grants involved any “back dating,” “forward dating” or similar practices with respect to the effective date of grant. All Company Equity Awards have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As the terms of the close of business on the Measurement Date, except as set forth in this Section 4.2 applicable Company Stock Plan and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the all applicable Laws.
(d) No Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 2 contracts
Sources: Merger Agreement (Berkeley Lights, Inc.), Merger Agreement (IsoPlexis Corp)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 300,000,000 shares of Company Common Stock and (ii) 75,000,000 50,000,000 shares of preferred stock, $0.01 par value $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 November 6May 30, 2020 2014, (the “Measurement Date”): (Ai) 4,305,119 169,316,257 shares of Company Common Stock were issued and outstandingoutstanding (including 225,905 Company Restricted Shares), and (Biii) no shares of Company Preferred Stock were issued and outstanding;
(b) As of the date of this Agreement, there are 58,775 17,576,015 shares of Company Common Stock subject to outstanding were available for grant under the Company Stock Awards Equity Plans. All issued and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of the capital stock of the Company Common Stock have been are duly authorized and are authorized, validly issued, fully paid and non-assessable assessable, and are not subject no class of capital stock of the Company is entitled to preemptive rights. All There are no outstanding bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matter on which holders of shares of Company Common Stock have been issued may vote. Section 4.3(a) of the Company Disclosure Letter, sets forth for each holder of Company Restricted Shares outstanding as of the date of this Agreement (A) the name with respect to the holder (B) the number of such Company Restricted Shares held by such holder, (C) the date of grant of such Company Restricted Shares, and granted (D) the vesting schedule for such Company Restricted Shares. 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 Stock other than as disclosed on Section 4.3(a) of the Company Disclosure Letter. Each Company Restricted Share grant and each LTIP Unit grant was made in compliance accordance in all material respects with the terms of the Company Equity Plans and applicable Law. Prior to the Closing (iand as close to Closing as reasonably practicable), the Company will provide to Parent a complete and correct list that contains the information required to be provided in Section 4.3(a) of the Company Disclosure Letter, that is correct and complete as of the date such list is provided; provided, however, that delivery of such updated schedule shall not cure any breach of this Section 4.3(a) for purposes of determining whether the applicable securities Laws closing condition has been satisfied. There are 1,443,897 OP Units issued and outstanding (other applicable Law and than 5,613,374 OP Units to be issued in respect of the termination of the Listing Agreement), (ii) all requirements set forth in applicable Contractsno Class B OP Units issued and outstanding and (iii) 9,219,108 LTIP Units issued and outstanding, each of which LTIP Units is owned of record and beneficially by the Company Advisor, and each of which LTIP Units shall be forfeited immediately prior to the Effective Time. As of the close of business on the Measurement Date, except Except as set forth in this Section 4.2 and in the Transaction Support Agreementpreceding sentence, there are no outstanding other partnership interests or other equity or ownership interests in the Company Operating Partnership and there are no existing options, warrants warrants, calls, subscriptions, convertible securities or other rights securities, agreements, commitments or obligations of any character relating to subscribe for, purchase the partnership interests or acquire from other equity or ownership interests in the Company Operating Partnership or other securities which would require the Company Operating Partnership to issue or sell any of its Subsidiaries any capital stock partnership interests or other equity or ownership interests in the Company Operating Partnership.
(b) All of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries each of the Company Subsidiaries that is a corporation are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. All equity interests in each of the Company 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 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 in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (14.1(c) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2) no securities of the Company Disclosure Letter, the Company owns, directly or any Subsidiary 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 or exercisable for shares of Company Capital Stock, Voting Debt its capital stock or other voting securities ownership interests.
(c) Except as set forth in this Section 4.3 or in Section 4.3(a) of the Company; and (3) Company Disclosure Letter, as of the date of this Agreement, there are no securities, options, warrants, subscriptions, calls, rights, commitments, agreements, rights (including preemptive and appreciation rights)of first refusal, commitments arrangements or agreements undertakings of any kind to which the Company or any Company Subsidiary of the Company is a party or by which it any of them is bound in any case bound, obligating the Company or any Company Subsidiary of the Company to issue, deliver, sell, purchase, redeem deliver or acquiresell or create, or cause to be issued, delivered, sold, purchased, redeemed delivered or acquiredsold or created, additional shares of Company Capital Common Stock, shares of Company Preferred Stock or any Voting Debt other equity securities or phantom stock or other voting securities contractual rights the value of which is determined in whole or in part by the value of any equity security of the Company, Company or any of the Company Subsidiaries or obligating the Company or any Company Subsidiary of the Company to issue, grant, extend or enter into any such security, option, warrant, subscription, call, right, commitment commitment, agreement, right of first refusal, arrangement or agreementundertaking. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of capital stock or other equity interest Except as set forth in Section 4.3(c) of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As Disclosure Letter, as of the date of this Agreement, neither there are no outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of Company Common Stock, shares of Company Preferred Stock or other equity securities of the Company or any Company Subsidiary (other than in satisfaction of withholding Tax obligations pursuant to certain awards outstanding under the Company Equity Plans in the event the grantees otherwise fail to satisfy withholding Tax obligations). Neither the Company nor any Company Subsidiary is a party to or bound by any agreements or understandings concerning the voting (including voting trusts and proxies) of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 capital stock of the Company Disclosure Letteror any of the Company Subsidiaries.
(ed) Except as set forth in Schedule 4.2 of All dividends or other distributions on the Company Disclosure Letter, all of the issued and outstanding shares of capital stock Company Common Stock and Company Preferred Stock and any material dividends or other equity ownership interests distributions on any securities of each any Company Subsidiary of which have been authorized or declared prior to the Company are owned by date hereof have been paid in full (except to the Company, directly or indirectly, all extent such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued dividends have been publicly announced and are fully paid, nonassessable not yet due and free of preemptive rightspayable).
Appears in 2 contracts
Sources: Merger Agreement (Ventas Inc), Merger Agreement (American Realty Capital Healthcare Trust Inc)
Capital Structure. (a) As of the date of this AgreementExecution Date, the authorized capital stock of the Company Purchaser consists of (i) 8,000,000 2,000,000,000 shares of Company Common Stock and (ii) 75,000,000 100,000,000 shares of preferred stock, par value $0.001 0.01 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6October 30, 2020 2019 (the “Measurement Date”): (A) 4,305,119 416,740,907 shares of Company Common Stock were issued and outstanding, outstanding and (B) no shares of Company Preferred Stock were issued and outstanding;.
(b) As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are were not subject to preemptive rightsissued in violation of any Right. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable ContractsPurchaser’s Organizational Documents. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company Purchaser or any of its Subsidiaries any capital stock of the Company Purchaser or securities convertible into or exchangeable or exercisable for capital stock of the Company Purchaser (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company Purchaser that are owned by the CompanyPurchaser, or a direct or indirect wholly wholly-owned Subsidiary of the CompanyPurchaser, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such datedate (and the issuance of shares of Common Stock thereunder, which were reserved for issuance as set forth in Section 5.2(a)), or stock grants or other awards granted in accordance with Section 6.1(b)(ii6.2(b)(ii), there are outstanding: (1A) no shares of Company Capital Stock, (B) no Voting Debt or other voting securities of the Companysecurities; (2C) no securities of the Company Purchaser or any Subsidiary of the Company Purchaser convertible into or exchangeable or exercisable for shares of Company Capital Stock, Stock or Voting Debt or other voting securities of the Company; Purchaser, and (3D) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company Purchaser or any Subsidiary of the Company Purchaser is a party or by which it is bound in any case obligating the Company Purchaser or any Subsidiary of the Company Purchaser 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 other voting securities of the CompanyPurchaser, or obligating the Company Purchaser or any Subsidiary of the Company Purchaser to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there There are not any stockholder agreements, voting trusts or other agreements to which the Company Purchaser or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of capital stock Capital Stock or other equity interest of the Company Purchaser or any of its Subsidiaries. No Subsidiary of the Company Purchaser owns any shares of Company Common Stock or any other shares of Company Capital Common Stock.
(d) . As of the date of this AgreementExecution Date, neither the Company Purchaser nor any of its Subsidiaries holds, or has a commitment to acquire, any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in Interests of any Person other than its wholly-owned Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure LetterCompany.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 2 contracts
Sources: Securities Purchase Agreement (WPX Energy, Inc.), Securities Purchase Agreement (WPX Energy, Inc.)
Capital Structure. (ai) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 shares of Company Common Stock and (ii) 75,000,000 25,000,000 shares of preferred stock, par value $0.001 0.01 per share (“Company Preferred Stock” and”) and (ii) 500,000,000 Shares. As of June 17, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6, 2020 (the “Measurement Date”): 2022: (A) 4,305,119 73,194,171 Shares were issued and outstanding, (B) no shares of Company Common Preferred Stock were issued and outstanding, and (BC) no shares of Company Preferred Stock 5,636,129 Shares were issued and outstanding;
(b) As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock Options, (D) 2,660,447 Shares were subject to outstanding Company RSU Awards.
, and (cE) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not 1,245,120 Shares were subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessablePSU Awards. Except as set forth in this Section 4.25.01(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 6.01(b), the Company has no other equity or equity-based interests authorized, issued and/or outstanding.
(ii) Section 5.01(b)(ii) of the Company Disclosure Schedule sets forth a complete and accurate list as of the date hereof 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, date of grant, vested status, and except for changes since in the Measurement Date resulting from case of any Company Option, the exercise price. Each Company Option was granted in compliance with Section 409A of stock options the Code.
(iii) All of the outstanding at such date, or stock grants or other awards granted Shares are duly authorized and validly issued in accordance with the Company’s organizational documents, as applicable, and are, or will be when issued, fully paid and nonassessable. 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 outstanding equity interests in each of 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. 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 and its Subsidiaries.
(iv) Except as set forth in the organizational documents of the Company and except as otherwise provided in Section 6.1(b)(ii5.01(b)(i), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt preemptive rights or other voting securities 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 the Company; (2) no securities of any kind that obligate the Company or any Subsidiary of the Company its Subsidiaries to issue or sell any equity interests or any securities or obligations convertible or exchangeable into or exchangeable exercisable for, giving any Person a right to subscribe for or exercisable for shares of Company Capital Stockacquire or measured by reference to, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which any equity interests in the Company or any Subsidiary of its Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(v) Neither the Company is a party nor any of its Subsidiaries has any outstanding bonds, debentures, notes or by other obligations the holders of which it is bound have the right to vote (or convertible into or exercisable for securities having the right to vote) with the holders of equity interests 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 its Subsidiaries on any Voting Debt or other matter.
(vi) There are no voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreementstrusts, voting trusts proxies or other agreements or understandings to which the Company or any of its Subsidiaries is a party or by which it is bound relating with respect to the voting or registration of any shares of capital stock the Shares or other equity interest of the Company or any of its Subsidiaries. No Subsidiary .
(vii) Except with respect to the ownership of any equity or long-term debt securities between or among the Company or any of its Subsidiaries, none of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture orowns, directly or indirectly, any equity or long-term debt securities or other similar equity interests in of any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure LetterPerson.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 2 contracts
Sources: Merger Agreement (Convey Health Solutions Holdings, Inc.), Merger Agreement (Convey Health Solutions Holdings, Inc.)
Capital Structure. (a) As of the date of this Agreement, the authorized capital stock of the Company consists of (i) 8,000,000 1,000,000,000 shares of Company Common Stock and (ii) 75,000,000 50,000,000 shares of preferred stock, par value $0.001 0.01 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6October 11, 2020 2019 (the “Measurement Date”): (A) 4,305,119 213,404,153 shares of Company Common Stock were issued and outstanding, outstanding and (B) no shares of Company Preferred Stock were issued and outstanding;
; (bB) As of the date of this Agreement, there are 58,775 1,684,659 Company RSUs were issued and outstanding and 1,213,728 Company PSUs were issued and outstanding at target performance levels; and (C) 17,747,482 shares of Company Common Stock subject remained available for issuance pursuant to outstanding the Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU AwardsEquity Plan.
(cb) All outstanding shares of Company Common Capital Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Capital Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contractscontracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Designated Stockholder Voting Agreements and the Company Stockholders’ Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise vesting of stock options Company RSUs or Company PSUs outstanding at such datedate (and the issuance of shares thereunder), or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1A) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; , (2B) no securities of the Company or any Subsidiary of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stock, Voting Debt or other voting securities of the Company; Company and (3C) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support AgreementCompany Stockholders’ Agreement and the Designated Stockholder Voting Agreements, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) . As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i1) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii2) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 2 contracts
Sources: Merger Agreement (Parsley Energy, Inc.), Merger Agreement (Jagged Peak Energy Inc.)
Capital Structure. (ai) As of the date of this Agreement, the authorized capital stock of the Company consists of (iA) 8,000,000 120,000,000 shares of Company Common Stock and (iiB) 75,000,000 3,000,000 shares of preferred stock, no par value $0.001 per share (“Company Preferred Stock,” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6January 23, 2020 2017 (the “Measurement Capitalization Reference Date”): ), (A1) 4,305,119 51,219,000 shares of Company Common Stock were issued and outstanding, and (B2) no shares of Company Preferred Stock were issued and outstanding;
, (b3) As of the date of this Agreement, there are 58,775 2,747,260 shares of Company Common Stock subject were reserved for issuance pursuant to outstanding the Company Stock Awards and 12,182 Plans, of which 281,341 shares of Company Common Stock were subject to outstanding issuance upon the vesting of Pre-Signing Company RSU Awards.
Equity Awards based on achievement of target level performance, and (c4) no Voting Debt was issued and outstanding. All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to any preemptive rights. All .
(ii) Section 3.1(b)(ii) of the Company Disclosure Schedule sets forth, as of the Capitalization Reference Date, a complete and correct list of all outstanding Pre-Signing Company Equity Awards, including the holder, date of grant, exercise price (if applicable), vesting schedule, performance period and number of shares of Company Common Capital Stock have been issued and granted in compliance in all material respects with (ibased on target performance) applicable securities Laws and other applicable Law and or performance units (iiincluding the target dollar value per unit) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company subject thereto.
(and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. iii) Except as set forth in this Section 4.23.1(b), and except for changes since the Measurement Capitalization Reference Date resulting from the exercise vesting or settlement of stock options outstanding at such datePre-Signing Company Equity Awards, or stock grants or other awards granted in accordance with Section 6.1(b)(ii)as of the date hereof, (A) there are outstanding: (1) no outstanding shares of Company Capital StockStock or any other equity interests in the Company, (B) there is no Voting Debt or other voting securities of the Company; issued and outstanding, (2C) there are no securities of the Company or any Subsidiary of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stock, Voting Debt or other voting securities equity interests in the Company or in any Subsidiary of the Company; Company and (3D) there are no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements Contracts to which the Company or any Subsidiary of the Company 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 other equity interests in the Company), any Voting Debt or any other voting securities equity interests in any Subsidiary of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement.
(iv) As of the date of this Agreement, the authorized capital stock of the Regulated Utility Subsidiary consists of (A) 80,000,000 shares of common stock of the Regulated Utility Subsidiary, par value $1.00 per share (“Regulated Utility Subsidiary Common Stock”), and (B) 1,500,000 shares of preferred stock, no par value (“Regulated Utility Subsidiary Preferred Stock”, and, together with the Regulated Utility Subsidiary Common Stock and any other capital stock of Regulated Utility Subsidiary, the “Regulated Utility Subsidiary Capital Stock”). At the close of business on the Capitalization Reference Date, (1) 46,479,536 shares of Regulated Utility Subsidiary Common Stock were issued and outstanding, all of which were held by the Company, (2) 70,600 shares of $4.25 series Regulated Utility Subsidiary Preferred Stock were issued and outstanding, (3) 150,000 shares of $4.80 series Regulated Utility Subsidiary Preferred Stock were issued and outstanding and (4) 60,000 shares of $5.00 series Regulated Utility Subsidiary Preferred Stock were issued and outstanding. All outstanding shares of Regulated Utility Subsidiary Preferred Stock are validly issued, fully paid and non-assessable and are not subject to any preemptive rights. Other than the Transaction Support Regulated Utility Subsidiary Preferred Stock, and except as set forth on Section 3.1(b)(v) of the Company Disclosure Schedule, all outstanding shares of capital stock and other equity interests 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 Encumbrances, except for such Encumbrances as may be provided under the Securities Act or any transfer restrictions set forth in the Organizational Documents of such Subsidiary.
(v) Section 3.1(b)(v) of the Company Disclosure Schedule contains a complete and correct list as of the date of this Agreement of (A) the name, equity capitalization and schedule of equityholders of each non-wholly owned Subsidiary of the Company (other than the Regulated Utility Subsidiary) and (B) the name of, and the Company’s percentage equity ownership interest in, each Company Joint Venture. Other than the Subsidiaries and the Company Joint Ventures, as of the date of this Agreement, there the Company does not own any shares of capital stock or other equity interests in any Person, and has no binding obligations, whether contingent or otherwise, to purchase any shares of capital stock or other equity interests in any Person. The Company has made available to Parent complete and correct copies of the Organizational Documents of the Company Joint Ventures, in each case in effect as of the date hereof.
(vi) There are not any no stockholder agreements, voting trusts or other agreements Contracts to which the Company or any of its Subsidiaries is a party or by which it such Person is bound relating to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Capital Stock or any other shares of Company Regulated Utility Subsidiary Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Washington Gas Light Co)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 shares 135,000,000 Shares, of Company Common Stock which 36,729,865 Shares were outstanding as of the May 21, 2007, and (ii) 75,000,000 1,000,000 shares of preferred stock, par value $0.001 1.00 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Preferred Stock”). At , of which no shares were outstanding as of the close closing of business on November 6, 2020 (the “Measurement Date”): (A) 4,305,119 shares of Company Common Stock were issued and outstanding, and (B) no shares of Company Preferred Stock were issued and outstanding;
(b) As of the date hereof. Between May 21, 2007 and the execution of this Agreement, there are 58,775 shares no Shares have been issued except pursuant to the exercise of Company Common Stock subject to Options in accordance with the terms thereof. All of the outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock Shares have been duly authorized and are validly issued, fully paid and non-assessable and are not subject nonassessable. Other than 5,766,126 Shares (reduced by any Shares issued pursuant to preemptive rights. All outstanding shares exercise of Company Common Stock have been issued Options in accordance with the terms thereof since May 21, 2007) reserved for issuance under the Company’s ESPP, the Company’s 1998 Long-Term Growth Incentive Plan (the “1998 Plan”), the Company’s 1998 Non-Employee Director Stock Ownership Plan (the “1998-D Plan”) and granted in compliance in all material respects with the Company’s 2001 Stock Option and Incentive Plan (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contractsthe “2001 Plan”), the Company has no Shares reserved for issuance. As of the close of business on the Measurement DateMay 21, except as set forth in this Section 4.2 and in the Transaction Support Agreement2007, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock had 5,766,126 Shares reserved for issuance under the ESPP, the 1998 Plan, the 1998-D Plan and the 2001 Plan. Section 6.1.2 of the Company Disclosure Schedule contains a correct and complete list of options, performance share awards subject to vesting and restricted stock under the Stock Plans, including the holder, date of grant, term, number of Shares and, where applicable, exercise price and vesting schedule, including whether the vesting will be accelerated by the execution of this Agreement or securities convertible into or exchangeable or exercisable for capital stock consummation of the Company (and Merger or by termination of employment or change of position following consummation of the exercise, conversion, purchase, exchange or other similar price thereof)Merger. All Each of the outstanding shares of capital stock or other equity interests securities of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary each of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been ’s Subsidiaries is duly authorized, validly issued, fully paid and nonassessablenonassessable and owned by the Company or by a direct or indirect wholly-owned Subsidiary of the Company, free and clear of any Lien except, where applicable, for director qualifying shares as required by applicable law in any foreign jurisdiction. Except as set forth in this Section 4.2, above and except for changes since the Measurement Date resulting from rights (the exercise “Rights”) that have been issued pursuant to the Shareholder Rights Agreement, dated as of stock options outstanding at such dateMarch 13, or stock grants or other awards granted in accordance with Section 6.1(b)(ii2007, between the Company and Computershare Trust Company, N.A., as rights agent (the “Rights Agreement”), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt preemptive 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 Company Capital Stockoutstanding rights, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptionsconversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or rights of any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which kind that obligate the Company or any of its Subsidiaries is a party to issue or by which it is bound relating to the voting of sell any shares of capital stock or other equity interest securities 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 securities of the Company or any of its Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued or outstanding. No Subsidiary 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. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the Shareholders of the Company owns on any shares of Company Common Stock or any other shares of Company Capital Stockmatter.
(db) As Section 6.1.2(b) of the date Company Disclosure Schedule sets forth (i) each of this Agreement, neither the Company’s Subsidiaries and the ownership interest of the Company nor in each such Subsidiary, as well as the ownership interest of any other Person or Persons in each such Subsidiary and (ii) 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 has any (i) interests in a material joint venture orand consisting of less than 1% of the outstanding capital stock of such company. The Company does not own, directly or indirectly, equity securities or other similar equity interests any voting interest in any Person or that requires an additional filing by Parent under the HSR Act.
(c) Each Company Option (i) was granted in compliance with all applicable Laws and all of the terms and conditions of the Company Stock Plan pursuant to which it was issued, (ii) obligationsthat is currently outstanding and vested has an exercise price per share of Common Stock equal to or greater than the fair market value of a share of Common Stock on the date of such grant, whether contingent or otherwise, (iii) that is currently outstanding and vested has a grant date identical to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed the date on Schedule 4.2 of which the Company Disclosure Letter.
Board or compensation committee actually awarded such Company Option, and (eiv) Except as set forth qualifies for the tax and accounting treatment afforded to such Company Option in Schedule 4.2 of the Company’s Tax Returns and the Company Disclosure LetterReports, all respectively; except, in the case of clause (i), (ii) or (iii) above, for any failure to have such terms that, individually or in the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Companyaggregate, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightswould not reasonably be expected to have a Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Stride Rite Corp), Merger Agreement (Payless Shoesource Inc /De/)
Capital Structure. (ai) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 50,000,000 shares of Company Common Stock and (ii) 75,000,000 1,000,000 shares of preferred stock, par value $0.001 .001 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 November 6September 24 2007, 2020 (the “Measurement Date”): (AA)(1) 4,305,119 15,153,410 shares of Company Common Stock were issued and outstandingoutstanding (including shares held in treasury), (2) 2,295,375 shares of Company Common Stock were reserved for issuance upon the exercise or payment of stock options outstanding on such date, with a weighted average exercise price of $5.66 per share, and no shares of Company Common Stock were reserved for issuance upon the exercise or payment of stock units or other equity-based incentive awards granted pursuant to any plans, agreements or arrangements of Company and outstanding on such date (collectively, the “Company Stock Awards”), (3) no shares of Company Common Stock were reserved for issuance upon the conversion of any convertible notes, (4) no shares of Company Common Stock were reserved for issuance upon exercise of the Company Warrants and (5) no shares of Company Common Stock were held by Company in its treasury or by its Subsidiaries; and (B) no shares of Company Preferred Stock were issued and outstanding;
(b) As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) or reserved for issuance. All outstanding shares of Company Common Stock have been duly authorized and validly issued and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding .
(ii) Section 3.2(b)(ii) of the Company Disclosure Schedule sets forth a complete and accurate list as of September 24, 2007 of each Company Option then outstanding, the name of the holder thereof, the number of shares of Company Common Stock have been subject to such Company Option and the exercise or purchase price (if any) and the expiration date thereof. As of September 24, 2007, Company had no Company Warrants then outstanding.
(iii) No Voting Debt of Company is issued and granted or outstanding.
(iv) Except for (A) this Agreement, (B) outstanding Company Stock Awards described in compliance in all material respects with paragraph (i) applicable above, and (C) agreements entered into and securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As instruments issued after the date of the close of business on the Measurement Date, except this Agreement as set forth in this permitted by Section 4.2 and in the Transaction Support Agreement4.2, there are no outstanding options, warrants warrants, calls, rights, commitments or other rights agreements of any character to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2) no securities of the which Company or any Subsidiary of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company is a party or by which it or any such Subsidiary is bound in any case obligating the Company or any Subsidiary of the Company to issue, deliver, deliver or sell, purchase, redeem or acquire, or cause to be issued, delivered, delivered or sold, purchased, redeemed or acquired, additional shares of Company Capital Stock capital stock or any Voting Debt or other voting securities stock appreciation rights or ownership interests of the Company, Company or of any Subsidiary of Company or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support AgreementThere are no outstanding contractual obligations of Company or any of its Subsidiaries (x) to repurchase, there are not redeem or otherwise acquire any stockholder agreementsshares of capital stock, voting trusts securities or other agreements ownership interest of Company or any of its Subsidiaries or (y) pursuant to which the Company or any of its Subsidiaries is a party or could be required to register shares of Company Common Stock or other securities under the Securities Act, except any such contractual obligations entered into after the date hereof as permitted by which it is bound relating Section 4.2 or as listed in Section 3.2(b)(iv) of the Company Disclosure Schedule.
(v) Since September 24, 2007, except as permitted by Section 4.2, Company has not (A) issued or permitted to the voting of be issued any shares of capital stock, stock appreciation rights or other equity interest securities exercisable or exchangeable for or convertible into shares of the capital stock, of Company or any of its Subsidiaries. No Subsidiary , other than pursuant to and as required by the terms of Company Stock Awards granted prior to the date hereof (or awards granted after the date hereof in compliance with Sections 4.2(c) and 4.2(k)); (B) repurchased, redeemed or otherwise acquired, directly or indirectly through one or more Company owns Subsidiaries, any shares of Company Common Stock or any other shares capital stock of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor or any of its Subsidiaries has any Subsidiaries; or (iC) interests in a material joint venture ordeclared, directly set aside, made or indirectly, equity securities paid to the stockholders of Company dividends or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed distributions on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 2 contracts
Sources: Merger Agreement (Traffix Inc), Merger Agreement (New Motion, Inc.)
Capital Structure. (a) As of the date of this AgreementEffective Time, the authorized capital stock of the Company consists will consist of (i) 8,000,000 100,000,000 shares of Company Common Stock and (ii) 75,000,000 shares of preferred stockStock, par value $0.001 .01 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”)share. At the close of business on November 6October 27, 2020 1997, (the “Measurement Date”): (Ai) 4,305,119 15,732,191 shares of Company Common Stock were issued and outstanding, all of which were validly issued, fully paid and nonassessable and free of preemptive rights, (Bii) no 21,555,068 shares of Company Preferred Common Stock were issued held in the treasury of the Company or by the Subsidiaries of the Company, and outstanding;
(biii) not more than 2,564,130 shares of Company Common Stock were reserved for future issuance pursuant to the Company's 1993 Stock Incentive Plan, 1993 Directors' Stock Option Plan and 1996 Directors' Stock Compensation Plan, or pursuant to any plans assumed by the Company in connection with any acquisition, business combination or similar transaction (collectively, the "Company Stock Plans"). As of the date of this Agreement, there are 58,775 except for stock options covering not in excess of 1,219,532 shares of Company Common Stock subject to outstanding issued under the Company Stock Awards Plans (collectively, the "Company Stock Options") and 12,182 shares of Company Common securities issuable under the 1996 Directors' Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issuedCompensation Plan, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of 1994 Employee Stock Purchase Plan and the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company Rights Plan (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(iihereinafter defined), there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it any of them is bound relating obligating the Company or any of its Subsidiaries to the voting of any issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interest of the Company or any of its SubsidiariesSubsidiaries or securities convertible into or exchangeable for such capital stock, or obligating the Company or any of its Subsidiaries to grant, extend or enter into any such option, warrant, call, right or agreement. No Subsidiary Except as disclosed in the Company SEC Documents filed prior to the date hereof (as hereinafter defined), since October 27, 1997, the Company has not issued any shares of its capital stock, or securities convertible into or exchangeable for such capital stock, other than shares issued in the ordinary course pursuant to the Company Stock Plans and the accompanying rights issued pursuant to the Company Rights Agreement. Except as disclosed in the Company SEC Documents filed prior to the date hereof, there are no outstanding contractual obligations of the Company owns or any of the Company's Subsidiaries (i) restricting the transfer of, (ii) affecting the voting rights of, (iii) requiring the repurchase, redemption or disposition of, (iv) requiring the registration for sale of, or (v) granting any preemptive or antidilutive right with respect to, any shares of Company Common Stock or any other shares capital stock of Company Capital Stock.
(d) As any Subsidiary of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and Company. Each outstanding shares share of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Companythat is a corporation is duly authorized, directly or indirectlyvalidly issued, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights, and except as disclosed in the Company SEC Documents filed prior to the date hereof, each such share is 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.
Appears in 2 contracts
Sources: Merger Agreement (Proffitts Inc), Merger Agreement (Carson Pirie Scott & Co /Il/)
Capital Structure. (ai) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 90,000,000 shares of Company capital stock, consisting of (A) 85,000,000 shares of Common Stock and (iiB) 75,000,000 5,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6, 2020 (the “Measurement Date”): (A) 4,305,119 shares of Company Common Stock were issued and outstanding, and (B) no shares of Company Preferred Stock were issued and outstanding;
(b) As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on May 27, 2025 (the Measurement Date“Reference Time”): (1) no shares of Preferred Stock were issued and outstanding, (2) 4,325,290 shares of Common Stock were issued and outstanding (including 175,095 Company Restricted Shares and 4,150,195 shares that are not Company Restricted Shares), (3) 2,997 shares of Common Stock were subject to outstanding Company Options, and (4) 237,027 shares of Common Stock were subject to outstanding Company Warrants. Other than the Company Securities described in the preceding sentence, as of the Reference Time, the Company had no other Company Securities issued or outstanding. Except as set forth on Section 5.1(b)(i) of the Company Disclosure Schedule, since the Reference Time, the Company has not issued any Company Securities (including derivative or convertible securities) except for (x) shares of Common Stock issued as the result of the exercise of Company Options outstanding as of the Reference Time in accordance with their terms as in effect at such time, or (y) shares of Common Stock issued as a result of the exercise of Company Warrants outstanding as of the Reference Time in accordance with their terms as in effect at such time.
(ii) Section 5.1(b)(ii) of the Company Disclosure Schedule sets forth a complete and accurate list as of the Reference Time, of all outstanding Company Options and Company Restricted Shares granted under the Company Equity Plans (the “Company Equity Awards”), indicating, with respect to each Company Equity Award then outstanding, the name of the holder thereof, the type of award granted, the number of shares of Common Stock subject to such Company Equity Award, the Company Equity Plan under which such Company Equity Award was granted, the date of grant or issuance, the vesting schedule, any performance targets or similar conditions to the vesting, exercisability or settlement thereof, the 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. All outstanding Company Equity Awards have been granted pursuant award agreements substantially in the forms filed as exhibits to the Company’s Form 10-K for the fiscal year ended January 31, 2025 or otherwise provided or made available to Parent.
(iii) Section 5.1(b)(iii) of the Company Disclosure Schedule sets forth a complete and accurate list as of the Reference Time, of all outstanding Company Warrants and the number of shares of Common Stock reserved for future issuance pursuant to Company Warrants, the name of the holder thereof, the agreement or other document under which such Company Warrants were granted, the exercise price, the date of grant, and the expiration date thereof. All outstanding Company Warrants are substantially in the form filed as an exhibit to the Company’s Form 10-K for the fiscal year ended January 31, 2025.
(iv) All of the outstanding shares of Common Stock and other outstanding Company Securities were duly authorized and validly issued in accordance with the Company’s organizational documents and are fully paid and nonassessable. All of the outstanding shares of Common Stock and other outstanding Company Securities have been issued in compliance in all material respects with any applicable securities Laws or preemptive rights, rights of first refusal or other similar rights of any Person.
(v) Section 5.1(b)(v) of the Company Disclosure Schedule sets forth a complete and accurate list of all of the Company’s Subsidiaries and the ownership interest of the Company in each such Subsidiary, together with the jurisdiction of incorporation or formation of each such Subsidiary and the ownership interest of any other Person or Persons in each such Subsidiary. Other than the Company Securities set forth in Section 5.1(b)(v) of the Company Disclosure Schedule, there are no other Company Securities in the Company’s Subsidiaries issued or outstanding. All of the issued and outstanding equity interests and other Company Securities in each of 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 been issued in compliance in all material respects with any applicable securities Laws or preemptive rights, rights of first refusal or other similar rights of any Person. The Company owns, directly or indirectly, all of the outstanding equity interests and other Company Securities in each of its Subsidiaries free and clear of all Liens other than (A) transfer restrictions imposed by federal and state securities Laws, (B) those arising under the Existing Credit Facility, and (C) any transfer restrictions contained in the organizational documents of the Company and its Subsidiaries.
(vi) Except as set forth in this the organizational documents of the Company, or as otherwise provided in Section 4.2 and in 5.1(b)(i) or Section 5.1(b)(vi) of the Transaction Support AgreementCompany Disclosure Schedule, there are no preemptive rights or other outstanding rights, options, warrants warrants, conversion rights, stock appreciation rights, phantom equity interests, redemption rights, repurchase rights, agreements, arrangements, calls, subscription agreements, commitments or other rights to subscribe for, purchase or acquire from of any kind that obligate the Company or any of its Subsidiaries to redeem, repurchase, acquire, issue, grant or sell, or giving any capital stock of the Company Person a right to subscribe for or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exerciseacquire, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other any equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2) no securities of the Company or any Subsidiary of its Subsidiaries or any other Company Securities, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(vii) Neither the Company nor any of its Subsidiaries have any outstanding bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exchangeable or exercisable for shares securities having the right to vote) with the holders of Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which equity interests in the Company or any Subsidiary of its Subsidiaries on any matter.
(viii) Other than the Support Agreements, Section 5.1(b)(viii) of the Company is Disclosure Schedule sets forth a party or by which it is bound in any case obligating the Company or any Subsidiary complete and accurate list as of the Company to issue, deliver, sell, purchase, redeem or acquire, or cause to be issued, delivered, sold, purchased, redeemed or acquired, additional shares date hereof of Company Capital Stock or any Voting Debt or other all voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreementstrusts, voting trusts proxies or other agreements or understandings to which the Company or any of its Subsidiaries is a party or by which it is bound relating with respect to the voting of or registration of, any Person’s other rights with respect to, the shares of capital stock Common Stock or other equity interest interests or Company Securities of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(dix) As of the date of this Agreement, neither Neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture orowns, directly or indirectly, any equity securities or long-term debt securities of any other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure LetterPerson.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 2 contracts
Sources: Merger Agreement (Streamline Health Solutions Inc.), Merger Agreement (Streamline Health Solutions Inc.)
Capital Structure. (a) As of the date of this Agreement, the authorized capital stock of the Company consists of (i) 8,000,000 shares of 250,000,000 Company Common Stock and (ii) 75,000,000 shares Shares, of preferred stock, par value $0.001 per share (“Company Preferred Stock” and, together with the which 72,170,192 Company Common Stock, the “Company Capital Stock”). At Shares were issued and outstanding as of the close of business on November 6May 1, 2020 2000, and 10,000,000 shares of Preference Stock, par value $.01 per share (the “Measurement Date”): "Company Preference Shares"). Of the authorized Company Preference Shares, (Ai) 4,305,119 2,500,000 shares have been designated as Cumulative Participating Junior Preferred Stock, of which no shares are issued or outstanding as of the date of this Agreement but of which all have been reserved for issuance pursuant to the Rights Agreement, dated May 1, 1998, between the Company Common Stock were issued and outstandingThe Bank of New York, as rights agent (the "Rights Agreement"), and (Bii) no 50,000 shares have been designated as Company Money Market Preferred Shares, of Company Preferred Stock were which 87 shares are issued and outstanding;
(b) outstanding as of the date of this Agreement. All of the outstanding Company Common Shares and Company Preference Shares have been duly authorized and validly issued and are fully paid and nonassessable. As of the date of this Agreement, there are 58,775 shares of the Company has no Company Common Stock Shares or Company Preference Shares reserved for or otherwise subject to outstanding issuance, except (i) no more than 25,306,605 Company Common Shares subject to issuance pursuant to Company Stock Awards Options outstanding as of the date of this Agreement (and 12,182 shares the weighted average exercise price of those Company Common Stock subject Options and the plans or agreements pursuant to outstanding which those Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock Options have been issued and granted (the "Company Stock Plans") are set forth in compliance in all material respects with (iSection 2.1.2 of the Company Disclosure Schedule) applicable securities Laws and other applicable Law and (ii) all requirements set forth no more than 3,918,900 Company Common Shares subject to issuance upon conversion of the Company's 3% convertible subordinated notes due January 15, 2005 ("Company Convertible Notes"). The Company Stock Options outstanding as of the date of this Agreement (and identified in applicable ContractsSection 2.1.2 of the Company Disclosure Schedule) exercisable for up to 2,200,000 of the Company Common Shares referenced in clause (i) of the prior sentence will not vest or become exercisable as a result of the execution of this Agreement or the consummation of the transactions contemplated by this Agreement. As of From the close of business on May 1, 2000 until the Measurement Date, except as set forth in date of this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company has not issued, granted or sold any Company Common Shares other than pursuant to the exercise of its Subsidiaries any capital stock Company Stock Options.
(b) Each of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity ownership interests of the Subsidiaries each of the Company are Company's Subsidiaries that constitute a Significant Subsidiary is duly authorized, validly issued, fully paid and nonassessable and owned by the Company, Company or a direct or indirect wholly owned Subsidiary of the Company, are in each case free and clear of all Encumbrancesany lien, pledge, security interest, claim or other than Permitted Encumbrancesencumbrance, and except as would not, individually or in the aggregate, have been duly authorized, validly issued, fully paid and nonassessablea Material Adverse Effect on the Company. Except as set forth in Section 2.1.2(a), as of the date of this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii)Agreement, there are outstanding: (1) no shares of Company Capital Stock, Voting Debt preemptive 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 Company Capital Stockoutstanding rights, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptionsconversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, rights (including preemptive and appreciation rights), commitments or agreements to rights of any kind which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which obligate the Company or any of its Material Subsidiaries is a party to issue or by which it is bound relating to the voting of sell any shares of capital stock or other equity interest securities of the Company or any of its Material Subsidiaries or any securities or obligations convertible or exchangeable into or exercisable for, or giving any Person a right to subscribe for or acquire from the Company or any of its Material Subsidiaries. No Subsidiary , any securities of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As its Material Subsidiaries, and no securities or obligations evidencing any rights are authorized, issued or outstanding. Except as set forth in Section 2.1.2(a), as of the date of this Agreement, neither the Company nor does not have outstanding any of its Subsidiaries has any (i) interests in a material joint venture orbonds, directly or indirectlydebentures, equity securities notes or other similar equity interests in any Person obligations the holders of which have the right to vote (or (iiwhich are convertible, exchangeable or exercisable for or into securities having the right to vote) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 with the stockholders of the Company Disclosure Letteron any matter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 2 contracts
Sources: Merger Agreement (Young & Rubicam Inc), Merger Agreement (WPP Group PLC)
Capital Structure. (ai) As of the date of this Agreement, the The authorized capital stock of the Company consists of (iA) 8,000,000 300,000,000 shares of Company Common Stock Stock, of which 153,925,933 shares were outstanding as of September 30, 2003 and (iiB) 75,000,000 50,000,000 shares of preferred stockPreferred Stock, par value $0.001 0.01 per share (“Company Preferred Stock” andshare, together with the Company Common Stock, the “Company Capital Stock”)none of which are outstanding. At the close of business on November 6, 2020 (the “Measurement Date”): (A) 4,305,119 shares of Except for Company Common Stock were issued and outstanding, and (B) no shares upon exercise of Company Preferred Stock were issued and outstanding;
(b) As of the date of this AgreementOptions, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding no shares of Company Common Stock have been issued between September 30, 2003 and granted in compliance in all material respects with (i) applicable securities Laws the date hereof. All issued and other applicable Law and (ii) all requirements set forth in applicable Contracts. As outstanding shares of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable, and no class of capital stock is entitled to (or has been issued in violation of) preemptive rights. Except Other than 1,377,381 shares of Company Common Stock reserved for issuance under the Company ESPP (as defined in Section 4.1(b)), there were outstanding as of the date hereof no options, warrants or other rights to acquire capital stock from Company other than the Company Stock Options representing in the aggregate the right to purchase no more than 20,182,509 shares of Company Common Stock under the Company Stock Plan or otherwise. Section 3.2(b) of the Company Disclosure Schedule sets forth a complete and correct list of (x) as of October 21, 2003, the number of shares of Company Common Stock subject to Company Stock Options or other rights to purchase or receive Company Common Stock granted under the Company Stock Plans or otherwise, and the date of grant, vesting date, expiration date, exercise price and holder of each such Company Stock Option, (y) as of October 21, 2003, the number of shares of restricted Company Common Stock and deferred share rights outstanding, and the date of grant, vesting date, expiration date and holder of each such share of restricted Company Common Stock or deferred share rights and (z) the total amount of deductions withheld for the semi-annual offering period ending December 31, 2003, with respect to purchases to be made pursuant to the Company ESPP. Upon any issuance of such shares of Company Common Stock as set forth in this Section 4.23.2(b) of the Company Disclosure Schedule, such shares of Company Common Stock will be duly authorized, validly issued, fully paid and except for changes since the Measurement Date resulting from the exercise nonassessable and free and clear of stock options outstanding at such dateany Lien, or stock grants pledge, security interest, claim or other awards granted in accordance with Section 6.1(b)(ii)encumbrance. As of the date hereof, there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder shareholder agreements, voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of the capital stock of Company.
(ii) No bonds, debentures, notes or other equity interest indebtedness of Company having the right to vote on any matters on which stockholders may vote, are issued or outstanding.
(iii) Except as otherwise set forth in this Section 3.2(b) or as set forth in Section 3.2(b) of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As Disclosure Schedule, as of the date of this Agreement, neither the there are no securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which Company nor or any of its Subsidiaries has is a party or by which any (i) interests in a material joint venture or, directly of them is bound obligating Company or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than of its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letterto issue, all of the issued and outstanding deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity ownership interests voting securities of each Subsidiary Company or any of the its Subsidiaries or obligating Company are owned by the Companyor any of its Subsidiaries to issue, directly grant, extend or indirectlyenter into any such security, all such shares option, warrant, call, right, commitment, agreement, arrangement or equity ownership interests are undertaking. Except as set forth in Schedule 4.2 Section 3.2(b) of the Company Disclosure LetterSchedule, and all there are no outstanding obligations of such Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of Company or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free any of preemptive rightsits Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Anthem Inc), Merger Agreement (Wellpoint Health Networks Inc /De/)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 60,000,000 shares of Company Common Stock and (ii) 75,000,000 10,000,000 shares of preferred stock, par value $0.001 per share (“"Company Preferred Stock” and"). Of the 10,000,000 shares of Company Preferred Stock that are authorized for issuance, together with 1,000,000 shares have been designated as Series A Junior Participating Preferred Stock and have been reserved for issuance under the Company's Rights Agreement, dated as of October 17, 2002, between the Company Common Stockand Mellon Investor Services LLC, as amended (the “Company Capital Stock”"Rights Agreement"). At As of the close of business on November 6date hereof, 2020 (the “Measurement Date”): (Ai) 4,305,119 15,939,155 shares of Company Common Stock were are issued and outstandingoutstanding (none of which are subject to repurchase options in favor of the Company by reason of having been originally issued as restricted shares), (ii) 233,731 shares of Company Common Stock are issued and held by the Company in its treasury and (Biii) no shares of Company Preferred Stock were 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 April 16, 2004, 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 outstanding under the Stock Plans prior to such date.
(b) As of the date of this Agreement, there are 58,775 Agreement and regarding options to purchase shares of Company Common Stock subject to outstanding (each an "Option") under the Company's 1993 Stock Option/Stock Issuance Plan (the "1993 Plan") or Special Non-Officer Stock Option Plan (the "1997 Plan" and collectively with the 1993 Plan, the "Stock Plans"):
(i) The Company Stock Awards and 12,182 has reserved 6,200,000 shares of Company Common Stock for issuance to employees, consultants and directors pursuant to the 1993 Plan, of which (i) 1,146,632 vested shares have been issued pursuant to option exercises, (ii) 2,982,268 shares are subject to outstanding, unexercised options, and (iii) 678,893 shares remain available for issuance thereunder;
(ii) The Company has reserved 675,000 shares of Company Common Stock for issuance to non-officer and non-director employees pursuant to the Company's 1997 Plan, of which (i) 61,348 vested shares have been issued pursuant to option exercises, (ii) 375,808 shares are subject to outstanding, unexercised options, and (iii) 237,844 shares remain available for issuance thereunder; and
(iii) There are outstanding Share Rights Awards for the issuance of 339,897 shares of Company RSU AwardsCommon Stock, which such number of shares the Company has reserved for issuance thereunder.
(c) All outstanding shares of the Company's capital stock were duly authorized, validly issued, and are 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, Bylaws 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's Subsidiaries were duly authorized, validly issued, and are fully paid and nonassessable, and all such shares (other than directors' qualifying shares in the case of foreign Subsidiaries, all of which are scheduled on Section 3.3(c) of the Company Disclosure Schedule) are owned by the Company or a Subsidiary of the Company free and clear of all Liens. There are no accrued and unpaid dividends with respect to any outstanding shares of capital stock of the Company or any of its Subsidiaries.
(d) The Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares the Rights (as such term is defined in the Rights Agreement) constitute the only classes of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close Company or its Subsidiaries registered or required to be registered under the Securities Exchange Act of business on 1934, as amended (the Measurement Date"Exchange Act").
(e) The Company is not a party to or bound by any agreement with respect to the voting (including voting trusts or proxies), except as set forth in this Section 4.2 and in registration under the Transaction Support AgreementSecurities Act, or sale or transfer (including agreements relating to pre-emptive rights, rights of first refusal, co-sale rights or "drag-along" rights) of any securities of the Company or its Subsidiaries. To the Knowledge of the Company, there are no outstanding optionsagreements among other parties, warrants to which the Company is not a party and by which it is not bound, with respect to the voting (including voting trusts or other proxies) or sale or transfer (including agreements relating to rights to subscribe forof first refusal, purchase co-sale rights or acquire from "drag-along" rights) of any securities of the Company or its Subsidiaries.
(f) Except as described in this Section 3.3 or as contemplated by Sections 2.1(d) or 2.1(e), no capital stock of the Company or any of its Subsidiaries or any capital stock of the Company or securities security convertible into or exchangeable into or exercisable for such capital stock stock, is issued, reserved for issuance or outstanding as of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares date of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessablethis Agreement. Except as set forth described in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, 3.3 or stock grants as contemplated by Sections 2.1(d) or other awards granted in accordance with Section 6.1(b)(ii2.1(e), there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, preemptive rights, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements of any kind to which the Company or any Subsidiary of the Company its Subsidiaries is a party party, or by which it the Company or any of its Subsidiaries is bound in any case bound, obligating the Company or any Subsidiary of the Company it Subsidiaries to issue, deliver, deliver or sell, purchase, redeem or acquire, or cause to be issued, delivered, delivered or sold, purchased, redeemed or acquired, additional shares of capital stock of the Company Capital Stock or any Voting Debt or other voting securities of the Company, its Subsidiaries or obligating the Company or any Subsidiary of the Company its Subsidiaries to grant, extend or accelerate the vesting of or otherwise amend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than Except for the Transaction Support AgreementCompany's repurchase rights with respect to unvested shares issued under the Stock Plans, there are not no rights or obligations, contingent or otherwise (including rights of first refusal in favor of the Company), of the Company or any stockholder agreementsof its Subsidiaries, voting trusts to repurchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its Subsidiaries or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any such Subsidiary or any other Person. There are no registration rights or other agreements or understandings to which the Company or any of its Subsidiaries is a party or by which it is or they are bound relating with respect to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary .
(g) The Board of Directors of the Company owns any shares has taken all action necessary (including resolving to amend the Rights Agreement prior the date hereof, and a copy of Company Common Stock such amendment has been provided to Parent prior to the date hereof) in order to render the Rights Agreement and the Rights 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 any will occur as a result of the approval, execution or delivery of this Agreement or the consummation of the Merger and the other shares transactions contemplated hereby, (B) neither Parent nor Merger Sub has become or will be an "Acquiring Person" (as such term is defined in the Rights Agreement) solely as a result of Company Capital Stockentering into, performing the terms of or consummating the transactions contemplated by this Agreement, (C) the "Expiration Date" (as such term is defined in the Rights Agreement) will occur at the moment in time immediately prior to the occurrence of the Effective Time, and (D) the Rights Agreement will otherwise be inapplicable to Parent and Merger Sub while this Agreement is in effect with respect to performing the terms of or consummating the transactions contemplated by this Agreement.
(dh) As of Notwithstanding the date of this Agreement, neither proxy statement delivered by the Company nor to its stockholders, and any of its Subsidiaries has any (i) interests approvals obtained at or in a material joint venture orconnection with the Company's 2004 annual stockholders meeting, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth does not have any obligation to, and does not intend to, implement, establish or put in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by place the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights's 2004 Employee Stock Purchase Plan proposed for approval thereat.
Appears in 2 contracts
Sources: Merger Agreement (QRS Corp), Agreement and Plan of Merger (QRS Corp)
Capital Structure. (a) As of the date close of this Agreementbusiness on April 29, 2013 (the “Capitalization Date”), the authorized capital stock of the Company consists consisted of (i) 8,000,000 200,000,000 shares of Company Common Stock and (ii) 75,000,000 shares of preferred stockStock, par value $0.001 per share, of which 46,623,161 shares were outstanding (inclusive of 1,982,687 shares of unvested Company Restricted Stock granted pursuant to the Company Stock Plans) and 267,781 shares were held in the treasury of the Company and (ii) 10,000,000 shares of preferred stock of the Company, par value $0.01 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close , of business on November 6, 2020 (the “Measurement Date”): (A) 4,305,119 shares of Company Common Stock were issued and outstanding, and (B) which no shares of Company Preferred Stock were issued and outstanding;
(b) As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there There are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any classes of its Subsidiaries any capital stock of the Company authorized or securities convertible into or exchangeable or exercisable for outstanding. All issued and outstanding shares of the capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessablenon-assessable, and no class of capital stock is entitled to preemptive rights.
(b) From the close of business on the Capitalization Date through the date of this Agreement, there have been no issuances of shares of the capital stock or equity securities of the Company or any other securities of the Company other than issuances of shares of Company Common Stock pursuant to the exercise of Company Stock Options outstanding as of the Capitalization Date under the Company Stock Plans. There were outstanding as of the Capitalization Date, no options, warrants, calls, commitments, agreements, arrangements, undertakings or any other rights to acquire capital stock from the Company other than Company Stock Options as set forth in Section 3.2(b) of the Company Disclosure Letter. Section 3.2(b) of the Company Disclosure Letter sets forth a complete and correct list, as of the Capitalization Date, of the number of shares of Company Common Stock subject to Company Stock Options, Company Restricted Stock or any other rights to purchase or receive Company Common Stock granted under the Company Stock Plans or otherwise, the dates of grant, the extent to which such options are vested and, where applicable, the exercise prices thereof. Except as set forth in this Section 4.23.2(b) of the Company Disclosure Letter, and except for changes since the Measurement Capitalization Date resulting from through the exercise date of stock options outstanding at such datethis Agreement, the Company has not issued or awarded, or authorized the issuance or award of, any options, restricted stock grants or other equity-based awards granted in accordance with Section 6.1(b)(ii)under the Company Stock Plans or otherwise. Immediately prior to the Closing, there are outstanding: (1) no the Company will have provided to Parent a complete and correct list, as of the Closing, of the number of shares of Company Capital StockCommon Stock subject to Company Stock Options, Voting Debt Company Restricted Stock or any other voting securities of the Company; (2) no securities of rights to purchase or receive Company Common Stock granted under the Company Stock Plans or any Subsidiary otherwise, the dates of grant, the Company convertible into or exchangeable or exercisable for shares of Company Capital Stockextent to which such options are vested and, Voting Debt or other voting securities of where applicable, the Company; and (3) no exercise prices thereof. No options, warrants, subscriptionsrestricted stock units, calls, rights (including preemptive and appreciation rights)commitments, commitments or agreements to which the Company or any Subsidiary of the Company is a party or by which it is bound in any case obligating the Company or any Subsidiary of the Company to issueagreements, deliverarrangements, 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 undertakings or other voting securities of rights to acquire capital stock from the Company, or obligating other equity-based awards, have been issued or granted on or after the Company Capitalization Date through the date of this Agreement.
(c) No bonds, debentures, notes or any Subsidiary other Indebtedness of the Company having the right to grantvote (or convertible into or exercisable for securities having the right to vote) on any matters on which holders of capital stock of the Company may vote are issued or outstanding.
(d) Except as otherwise set forth in this Section 3.2 or in Section 3.2(d) of the Company Disclosure Letter, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than as of the Transaction Support date of this Agreement, (i) there are not any stockholder agreements, voting trusts or other agreements to which no outstanding obligations of the Company or any of its Subsidiaries is a party to repurchase, redeem or by which it is bound relating to the voting of otherwise acquire any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary Subsidiaries except for purchases, redemptions or other acquisitions of capital stock or other securities (A) required by the terms of the Company owns any shares Benefit Plans, (B) in order to pay Taxes or satisfy withholding obligations in respect of such Taxes in connection with the exercise of Company Common Stock Options or any other shares the vesting of Company Capital Restricted Stock.
, or (dC) As of as required by the terms of, or necessary for the administration of, any plans, arrangements or agreements existing on the date of this Agreement, neither Agreement between the Company nor or any of its Subsidiaries has and any (i) interests in a material joint venture or, directly director or indirectly, equity securities employee of the Company or other similar equity interests in any Person or of its Subsidiaries and (ii) obligationsthere are no outstanding stock-appreciation rights, whether security-based performance units, shares of “phantom” stock or other security rights or other agreements, arrangements or commitments of any character (contingent or otherwise, ) pursuant to consummate any material additional investment in which any Person is or may be entitled to receive any payment or other than its Subsidiaries and its joint ventures listed value based on Schedule 4.2 the stock price performance of the Company Disclosure Letteror any of its Subsidiaries (other than under the Company Stock Plans) or to cause the Company or any of its Subsidiaries to file a registration statement under the Securities Act of 1933, as amended (the “Securities Act”).
(e) Except as set forth in Schedule 4.2 this Section 3.2 or in Section 3.2(e) of the Company Disclosure Letter, as of the date of this Agreement, there are no outstanding obligations of the Company or any of its Subsidiaries (i) restricting the transfer of, (ii) affecting the voting rights of, (iii) requiring the sale, issuance, repurchase, redemption or disposition of, or containing any right of first refusal with respect to, (iv) requiring the registration for sale of or (v) granting any preemptive or antidilutive rights with respect to any shares of Company Common Stock, Company Preferred Stock or other Equity Interests in the Company or any of its Subsidiaries.
(f) Section 3.2(f) of the Company Disclosure Letter sets forth, as of the date of this Agreement, for each of the Company’s Subsidiaries, (i) its authorized capital stock or other Equity Interests, (ii) the number of its outstanding shares of capital stock or other Equity Interests and type(s) of such outstanding shares of capital stock or other Equity Interests and (iii) the record owner(s) thereof. The Company owns directly or indirectly, beneficially and of record, all of the issued and outstanding shares of capital stock or other equity ownership interests Equity Interests of each Subsidiary of the Company are owned by the Company’s Subsidiaries, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 free and clear of the Company Disclosure Letterany Liens other than Permitted Liens, and all of such shares of capital stock or equity ownership interests are other Equity Interests have been duly authorized and validly issued and are fully paid, nonassessable non-assessable and free of preemptive rights. Except for the ownership of Equity Interests in (A) the Company’s Subsidiaries and Related Entities and (B) investments in marketable securities and cash equivalents, none of the Company or any of its Subsidiaries owns directly or indirectly any Equity Interest in any Person, or has any obligation or has made any commitment to acquire any such Equity Interest, to provide funds to, or to make any investment (in the form of a loan, capital contribution or otherwise) in, any of its Subsidiaries or any other Person that is or would reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole. No Subsidiary of the Company owns any Company Common Stock or other Equity Interest in the Company.
Appears in 2 contracts
Sources: Merger Agreement (Contango Oil & Gas Co), Merger Agreement (Crimson Exploration Inc.)
Capital Structure. (a) As There are 245,000,000 shares of the date of this Agreement, the authorized capital stock of the Company consists authorized, comprised of (i) 8,000,000 shares of 200,000,000 Company Common Stock Shares, of which 160,000,000 are issued and outstanding as of the date hereof and (ii) 75,000,000 45,000,000 Company Preferred Shares, none of which are issued and outstanding as of the date hereof. As of immediately prior to the issuance of the Series A Preferred Stock of the Company pursuant to the terms of the Debt Exchange Agreement, but following the filing of the Company Certificate of Designations (as defined below), in each case as contemplated by the Debt Exchange Agreement, there will be 245,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock” and, together with capital stock of the Company Common Stockauthorized, the “Company Capital Stock”). At the close comprised of business on November 6, 2020 (the “Measurement Date”): (A) 4,305,119 shares of 200,000,000 authorized Company Common Stock were Shares of which 160,000,000 are and will be issued and outstanding, outstanding as of immediately prior to the Effective Time and (B) no shares of 45,000,000 authorized Company Preferred Shares, of which not more than 6,000,000 shares will be designated and issued as Series A Preferred Stock were pursuant to the terms of the Debt Exchange Agreement as of immediately prior to the Effective Time. All of the issued and outstanding;
(b) As of the date of this Agreement, there are 58,775 shares of outstanding Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock Shares have been duly authorized and are validly issued, are fully paid and non-assessable assessable, and are not subject to any preemptive rights. All outstanding shares of Company Common Stock rights and have not been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contractsviolation of any preemptive or similar rights of any Person. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letterhereof, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company Common Shares are owned legally and beneficially by the Company, directly or indirectly, all such shares or equity ownership interests are Persons set forth in on Schedule 4.2 5.5(a) of the Company Disclosure LetterSchedules. Except for the Company Common Shares and the Company Preferred Shares, and all no other class in the share capital of such shares the Company is authorized or equity ownership interests issued or outstanding.
(b) Except as set forth on Schedule 5.5(b) of the Company Disclosure Schedules, there are duly authorized and validly issued and are fully paidno: (i) outstanding options to purchase Company Common Shares; (ii) outstanding subscriptions, nonassessable and free options, warrants, rights (including phantom stock rights), calls, commitments, understandings, conversion rights, rights of preemptive rightsexchange, plans or other agreements of any kind providing for the purchase, issuance or sale of any share of the Company; or (iii) agreements with respect to any of the Company Common Shares, including any voting trust, other voting agreement or proxy with respect thereto.
Appears in 2 contracts
Sources: Merger Agreement (Scilex Holding Co), Merger Agreement (Scilex Holding Co)
Capital Structure. (ai) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 shares 500,000,000 Company Shares. As of April 30, 1998, 180,000,000 Company Common Stock and (ii) 75,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6, 2020 (the “Measurement Date”): (A) 4,305,119 shares of Company Common Stock Shares were issued and outstanding, and (B) no shares of Company Preferred Stock which 1,645,973 were held in the treasury relating to the options issued and outstanding;
(b) As of pursuant to the Share Option Schemes. Since April 30, 1998 to the date of this Agreement, there are 58,775 have been no issuances of shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or other securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, except as may be described in Schedule 3.1(e)(i) of the Company Disclosure Schedule in connection with the exercise or issuance of Company Stock Options. All Company Shares are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable, and no class of shares is entitled to preemptive rights, other than as provided by Dutch Law. There were outstanding as of April 30, 1998 no options, warrants or other rights, agreements, arrangements or commitments of any character to acquire shares from the Company other than options representing in the aggregate the right to acquire 4,186,328 Company Shares pursuant to the Share Option Schemes. Other than as may be described in Schedule 3.1(e)(i) of the Company Disclosure Schedule, since April 30, 1998 to the date of this Agreement, no options or warrants or other rights to acquire shares of the Company have been issued or granted and no agreements or commitments have been entered into by the Company to issue shares of the Company.
(ii) All issued and outstanding shares of capital stock, partnership interests, membership interests, joint venture interests and other equity interests of each of the Company's material Subsidiaries are duly authorized, validly issued, fully paid and nonassessable, and all such shares are owned by the Company or another Subsidiary of the Company free and clear of all Encumbrances, in each case other than as provided by Law or the terms of any applicable partnership or similar agreement as in effect on the date hereof.
(iii) No Company Voting Debt is issued or outstanding.
(iv) Except as otherwise set forth in this Section 4.23.2(d) or as permitted by this Agreement, and except for changes since other than, in the Measurement Date resulting from case of the exercise Company's non-material Subsidiaries, pursuant to the terms of stock options outstanding at such dateany partnership or similar agreement in effect on the date hereof, or stock grants or and other awards granted in accordance with Section 6.1(b)(ii)than as provided by Law, there are outstanding: (1) no shares of Company Capital Stocksecurities, 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company is a party or by which it is bound in any case obligating the Company or any Subsidiary of the Company to issuecommitments, 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts arrangements or other agreements undertakings of any kind to which the Company or any of its Subsidiaries is a party or by which it any of them is bound obligating the Company or any of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, any shares or other voting securities of the Company or any of its Subsidiaries or obligating the Company 34 27 or any of its Subsidiaries to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. There are no commitments, agreements, arrangements or undertakings of any kind relating to the Company's right to vote or dispose of shares or other voting securities of the Company or its Subsidiaries, other than, in the case of its Subsidiaries, pursuant to the terms of the articles of organization, by-laws or other organizational document of such entity (including such entity's partnership agreement, if such entity is a partnership) in effect on the date hereof, and other than as provided by Law. Except as permitted by this Agreement, there are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock or other equity interest interests of the Company or any of its Subsidiaries. No Subsidiary , other than, in the case of non-material Subsidiaries, pursuant to the Company owns any shares terms of Company Common Stock its articles of organization, by-laws or any other shares organizational document of Company Capital Stock.
such entity (dincluding such entity's partnership agreement if such entity is a partnership) As of in effect on the date of this Agreementhereof, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person and other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letteras provided by Law.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 2 contracts
Sources: Offer Agreement (Seagram Co LTD), Offer Agreement (Seagram Co LTD)
Capital Structure. (a) As of the date of this Agreement, the authorized capital stock of the Company consists of (i) 8,000,000 300,000,000 shares of Company Common Stock and (ii) 75,000,000 10,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6October 16, 2020 (the “Measurement Date”): 2020: (A) 4,305,119 196,305,223 shares of Company Common Stock were issued and outstanding, outstanding and (B) no shares of Company Preferred Stock were issued and outstanding;
; (bB) As of the date of this Agreement, there are 58,775 shares of Company Common Stock issued and outstanding include 1,763,753 subject to outstanding Company Restricted Stock Awards granted under the Company Stock Awards Plan; and 12,182 (C) 4,018,437 shares of Company Common Stock subject remained available for issuance pursuant to the Company Stock Plan, of which 488,888 shares (assuming satisfaction of applicable performance goals at the target level) or 1,466,664 shares (assuming satisfaction of applicable performance goals at the maximum level) of Company Common Stock were available for issuance pursuant to outstanding Company RSU Performance Unit Awards.
(cb) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contractscontracts (including the Company Stock Plan). As of the close of business on the Measurement DateOctober 16, 2020, except as set forth in this Section 4.2 and in the Transaction Support Agreement4.2, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly wholly-owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, Encumbrances and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted since the close of business on October 16, 2020 to the date of this Agreement or following the execution of this Agreement in accordance with Section 6.1(b)(ii), there are outstanding: (1A) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; , (2B) no securities of the Company or any Subsidiary of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stock, Voting Debt or other voting securities of the Company; Company and (3C) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there There are not any no stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is or they are bound relating to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(dc) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i1) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii2) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 4.2(c) of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 2 contracts
Sources: Merger Agreement (Conocophillips), Merger Agreement (Concho Resources Inc)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 shares 100,000,000 Shares, of Company Common Stock and (ii) 75,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6, 2020 (the “Measurement Date”): (A) 4,305,119 shares of Company Common Stock which 48,960,309 Shares were issued and outstanding, and (B) no shares of Company Preferred Stock were issued and outstanding;
(b) As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As as of the close of business on February 17, 2005, and 5,000,000 shares of Preferred Stock, $1.00 par value per share (the Measurement Date“Preferred Shares”), of which no shares were outstanding as of the close of business on February 17, 2005, and no Shares or Preferred Shares have been issued from such time to and including the date of this Agreement (other than pursuant to the exercise of Company Options (as defined below) issued prior to such time). All of the outstanding Shares have been duly authorized and validly issued and are fully paid and nonassessable. The Company has no Shares or Preferred Shares reserved for issuance, except that, as set forth in this Section 4.2 of February 17, 2005, there were 7,740,823 Shares reserved for issuance pursuant to the Company’s Amended and in Restated Stock Option and Restricted Stock Purchase Plan, 1999 Long-Term Incentive Plan, 2002 Long-Term Incentive Plan and the Transaction Support ESPP (collectively, the “Stock Plans”) and Shares reserved for issuance pursuant to the Stockholder Protection Rights Agreement, there are no outstanding optionsdated as of April 17, warrants or other rights to subscribe for2003, purchase or acquire from between the Company or any of its Subsidiaries any capital stock and American Stock Transfer & Trust Company, as Rights Agent (the “Rights Agreement”). Section 5.1(b) of the Company or securities convertible into or exchangeable or exercisable for capital stock Disclosure Letter contains a correct and complete list of each outstanding option to purchase Shares under the Stock Plans (each a “Company Option”) including, in each case, the holder, date of grant, exercise price and number of Shares subject thereto. Each of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity securities or interests of the Subsidiaries each of the Company’s Subsidiaries held by the Company are or a Company Subsidiary is duly authorized, validly issued, fully paid and nonassessable and owned by the Company, Company or by a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrancesany lien, pledge, security interest, claim or other than Permitted Encumbrancesencumbrance (collectively, and have been duly authorized, validly issued, fully paid and nonassessable“Liens”). Except as set forth in above and pursuant to the Rights Agreement, as of the date of this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii)Agreement, there are outstanding: (1) no shares of Company Capital Stock, Voting Debt preemptive rights 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no outstanding options, warrants, subscriptionsconversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or other rights of any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which kind that obligate the Company or any of its Subsidiaries is a party to issue or by which it is bound relating to the voting of sell any shares of capital stock or other equity interest securities of the Company or any of its Subsidiaries. No Subsidiary 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 the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has (“Rights”), and no securities or obligations evidencing Rights are authorized, issued or outstanding. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (ior convertible into or exercisable for securities having the right to vote) interests in a material joint venture orwith the stockholders of the Company on any matter. The Company does not own, directly or indirectly, equity securities any voting interest that would require a filing by Parent or other similar equity interests any “Affiliate” (as defined in any Person or Rule 12b-2 under the Securities Exchange Act of 1934, as amended (iithe “Exchange Act”)) obligationsof Parent under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of as amended (the Company Disclosure Letter“HSR Act”).
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 2 contracts
Sources: Merger Agreement (Accredo Health Inc), Merger Agreement (Medco Health Solutions Inc)
Capital Structure. (a) As of the date of this Agreementhereof, the authorized capital stock of the Company consists of (i) 8,000,000 90,100,000 shares of capital stock of which 90,000,000 are shares of Company Common Stock Stock, and (ii) 75,000,000 100,000 are shares of preferred stock, par value $0.001 1 per share share, of the Company (“"Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”"). At the close of business on November 6March 15, 2020 2001, (the “Measurement Date”): i) 50,413,400 shares of Company Common Stock (Aincluding associated Rights) 4,305,119 were issued and outstanding, all of which were validly issued, fully paid and nonassessable and free of preemptive rights, (ii) 1,092 shares of Company Common Stock were held in the treasury or by Subsidiaries of the Company; (iii) 8,013,681 shares of Company Common Stock were reserved for issuance pursuant to options to purchase shares of Company Common Stock ("Company Stock Options") issued and outstandingoutstanding pursuant to (A) the Company's Stock Option Plan, (B) the Company's Outside Director Stock Option Plan and (BC) the Bozell, Jacobs, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Inc. Stock Option Plan (collectively, the "Company Stock Option Plans") (with a weighted average exercise price between $28 and $29); (iv) an additional 868,912 shares of Company Common Stock were authorized (excluding shares subject to stockholder approval) for awards, but not yet issued; and (v) no shares of Company Preferred Stock were issued and or outstanding;
(b) As . Set forth in Section 3.2 of the letter dated the date hereof and delivered on the date hereof by the Company to Parent, which letter relates to this Agreement and is designated the Company Letter (the "Company Letter"), is a list of this Agreement, there each benefit plan of the Company or its Subsidiaries under which any securities of the Company are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) issuable or reserved for issuance. All the outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessablenonassessable and free of preemptive rights. Except As of the date of this Agreement, except for shares reserved or issuable in connection with the Rights Agreement, except as set forth above, except for the issuance of shares of Company Common Stock upon the exercise of Company Stock Options and except as set forth in this Section 4.23.2 of the Company Letter, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt capital stock or other voting securities of the Company; Company were issued, reserved for issuance or outstanding. As of the date hereof, except (2i) no as set forth above, (ii) for options, warrants, calls, rights, puts and agreements that relate to securities of Subsidiaries other than Significant Subsidiaries with exercise or purchase prices that, in the aggregate, do not exceed $25 million and that are not referenced in Section 3.2 of the Company or any Subsidiary Letter and (iii) as set forth in Section 3.2 of the Company convertible into or exchangeable or exercisable for shares of Company Capital StockLetter, Voting Debt or other voting securities of the Company; and (3) there are no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments puts or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it any of them is bound relating obligating the Company or any of its Subsidiaries to the voting of issue, deliver, sell or redeem, or cause to be issued, delivered, sold or redeemed, any additional shares of capital stock (or other voting securities or equity interest equivalents) or convertible or exchangeable securities of the Company or any of its SubsidiariesSubsidiaries or obligating the Company or any of its Subsidiaries to grant, extend or enter into any such option, warrant, call, right, put or agreement. No True, complete and correct copies of the Company Charter and Company Bylaws have been delivered to Parent.
(b) Each outstanding share of capital stock (or other voting security or equity equivalent) of each Significant Subsidiary of the Company owns is duly authorized, validly issued, fully paid and nonassessable, and each such share (or other voting security or equity equivalent) is owned by the Company or another Subsidiary of the Company, free and clear of all Liens other than such Liens which (individually or in the aggregate) are not material. The Company does not have any shares outstanding bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company Common Stock on any matter. Section 3.2(b) of the Company Letter contains a true, accurate and correct statement in all material respects of Exhibit 21 if it were dated as of March 15, 2001.
(c) The Company and its Subsidiaries have no mandatory obligations, contingent or otherwise, to provide financing to or make any investment in (in the form of a mandatory loan, capital contribution or similar payment) any person or entity (other shares than wholly-owned subsidiaries) except (i) in the case of such persons and entities other than Modem Media, Inc. for obligations (A) involving no more than $15 million in the aggregate or (B) as disclosed in the Company Capital StockSEC Documents (as hereinafter defined) or in Section 3.2(c) of the Company Letter and (ii) in the case of Modem Media, Inc., the guarantees referenced in Section 3.2(d) of the Company Letter.
(d) As Section 3.2(d) of the date Company Letter discloses all the agreements that the Company has with Modem Media, Inc. and all guarantees, indemnities and other forms of this Agreementcredit support that the Company and its Subsidiaries have undertaken in respect of liabilities and obligations incurred by Modem Media, Inc.
(e) Except as set forth in Section 3.2(e) of the Company Letter, neither the Company nor any of its Subsidiaries has is a party to any (i) interests in a material joint venture oragreement with Modem Media, directly Inc. that restricts the acquisition or indirectlydisposition of shares of Modem Media, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person Inc. other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letteragreements with regard to restrictions relating to compliance with applicable securities laws.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 2 contracts
Sources: Merger Agreement (True North Communications Inc), Merger Agreement (Interpublic Group of Companies Inc)
Capital Structure. (ai) The authorized capital stock of the Company consists of 85,000,000 shares of Company Common Stock, par value $0.01 per share, and 10,000,000 shares of preferred stock, par value $0.01 per share.
(ii) As of the date of this Agreement, the authorized capital stock of the Company consists of :
(iA) 8,000,000 22,064,768 shares of Company Common Stock and (ii) 75,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6, 2020 (the “Measurement Date”): (A) 4,305,119 shares of Company Common Stock were are issued and outstanding, all of which are validly issued, fully paid and nonassessable 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 were preferred stock are issued and outstanding;; and
(C) 2,001,752 shares of Company Common Stock are reserved for issuance pursuant to outstanding Company Stock Options (including exercisable and unexercisable Company Stock Options).
(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 (b) As a complete and accurate list of all outstanding shares of Company Restricted Stock, 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 may vote are issued or outstanding.
(v) Except as set forth in this Section 3.2(c), as of the date of this Agreement, there are 58,775 (A) no shares of capital stock or other voting securities of the Company Common Stock subject to outstanding are issued, reserved for issuance or outstanding, and (B) other than Company Stock Awards and 12,182 shares Options, neither the Company nor any of Company Common Stock subject to its Subsidiaries has or is bound by any outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issuedsubscriptions, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants warrants, calls, rights, convertible securities, commitments or other rights to subscribe for, purchase or acquire from agreements of any character obligating the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company is a party or by which it is bound in any case obligating the Company or any Subsidiary of the Company to issue, deliver, deliver or sell, purchase, redeem or acquire, or cause to be issued, delivered, delivered or sold, purchased, redeemed or acquired, any additional shares of Company Capital Stock or any Voting Debt or other voting securities capital stock of the Company, Company (including any rights plan or agreement) or obligating the Company or any Subsidiary of the Company its Subsidiaries to grant, extend or enter into any such option, warrant, subscription, call, right, convertible security, commitment or agreement. Neither the Company nor any of its Subsidiaries has or is bound by any rights of any character relating to the purchase, sale or issuance or voting of, or right to receive dividends or other distributions on shares of Company Common Stock, or any other security of the Company or a Subsidiary of the Company or any securities representing the right to vote, purchase or otherwise receive any shares of Company Common Stock or any other security of the Company or a Subsidiary of the Company. Other than as stated herein, there are no outstanding securities or instruments that contain any redemption or similar provisions, and there are no outstanding contractual obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of the Company or any of its Subsidiaries.
(vi) Other than the Transaction Support AgreementVoting Agreements and as set forth in the Company’s Disclosure Letter, there are not any stockholder no voting trusts, shareholder agreements, voting trusts proxies or other similar agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating in effect with respect to the voting or transfer of any shares of capital stock the Company Common Stock or other voting securities or equity interest interests of the Company or granting any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities shareholder or other person any registration rights. The Company does not have in effect a “poison pill” or similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Lettershareholder rights plan.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 2 contracts
Sources: Merger Agreement (Clifton Bancorp Inc.), Merger Agreement (Kearny Financial Corp.)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 200,000,000 shares of Company Common Stock and (ii) 75,000,000 Stock, 100,000 shares of Series A participating preferred stock, par value $0.001 0.01 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Series A Preferred Stock”)) and 50,000 shares of Company Series B Preferred Stock. At the close of business on November 6June 30, 2020 (the “Measurement Date”): (A) 4,305,119 2005, 61,609,494 shares of Company Common Stock were issued and outstanding, and (B) no shares of Company Series A Preferred Stock were issued and outstanding and 50,000 shares of Company Series B Preferred Stock were issued and outstanding;
. All of the outstanding shares of capital stock of the Company are duly authorized and validly issued, fully paid and nonassessable and not subject to any preemptive rights. Section 3.2 of the Company Disclosure Schedule sets forth a complete and accurate list of: (bi) As all Company Stock Plans, indicating for each Company Stock Plan, as of the date hereof, the number of this Agreementshares of Company Common Stock issued under such Company Stock Plan, there are 58,775 the number of shares of Company Common Stock subject to outstanding options under such Company Stock Awards Plan and 12,182 the number of shares of Company Common Stock reserved for future issuance under such Company Stock Plan; and (ii) all outstanding Company Stock Options other than those granted following the date of this Agreement in compliance with Section 5.1(h) hereof, indicating with respect to each such Company Stock Option the name of the holder thereof, the Company Stock Plan under which it was granted, the number of shares of Company Common Stock subject to outstanding such Company RSU Awards.
(c) All outstanding Stock Option, the exercise price and the date of grant thereof. Except as set forth above, and except for shares of Company Common Stock have been duly authorized issuable pursuant to the Company’s 1990 Employee Stock Purchase Plan (the “Employee Stock Purchase Plan”) and are validly issued, fully paid as permitted to be issued pursuant to Section 5.1(h) hereof following the date of this Agreement and non-assessable and are not subject prior to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with the Closing Date (ia) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding shares of capital stock of the Company authorized, issued or outstanding; (b) there are no existing options, warrants warrants, calls, preemptive rights, subscription or other rights rights, agreements, arrangements or commitments of any character, relating to subscribe forthe issued or unissued capital stock of the Company, obligating the Company to issue, transfer, redeem, purchase or acquire from the Company sell or cause to be issued, transferred, redeemed, purchased or sold any shares of its Subsidiaries any capital stock of the Company or securities convertible into to otherwise make any payment in respect of any such shares; and (c) there are no rights, agreements or exchangeable arrangements of any character which provide for any stock appreciation or exercisable for capital stock similar right or grant any right to share in the equity, income, revenue or cash flow of the Company.
(b) Section 3.2(b) of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or Disclosure Schedule sets forth a direct or indirect wholly owned Subsidiary of the Company, are free and clear list of all Encumbrancesstockholder agreements, voting trusts and other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, agreements or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements understandings to which the Company or any Subsidiary of the Company is a party or by which it is bound in any case obligating are otherwise known to 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound and relating to the voting or disposition of any shares of the Company’s capital stock or other equity interest granting to any person or group of persons the right to elect, or to designate or nominate for election, a director to the board of directors of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 2 contracts
Sources: Merger Agreement (Concerto Software Inc), Merger Agreement (Aspect Communications Corp)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 75,000,000 Shares and 5,000,000 shares of Company Common Stock and (ii) 75,000,000 shares of preferred stockPreferred Stock, par value $0.001 .001 per share (the “Company Preferred Stock,” and, and together with the Company Common Stock, the “Company Capital Stock”). At As of the close of business on November 6date hereof, 2020 (the “Measurement Date”): (Aa) 4,305,119 12,212,872 Shares, and no shares of Company Common Stock Preferred Stock, were issued and outstanding, (b) 22,164 Shares were subject to issuance pursuant to a deferred stock plan, (c) 630,211 Shares, and (B) no shares of Company Preferred Stock, were held by the Company in its treasury, (d) 5,830,842 Shares were reserved for issuance pursuant to the Company Option Plans (of which 958,428 Shares were subject to outstanding Company Employee Stock Options, 908,181 Shares of which were issued subject to outstanding Company Employee Stock Options having an exercise price less than the Offer Price (“In-the-Money Options”)), and outstanding;(e) the weighted average exercise price of all such In-the-Money Options was $8.13 per Share.
(b) As Section 4.03(b) of the Company Disclosure Letter sets forth a full list of all outstanding Company Employee Stock Options, including in each case the name of the Person to whom such options have been granted, the number of shares subject to each option, the per share exercise price for each option, the vesting schedule for each option and whether such option automatically terminates in the event of a change in control of the Company. Except as set forth above, as of the date hereof, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding.
(c) Except as set forth in Section 4.03(c) of the Company Disclosure Letter, 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 DGCL, the Company Charter, the Company By-laws or any Contract to which the Company is a party or otherwise bound. Except as set forth in Section 4.03(c) of the Company Disclosure Letter, there are no Company Voting Debts or Company SARs issued or outstanding. Except as set forth above, as of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants warrants, rights, convertible or other rights exchangeable securities, “phantom” stock rights, stock appreciation rights, stock-based performance units, commitments, Contracts, arrangements or undertakings of any kind to subscribe for, purchase or acquire from which the Company or any Company Subsidiary is a party or by which any of its Subsidiaries any capital stock of them is bound (i) obligating the Company or securities convertible into any Company Subsidiary to issue, deliver or exchangeable sell, or exercisable for capital stock of the Company (and the exercisecause to be issued, conversiondelivered or sold, purchase, exchange or other similar price thereof). All outstanding additional shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Companyin, or a direct any security convertible or indirect wholly owned Subsidiary exercisable for or exchangeable into any capital stock of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii)equity interest in, there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2) no securities of the Company or any Company Subsidiary of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company is a party or by which it is bound in any case Voting Debt, (ii) obligating the Company or any Subsidiary of the Company Subsidiaries 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment security, commitment, Contract, arrangement or agreementundertaking or (iii) that give any Person the right to receive any economic benefit or right similar to or derived from the economic benefits and rights occurring to holders of Company Capital Stock. Other than the Transaction Support AgreementExcept as set forth in Section 4.03(c) of Company Disclosure Letter, there are not no (A) outstanding contractual obligations of the Company or any stockholder agreementsCompany Subsidiary to repurchase, redeem or otherwise acquire any shares of capital stock of the Company or any Company Subsidiary, or (B) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries Company Subsidiary is a party or by which it is bound relating with respect to the voting of any shares or transfer of capital stock or other equity interest of the Company or any of its the Company Subsidiaries. No Subsidiary Except for the Tender Agreement, to the Knowledge of the Company owns Company, there are no irrevocable proxies and no voting Contracts (or Contracts to execute a written consent or a proxy) with respect to any shares of Company Common Capital Stock or any other shares voting securities of Company Capital Stockthe Company.
(d) As of No participant in the date of this Agreement, neither the Company nor any of its Subsidiaries ESPP has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, accumulated contributions with respect to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure LetterESPP, and all there will be no issuance of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightsShares under the ESPP. No Shares have been acquired through the ESPP.
Appears in 2 contracts
Sources: Merger Agreement (Click Commerce Inc), Merger Agreement (Illinois Tool Works Inc)
Capital Structure. (ai) The authorized share capital of the Company consists of 8,000,000,000 Shares. As of January 28, 2014 (the “Measurement Date”), there were 38,791,834 Shares issued and outstanding (including 3,900 Repurchased Shares and 780,164 Reserved Shares) and no Shares held by any Company Subsidiary. As of the Measurement Date, there were (A) outstanding Company Options to purchase 2,490,273 Shares in the aggregate and (B) outstanding Company Restricted Shares with respect to 192,478 Shares in the aggregate. From the close of business on the Measurement Date until the date of this Agreement, no options or warrants to purchase, or other instruments convertible into, Shares have been granted and no share capital of the Company have been issued, except for (x) Shares issued pursuant to the exercise of Company Options outstanding as of the close of business on the Measurement Date in accordance with their respective terms, or (y) Shares issued upon the vesting and settlement of the Company Restricted Shares outstanding as of the close of business on the Measurement Date, in accordance with their respective terms.
(ii) Except as set forth above in Section 5.1(c)(i) and except for the ADSs and the Deposit Agreement, as of the date of this Agreement, (A) there are no outstanding (x) shares of share capital or other securities of the authorized capital stock Company, (y) securities of the Company consists of (i) 8,000,000 convertible into or exchangeable for shares of share capital or other securities of the Company, or (z) options, restricted share units, restricted shares, phantom shares, warrants, equity equivalent interests in the ownership or earnings of the Company Common Stock or the Company Subsidiaries or other similar rights, rights or other commitments or agreements to acquire from the Company, or obligations of the Company to issue, any shares of share capital or other securities of the Company, or securities convertible into or exchangeable for shares of share capital or other securities of the Company (the items in foregoing clauses (x), (y) and (iiz) 75,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock” and, together with the Company Common Stock, are referred to collectively as the “Company Capital StockSecurities”). At the close of business on November 6, 2020 (the “Measurement Date”): (A) 4,305,119 shares of Company Common Stock were issued and outstanding, and (B) there are no shares outstanding obligations of the Company Preferred Stock were issued and outstanding;
(b) to repurchase, redeem or otherwise acquire any Company Securities. As of the date of this Agreementhereof, there are 58,775 shares all outstanding Shares are, and all Shares which may be issued pursuant to the exercise of Company Common Stock subject to Options outstanding and upon the vesting and settlement of the Company Stock Awards and 12,182 shares of Company Common Stock subject to Restricted Shares outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been will be, when issued in accordance with the terms thereof, duly authorized and are authorized, validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares .
(iii) Each grant of Company Common Stock have been issued Options and granted Company Restricted Shares was made in compliance accordance with the terms of the applicable Company Plan, and all applicable Laws in all material respects respects, and in compliance with (i) applicable securities Laws the rules and other applicable Law and (ii) all requirements set forth in applicable Contracts. As regulations of the close of business on the Measurement Date, except as set forth NASDAQ Global Market LLC (“NASDAQ”) in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock all material respects.
(iv) All of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (issued and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries each of the Company Subsidiaries are owned by the CompanyCompany or another Company Subsidiary, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, Liens (other than Permitted Encumbrances, and have been Liens). Each of the outstanding shares or other equity interests of each of the Company Subsidiaries (other than the PRC Subsidiaries) is duly authorized, validly issued, fully paid and nonassessablenon-assessable (in each case, to the extent applicable). Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise The registered capital of stock options outstanding at such date, each PRC Subsidiary has been duly paid up (whether fully or stock grants or other awards granted partially) in accordance with Section 6.1(b)(ii), there PRC Law and its respective articles of association. There are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptionsconvertible securities or other agreements or commitments, calls, rights (including preemptive and appreciation rights), commitments or agreements to which in each case issued by the Company or any Subsidiary of the Company is a party or by which it is bound in any case obligating the Company or any Subsidiary of the Company to issueSubsidiary, 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the issuance, transfer, sales, voting or redemption (including any rights of conversion or exchange under any shares outstanding security or other instrument) for any of the share capital stock or other equity interest of the interests of, or other ownership interests in, any Company or any of its SubsidiariesSubsidiary. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither except for the Company nor any Subsidiaries and except as may be classified as short-term investments on the consolidated balance sheets of its Subsidiaries has any (i) interests in a material joint venture orthe Company, the Company does not own, directly or indirectly, equity securities any shares of share capital of, or other similar equity interests in interest in, or any interest convertible into or exercisable or exchangeable for any shares of share capital of, or other equity interest in, any other Person or (ii) obligations, whether contingent or otherwise, that is material to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 the business of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of and the Company Disclosure LetterSubsidiaries, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightstaken as a whole.
Appears in 2 contracts
Sources: Merger Agreement (Ninetowns Internet Technology Group Co LTD), Merger Agreement (Wang Shuang)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company AIC consists of (i) 8,000,000 35,000,000 shares of Company AIC Common Stock and (ii) 75,000,000 15,000,000 shares of preferred stock, par value $0.001 per share (“Company AIC Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6June 30, 2020 1999: (the “Measurement Date”): (Ai) 4,305,119 5,585,697 shares of Company AIC Common Stock were issued and outstanding; (ii) 868,869 shares were reserved for issuance pursuant to outstanding employee or director stock options granted under the AIC's employee stock option plans (the "AIC Stock Options"); (iii) 1,000,067 shares were reserved for issuance upon the exchange of units of limited partnership (the "OP Units") in Asset Investors Operating Partnership, L.P., a Delaware limited partnership (the "Operating Partnership"); and (Biv) no shares of Company AIC Preferred Stock were issued and outstanding;
(b) As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) had been designated or issued. All outstanding shares of Company capital stock of AIC are, and all shares thereof which may be issued without violating this Agreement (including, without limitation, all shares of AIC Common Stock have been to be issued pursuant to the Merger) will be, when issued, duly authorized and are authorized, validly issued, fully paid and non-assessable nonassessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except Except as set forth in this Section 4.2 3.3(b), and in except for changes since June 30, 1999 resulting from the Transaction Support Agreementissuance of shares of AIC Common Stock (x) upon the exercise of AIC Stock Options outstanding as of June 30, 1999 or (y) upon the redemption of OP Units outstanding as of June 30, 1999 (i) there are no not issued, reserved for issuance or outstanding options(A) any shares of capital stock or other voting securities of AIC, warrants (B) any securities of AIC or any AIC Subsidiary convertible into or exchangeable or exercisable for shares of capital stock or voting securities of AIC, (C) any warrants, calls, options or other rights to subscribe for, purchase or acquire from the Company AIC or any AIC Subsidiary, and any obligation of its Subsidiaries AIC or any AIC Subsidiary to issue, any capital stock of the Company stock, voting securities or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; AIC or any AIC Subsidiary, and (2ii) there are no outstanding obligations of AIC or any AIC Subsidiary to repurchase, redeem or otherwise acquire any such securities or to issue, deliver or sell, or cause to be issued, delivered or sold, any such securities. There are no outstanding (A) securities of the Company AIC or any AIC Subsidiary of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stock, Voting Debt capital stock or other voting securities of the Company; and in any AIC Subsidiary, (3B) no options, warrants, subscriptions, calls, options or other rights (including preemptive and appreciation rights), commitments or agreements to which the Company acquire from AIC or any Subsidiary AIC Subsidiary, and any obligation of the Company is a party or by which it is bound in any case obligating the Company AIC or any AIC Subsidiary of the Company to issue, deliverany capital stock, sellvoting securities or other ownership interests in, purchaseor any securities convertible into or exchangeable or exercisable for any capital stock, voting securities or ownership interests in, any AIC Subsidiary or (C) obligations of AIC or any AIC Subsidiary to repurchase, redeem or acquireotherwise acquire any such outstanding securities of AIC Subsidiaries or to issue, deliver or sell, or cause to be issued, delivered, delivered or sold, purchased, redeemed or acquired, additional shares of Company Capital Stock or any Voting Debt or other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreementsecurities. Other than as set forth in the Transaction Support Agreementcertificate of incorporation of AIC and the Agreement of Limited Partnership of the Operating Partnership, there are not neither AIC nor any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries AIC Subsidiary is a party or by which it is bound to any agreement restricting the transfer of, relating to the voting of or granting any shares of capital stock or other equity interest preemptive or, except as provided by the terms of the Company or AIC Stock Options, antidilutive rights with respect to, any of its Subsidiaries. No Subsidiary securities of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stocktype referred to in the two preceding sentences.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 2 contracts
Sources: Merger Agreement (Asset Investors Corp), Merger Agreement (Commercial Assets Inc)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (ix) 8,000,000 shares of Company Common Stock 675,000,000 Shares and (iiy) 75,000,000 shares of 10,000,000 preferred stockshares, par value $0.001 per share 0.01 (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital StockPreferred Shares”). At As of the close of business on November 6May 20, 2020 2022 (the “Measurement Capitalization Date”): ), (Ai) 4,305,119 shares of Company Common Stock 139,518,436 Shares were issued and outstandingoutstanding (of which 23,523,674 were Company Restricted Stock), (ii) no Shares were held in the treasury of the Company, (iii) no Shares were held by any Company Subsidiary, (iv) no Preferred Shares were issued or outstanding and (v) 13,379,013 Shares were reserved for issuance under the Company Stock Plans (of which 1,161,742 Shares were subject to outstanding Company Options, 3,968,614 were subject to outstanding Restricted Stock Units, and 960,781 were subject to outstanding Performance Restricted Stock Units (B) assuming target level of achievement of the applicable performance goals), each as granted under the Company Stock Plans). All of the outstanding Shares have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights, and were not issued in violation of any preemptive or other similar rights or applicable Law. As of the Capitalization Date, 1,593,479 Shares are reserved for issuance under the ESPP. Except for the preceding sentences and except for Shares that after the date hereof become reserved for issuance or subject to issuance as permitted under this Agreement, the Company has no Shares, Preferred Shares or other shares of Company Preferred Stock were issued and outstanding;capital stock reserved for, or subject to, issuance.
(b) As From the Capitalization Date to the execution of this Agreement, the Company has not issued any Shares, except pursuant to the exercise of Company Options or the settlement of Restricted Stock Units and Performance Restricted Stock Units outstanding as of the Capitalization Date, in accordance with their terms, and, since the Capitalization Date, except as expressly permitted by this Agreement for the period following the date of this Agreement, the Company has not granted any Company Options, Restricted Stock Units or Performance Restricted Stock Units.
(c) Except as set forth in Section 4.2(a), as of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to no preemptive or outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable shares of capital stock or equity securities Laws and or obligations of the Company or its Subsidiaries convertible into or exchangeable for shares of capital stock or other applicable Law and equity or voting securities of the Company or its Subsidiaries or (ii) all requirements set forth in applicable Contracts. As rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, rights of first refusal, rights of first offer, “phantom” stock rights, equity-based compensation, contingent value rights, subscriptions, commitments or rights of any kind that obligate the Company or any of its Subsidiaries to issue, transfer or sell any shares of capital stock or other equity or voting securities of the close Company or any of business on the Measurement Dateits Subsidiaries or any securities or obligations convertible into or exchangeable or exercisable for, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights giving any Person a right to subscribe for, purchase for or acquire from the Company or any of its Subsidiaries any capital stock equity or voting securities of the Company or securities any of its Subsidiaries. The Company does not have outstanding any bonds, debentures, notes or other obligations that grant the holders thereof the right to vote (or convertible into or exchangeable or exercisable for capital stock securities having the right to vote) with the stockholders of the Company on any matter. Each Company Option, Restricted Stock Unit, and Performance Restricted Stock Unit was granted in accordance with the terms of the applicable Company Stock Plan and all other applicable Law.
(d) Section 4.2(d) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a list identifying (i) each of the Company’s Subsidiaries and the exercise, conversion, purchase, exchange ownership interest of the Company and its Subsidiaries in each such Subsidiary and (ii) any other Person in which the Company or any of its Subsidiaries holds capital stock or other similar price thereofequity interest (other than securities held by any employee benefit plan of the Company or any of its Subsidiaries or any trustee, agent or other fiduciary in such capacity under any such employee benefit plan). All No Subsidiary of the Company owns any Shares. Each of the outstanding shares of capital stock or other securities or equity interests interest of each of the Company’s Subsidiaries of the Company are has been duly authorized and validly issued and is fully paid and nonassessable and is owned by the Company, Company or by a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrancesany lien, charge, pledge, security interest, claim or other than Permitted Encumbrancesencumbrance (each, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and a “Lien”) (except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(iiPermitted Liens and Liens arising under applicable securities Laws), there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 1 contract
Sources: Merger Agreement (Covetrus, Inc.)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 50,000,000 shares of Company Common Stock and (ii) 75,000,000 5,000,000 shares of preferred stock, par value $0.001 1.00 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 64, 2020 2005, (the “Measurement Date”): (Ai) 4,305,119 1,415,727 shares of Company Common Stock were issued and outstandingoutstanding (excluding any shares of Company Common Stock described in clauses (iii), (iv) and (v) below), (ii) 85,621 shares of Company Common Stock were held by the Company in its treasury, (iii) 139,291 shares of Company Common Stock were the subject of vested commitments for issuance under the Company Stock Plans (as defined in Section 6.04) but remain unissued pending the lapse of transfer restrictions, (iv) 146,981 shares of Company Common Stock were the subject of unvested commitments for issuance under Company Stock Plans (including the related so-called “tax gross-up shares”), (v) 41,903 shares of Company Common Stock were the subject of commitments for issuance under the Company’s deferred stock for compensation program, and (Bvi) no there were not any outstanding rights to purchase shares of Company Preferred Common Stock were under the ESPP (as defined in Section 6.04). Each arrangement by which Company Common Stock may have been issued and outstanding;
(b) subject to restrictions in the nature of transfer or vesting has been specified in the Company Disclosure Letter. As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to no outstanding “tax benefit rights” under any Company Stock Awards and 12,182 shares of Plan or other Company Common Stock subject Benefit Plan (as defined in Section 3.11) or Company Benefit Agreement (as defined in Section 3.11) or any commitment to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rightsgrant any such right. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements Except as set forth in applicable Contracts. As of above, at the close of business on the Measurement DateNovember 4, except as set forth in this Section 4.2 and in the Transaction Support Agreement2005, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries securities of the Company are owned by the Companywere issued, reserved for issuance or a direct or indirect wholly owned Subsidiary outstanding. All outstanding shares of the Company, are free and clear of all Encumbrances, other than Permitted EncumbrancesCompany Capital Stock are, and have been all such shares that may be issued prior to the Effective Time will be when issued, duly authorized, validly issued, fully paid and nonassessablenonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the BCA, the Company Charter, the Company By-laws or any Contract (as defined in Section 3.06) to which the Company is a party or otherwise bound. Except as set forth in this Section 4.2There are not any bonds, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such datedebentures, or stock grants notes or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2) no securities indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any Subsidiary matters on which holders of Company Common Stock may vote (“Voting Company Debt”). As of the date of this Agreement, no option to purchase Company convertible into Common Stock has been granted under any Company Stock Plan or exchangeable or exercisable for shares otherwise, no stock appreciation right linked to the price of Company Capital Stock, Voting Debt Common Stock has been granted under any Company Stock Plan or other voting securities of the Company; otherwise and (3) no there are not any options, warrants, subscriptionsrights, callsconvertible or exchangeable securities, rights “phantom” stock, “phantom” stock rights, stock appreciation rights, stock-based performance units, commitments, Contracts, arrangements or undertakings of any kind (including preemptive and appreciation rights), commitments or agreements any of the foregoing under any Company Stock Plan) to which the Company or any Company Subsidiary of the Company is a party or by which it any of them is bound in any case (i) obligating the Company or any Company Subsidiary of the Company to issue, deliver, deliver or sell, purchase, redeem or acquire, or cause to be issued, delivered, delivered or sold, purchased, redeemed or acquired, 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 Capital Stock or any Company Subsidiary, or any Voting Debt or other voting securities of the CompanyCompany Debt, or (ii) obligating the Company or any Company Subsidiary of the Company to issue, grant, extend or enter into any such option, warrant, subscription, call, right, commitment security, commitment, Contract, arrangement or agreementundertaking or (iii) that give any person the right to receive any economic benefit or right similar to or derived from the economic benefits and rights occurring to holders of Company Capital Stock. Other than the Transaction Support Agreement, there There are not any stockholder agreements, voting trusts or other agreements to which outstanding contractual obligations (including any of the foregoing under any Company Stock Plan) of the Company or any of its Subsidiaries is a party Company Subsidiary to repurchase, redeem or by which it is bound relating to the voting of otherwise acquire any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital StockSubsidiary.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 1 contract
Capital Structure. (ai) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 8.65 billion Company Shares, of which 1,801,734,512 Company Shares were issued and outstanding as of March 1, 2006, and 100 million shares of Company Common Stock and (ii) 75,000,000 shares of preferred stockFirst Preferred Stock, par value $0.001 1.00 per share (“the "Company Preferred Stock” andShares"), together with none of which were outstanding as of the date of this Agreement. All of the outstanding Company Common StockShares have been duly authorized and validly issued and are fully paid and nonassessable. The Company has no Company Shares or Company Preferred Shares reserved for issuance, the “Company Capital Stock”). At the close of business on November 6, 2020 (the “Measurement Date”): except that (A) 4,305,119 shares of Company Common Stock were issued and outstanding, and (B) no shares of Company Preferred Stock were issued and outstanding;
(b) As as of the date of this Agreement, there are 58,775 shares an aggregate of 30 million Company Preferred Shares, designated "Series B First Preferred Stock", reserved for issuance pursuant to the Rights Agreement, dated as of November 22, 1999, between the Company and ChaseMellon Shareholder Services, L.L.C., as Rights Agent, as amended by Amendment No. 1 thereto, dated as of March 2, 2005 (the "Rights Agreement") and (B) as of March 1, 2006, there were an aggregate of 166,891,548 Company Shares reserved for issuance pursuant to the Company Stock Plans. Section 5.1(b) of the Company Disclosure Letter contains a correct and complete list as of March 1, 2006 of (x) the number of outstanding Company Options, the exercise price of all Company Options and number of Company Shares issuable at such exercise price and (y) the number of outstanding rights, including those issued under the Company Stock Plans, to receive, or rights the value of which is determined by reference to, Company Shares, the date of grant and number of Company Shares subject thereto (including without limitation restricted stock, restricted stock units and performance shares) (each a "Common Stock subject Unit"). From March 1, 2006 to outstanding the date of this Agreement, the Company Stock Awards and 12,182 shares has not issued any Company Shares except pursuant to the exercise of Company Options and the settlement of Common Stock subject Units outstanding on March 1, 2006 in accordance with their terms and pursuant to outstanding the Company’s Direct Investment Plan, dated November 16, 2004 (the "Company RSU Awards.
(c) All outstanding shares of Direct Investment Plan"), and since March 1, 2006, the Company has not issued any Company Options or Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rightsUnits. All outstanding shares grants of Company Options and Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable ContractsUnits were made under the Company Stock Plans. As of the close of business on the Measurement Date, except Except as set forth in this Section 4.2 5.1(b) and in the Transaction Support right to purchase Company Shares pursuant to the Company Direct Investment Plan, as of the date of this Agreement, there are no preemptive or other outstanding rights, options, warrants 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 rights equity 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, purchase for or acquire from the Company or any of its Subsidiaries Subsidiaries, any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2) no securities of the Company and no securities or any Subsidiary obligations of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party evidencing such rights are authorized, issued or by which it is bound relating outstanding. Except (x) as set forth in this Section 5.1(b) or (y) pursuant to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As Direct Investment Plan, as of the date of this Agreement, neither the Company nor does not have outstanding any of its Subsidiaries has any (i) interests in a material joint venture orbonds, directly or indirectlydebentures, equity securities notes or other similar equity interests in any Person obligations the holders of which have the right to vote (or (iiconvertible into or exercisable for securities having the right to vote) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 with the shareholders of the Company Disclosure Letteron any matter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 1 contract
Sources: Merger Agreement
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 200,000,000 shares of Company Common Stock and (ii) 75,000,000 5,000,000 shares of preferred stock, no par value $0.001 per share (“"Company Preferred Stock” and"), together of which 2,000,000 shares are reserved for issuance in accordance with the Company Common Stock, Rights Plan pursuant to the “Company Capital Stock”)terms thereof. At the close of business on November 6May [11], 2020 2006, (the “Measurement Date”): (Ai) 4,305,119 35,317,405 shares of Company Common Stock were issued and outstandingoutstanding (none of which were owned by the Company (as treasury stock or otherwise)), (ii) 3,352,896 shares of Company Common Stock were reserved for issuance pursuant to the Company Stock Plans (of which 1,905,461 shares of Company Common Stock were subject to outstanding Company Stock Options) and (Biii) no shares of Company Preferred Stock were issued and or outstanding;.
(b) As The Company has delivered to Parent a correct and complete list, as of the date close of this Agreementbusiness on May 11, there are 58,775 2006, of all outstanding Company Stock Options and other rights to purchase or receive shares of Company Common Stock granted under the Company Stock Plans or otherwise, the number of shares of Company Common Stock subject thereto, whether or not a stock option is an incentive stock option, expiration dates and exercise prices thereof, in each case broken down as to each plan, agreement or other arrangement and as to each individual holder. Except as set forth above in this Section 3.03, at the close of business on May 11, 2006 no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. Except as set forth above in this Section 3.03, there are no outstanding Company Stock Awards and 12,182 stock appreciation rights, rights to receive shares of Company Common Stock subject on a deferred basis or other rights that are linked to outstanding the value of Company RSU Awards.
(c) Common Stock granted under the Company Stock Plans or otherwise. All outstanding shares of capital stock of the Company Common are, and all shares which may be issued pursuant to the Company Stock have been Plans will be, when issued in accordance with the terms thereof, duly authorized and are authorized, validly issued, fully paid and non-assessable nonassessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with .
(ic) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except Except as set forth above in this Section 4.2 and in the Transaction Support Agreement3.03, there are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which shareholders of the Company may vote. Except as set forth above in this Section 3.03, (i) there are not issued, reserved for issuance or outstanding options(A) any securities of the Company or any of its Subsidiaries convertible into or exchangeable or exercisable for shares of capital stock or voting securities of the Company or any of its Subsidiaries or (B) any warrants, warrants calls, options or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries Subsidiaries, or any capital stock 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 of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; its Subsidiaries and (3ii) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which there are not any outstanding obligations of the Company or any Subsidiary of the Company is a party its Subsidiaries to repurchase, redeem or by which it is bound in otherwise acquire any case obligating the Company such securities or any Subsidiary of the Company to issue, deliver, deliver or sell, purchase, redeem or acquire, or cause to be issued, delivered, delivered or sold, purchased, redeemed or acquired, additional shares of Company Capital Stock or any Voting Debt or other voting securities of the Company, or obligating such securities. Neither the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or nor any of its Subsidiaries is a party or by which it is bound relating to any voting agreement with respect to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stocksuch securities.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 1 contract
Capital Structure. (a) As of the date of this Agreement, the The authorized share capital stock of the Company consists of (i) 8,000,000 shares of 175,000,000 Company Common Stock Shares and (ii) 75,000,000 1,000,000 shares of preferred stock, par value $0.001 0.0001 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital StockShares”). At the close of business on November 6January 26, 2020 2018 (the “Measurement Capitalization Date”): ), (Ai) 4,305,119 shares of 97,138,740 Company Common Stock Shares were issued and outstanding, (ii) 40,000 Company Shares were held in the Company’s treasury, (iii) 5,791,507 Company Shares were reserved and available for issuance or issued and outstanding pursuant to the Company Stock Plans, of which 4,928,581 Company Shares were potentially issuable upon the exercise of Company Options and 862,926 Company Shares were potentially issuable upon the vesting or settlement of Company Restricted Stock Unit Awards (including any Company Restricted Stock Unit Awards the settlement of which has been deferred), and (Biv) no shares of Company Preferred Stock Shares were issued and outstanding;
(b) As . The number of Company Shares that could be acquired with accumulated payroll deductions under the Company ESPP at the close of business on the purchase date for the offering period in effect as of the date of this Agreement, there are 58,775 shares Agreement (assuming (A) the market price of a Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As Share as of the close of business on such date is equal to the Measurement DateCash Consideration, except as set forth in this Section 4.2 and in (B) such date represents the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock last day of the current offering period and (C) payroll deductions continue at the current rate) does not exceed 716,876 Company or securities convertible into or exchangeable or exercisable for capital stock of the Company Shares.
(and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. b) Except as set forth in this Section 4.23.03(a), and except for changes since as of the Measurement Date resulting from the exercise of stock options Capitalization Date, there were (i) no outstanding at such dateshares of, or stock grants other equity or other awards granted in accordance with Section 6.1(b)(ii)voting interests in, there are outstanding: the Company, (1ii) no shares of Company Capital Stock, Voting Debt or other voting outstanding securities of the Company convertible into or exchangeable for shares of, or other equity or voting interests in, the Company; , (2iii) no securities of outstanding options, warrants, rights or other commitments or agreements to acquire from the Company or any Subsidiary of the Company convertible into Company, or exchangeable or exercisable for shares of Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company is a party or by which it is bound in any case obligating that obligate the Company or any Subsidiary of the Company to issue, deliverany shares of, sellor other equity or voting interests in, purchaseor any securities convertible into or exchangeable for shares 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 shares of, or other equity or voting interests in, the Company 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 foregoing or dividends paid thereon (the items described in clauses (i), (ii), (iii), (iv) and (v) being referred to collectively as “Company Securities”). There are no outstanding agreements of any kind that obligate the Company or any of its Subsidiaries to repurchase, redeem or acquireotherwise acquire any Company Securities (except pursuant to the acquisition by the Company of Company Shares for purposes of satisfying Tax withholding obligations or the payment of any exercise price with respect to holders of Company Options and Company Restricted Stock Unit Awards), or cause to be issued, delivered, sold, purchased, redeemed or acquired, additional shares of Company Capital Stock or any Voting Debt or other voting securities of the Company, or obligating obligate the Company or any Subsidiary of the Company to grant, extend or enter into any such optionagreements relating to any Company Securities, warrantincluding any agreements granting any preemptive rights, subscriptionsubscription rights, callanti-dilutive rights, rightrights of first refusal or similar rights with respect to any Company Securities. There are no bonds, commitment or agreement. Other than the Transaction Support Agreementdebentures, there are not any stockholder agreements, voting trusts notes or other agreements to which Indebtedness of the Company or its Subsidiaries having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of Company Shares may vote. Neither the Company nor any of its Subsidiaries is a party to any stockholders’ agreement, voting trust agreement, registration rights agreement or by which it is bound other similar agreement or understanding relating to any Company Securities or any other agreement relating to the disposition, voting of or dividends with respect to any shares of capital stock or other equity interest of the Company or any of its SubsidiariesSecurities. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the All issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are Shares have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights. Since the Capitalization Date through the date hereof, neither the Company nor any of its Subsidiaries has (A) issued any Company Securities, other than pursuant to Company Options and Company Restricted Stock Unit Awards that were outstanding as of the Capitalization Date or (B) established a record date for, declared, set aside for payment or paid any dividend on, or made any other distribution in respect of, any Company Securities.
(c) The Company Shares constitute the only issued and outstanding class of securities of the Company or its Subsidiaries registered under the Exchange Act.
(d) All outstanding Company Options and Company Restricted Stock Unit Awards are evidenced by individual written award agreements (each, a “Company Stock Award Agreement”) substantially similar to the form relating to the applicable jurisdiction, true, correct and complete copies of which have been made available to Parent prior to the date hereof, and no Company Stock Award Agreement contains terms that are different in any material respect from the terms contained in any such form.
(e) No Subsidiary of the Company owns any Company Shares.
Appears in 1 contract
Sources: Merger Agreement (WestRock Co)
Capital Structure. (ai) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 8.65 billion Company Shares, of which 1,801,734,512 Company Shares were issued and outstanding as of March 1, 2006, and 100 million shares of Company Common Stock and (ii) 75,000,000 shares of preferred stockFirst Preferred Stock, par value $0.001 1.00 per share (“the "Company Preferred Stock” andShares"), together with none of which were outstanding as of the date of this Agreement. All of the outstanding Company Common StockShares have been duly authorized and validly issued and are fully paid and nonassessable. The Company has no Company Shares or Company Preferred Shares reserved for issuance, the “Company Capital Stock”). At the close of business on November 6, 2020 (the “Measurement Date”): except that (A) 4,305,119 shares of Company Common Stock were issued and outstanding, and (B) no shares of Company Preferred Stock were issued and outstanding;
(b) As as of the date of this Agreement, there are 58,775 shares an aggregate of 30 million Company Preferred Shares, designated "Series B First Preferred Stock", reserved for issuance pursuant to the Rights Agreement, dated as of November 22, 1999, between the Company and ChaseMellon Shareholder Services, L.L.C., as Rights Agent, as amended by Amendment No. 1 thereto, dated as of March 2, 2005 (the "Rights Agreement") and (B) as of March 1, 2006, there were an aggregate of 166,891,548 Company Shares reserved for issuance pursuant to the Company Stock Plans. Section 5.1(b) of the Company Disclosure Letter contains a correct and complete list as of March 1, 2006 of (x) the number of outstanding Company Options, the exercise price of all Company Options and number of Company Shares issuable at such exercise price and (y) the number of outstanding rights, including those issued under the Company Stock Plans, to receive, or rights the value of which is determined by reference to, Company Shares, the date of grant and number of Company Shares subject thereto (including without limitation restricted stock, restricted stock units and performance shares) (each a "Common Stock subject Unit"). From March 1, 2006 to outstanding the date of this Agreement, the Company Stock Awards and 12,182 shares has not issued any Company Shares except pursuant to the exercise of Company Options and the settlement of Common Stock subject Units outstanding on March 1, 2006 in accordance with their terms and pursuant to outstanding the Company's Direct Investment Plan, dated November 16, 2004 (the "Company RSU Awards.
(c) All outstanding shares of Direct Investment Plan"), and since March 1, 2006, the Company has not issued any Company Options or Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rightsUnits. All outstanding shares grants of Company Options and Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable ContractsUnits were made under the Company Stock Plans. As of the close of business on the Measurement Date, except Except as set forth in this Section 4.2 5.1(b) and in the Transaction Support right to purchase Company Shares pursuant to the Company Direct Investment Plan, as of the date of this Agreement, there are no preemptive or other outstanding rights, options, warrants warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, commitments or rights of any kind that obligate -10- the Company or any of its Subsidiaries to issue or sell any shares of capital stock or other rights equity 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, purchase for or acquire from the Company or any of its Subsidiaries Subsidiaries, any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2) no securities of the Company and no securities or any Subsidiary obligations of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party evidencing such rights are authorized, issued or by which it is bound relating outstanding. Except (x) as set forth in this Section 5.1(b) or (y) pursuant to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As Direct Investment Plan, as of the date of this Agreement, neither the Company nor does not have outstanding any of its Subsidiaries has any (i) interests in a material joint venture orbonds, directly or indirectlydebentures, equity securities notes or other similar equity interests in any Person obligations the holders of which have the right to vote (or (iiconvertible into or exercisable for securities having the right to vote) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 with the shareholders of the Company Disclosure Letteron any matter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 1 contract
Sources: Merger Agreement (At&t Inc.)
Capital Structure. (ai) The authorized capital stock of the Seller consists of Twenty-Five Million (25,000,000) shares of common stock, par value $0.01 per share. As of the date of this Agreement: (A) 2,655,569 shares of Seller Common Stock were issued and outstanding, (B) 500,000 shares of Seller Common Stock were reserved for issuance pursuant to stock options, and (C) no shares of Seller Common Stock were held by the Seller in its treasury. All outstanding shares of Seller Common Stock are validly issued, fully paid and nonassessable and not subject to any preemptive rights. The Disclosure Schedule 2.1(b) sets forth a complete and accurate list of all options to purchase Seller Common Stock outstanding, including the dates of grant, exercise prices, dates of vesting, dates of termination and shares subject to option for each grant.
(ii) As of the date of this Agreement, the authorized capital stock of the Company consists of (i) 8,000,000 shares of Company Common Stock except for this Agreement and (ii) 75,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6, 2020 (the “Measurement Date”): (A) 4,305,119 shares of Company Common Stock were issued and outstanding, and (B) no shares of Company Preferred Stock were issued and outstanding;
(b) As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(iiDisclosure Schedule 2.1(b), there are outstanding: (1) no shares of Company Capital Stockthe Seller is not a party to or is bound by any outstanding subscriptions, 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), convertible securities, commitments or agreements to which the Company or of any Subsidiary of the Company is a party or by which it is bound in any case character obligating the Company or any Subsidiary of the Company Seller to issue, deliver, deliver or sell, purchase, redeem or acquire, or cause to be issued, delivered, delivered or sold, purchased, redeemed or acquired, any additional shares of Company Capital Stock or any Voting Debt or other voting securities capital stock of the Company, Seller or obligating the Company or any Subsidiary of the Company Seller to grant, extend or enter into any such option, warrant, subscription, call, right, convertible security, commitment or agreement. Other than As of the Transaction Support Agreementdate hereof, there are not any stockholder agreementsno outstanding contractual obligations of the Seller to repurchase, voting trusts redeem or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of otherwise acquire any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital StockSeller.
(diii) As To the best of Seller's knowledge, except as declared in Disclosure Schedule 2.1(b), no person or "group" (as that term is used in Section 13(d)(3) of the date Securities Exchange Act of this Agreement1934, neither as amended (the Company nor any "Exchange Act")) is the beneficial owner of its Subsidiaries has any (i) interests in a material joint venture or, directly 5% or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 more of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightsSeller Common Stock.
Appears in 1 contract
Sources: Merger Agreement (N-Vision Inc)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 20,000,000 shares of Company Common Stock and (ii) 75,000,000 1,000,000 shares of preferred stock, par value $0.001 1.00 per share (“" Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”"). At the close of business on November 6July 21, 2020 1997, (the “Measurement Date”): (Ai) 4,305,119 9,492,676 shares of Company Common Stock were issued and outstanding, (ii) no shares of Company Common Stock were held by the Company in its treasury, (iii) 1,055,660 shares of Company Common Stock were subject to issuance pursuant to outstanding options to purchase shares of Company Common Stock, (iv) 303,797 shares of Company Common Stock were reserved for issuance pursuant to the conversion of the Company's 5 1/2% Convertible Subordinated Debentures due March 1, 2012 (the "Convertible Debentures"), (v) 250,000 shares of Company Common Stock were reserved for issuance under the Company's 1996 Employee Stock Purchase Plan (the "Company ESPP") (stock options granted by the Company are referred to in this Agreement as "Company Options"), and (Bvi) no shares of Company Preferred Stock were issued or outstanding. Except as set forth above and except for Company Common Stock issued between July 21, 1997 and the date of this Agreement upon the exercise of options to purchase Company Common Stock, at the close of business on July 22, 1997, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding;
. All outstanding shares of capital stock of the Company are, and all shares which may be issued pursuant to Company Options will be, when issued in accordance with the terms thereof, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights. Except for the Convertible Debentures, there are no bonds, debentures, notes or other indebtedness of the Company outstanding having the right to vote (or convertible into securities having the right to vote) on any matters on which stockholders of the Company may vote. Except as set forth above and except for (a) Company Common Stock issued between July 21, 1997 and the date of this Agreement upon the exercise of options to purchase Company Common Stock and (b) "rights" to purchase Company Common Stock outstanding under the Company ESPP, as of the date of this Agreement, there are no securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which the Company is a party, or by which it is bound, obligating the Company to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other voting securities of the Company or obligating the Company to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to not any outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock contractual obligations of the Company to repurchase, redeem or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding otherwise acquire any shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2) no securities . As of the Company or any Subsidiary date of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stockthis Agreement, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company is a party or except as contemplated 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support this Agreement, there are not any no stockholder agreements, voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of capital stock or other equity interest of the Company or any of its SubsidiariesCompany. No Subsidiary All of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As outstanding capital stock of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are Company's subsidiaries is owned by the Company, directly or indirectly, all such free and clear of any Lien (as defined in Section 3.1(d)) or any other limitation or restriction (including any restriction on the right to vote or sell the same, except as may be provided as a matter of law), except for shares of capital stock or equity other similar ownership interests are set forth in Schedule 4.2 of certain subsidiaries of the Company Disclosure Letterthat may be owned by certain nominee equity holders as required by the applicable law of the jurisdiction of organization of such subsidiaries. There are no securities of the Company or its subsidiaries convertible into or exchangeable for, no options or other rights to acquire from the Company or its subsidiaries, and all of such shares no other contract, understanding, arrangement or equity obligation (whether or not contingent) providing for the issuance or sale, directly or indirectly, of, any capital stock or other ownership interests in, or any other equity securities of, any subsidiary of the Company. As of the date of this Agreement, there are duly authorized and validly issued and are fully paidno outstanding contractual obligations of the Company or its subsidiaries to repurchase, nonassessable and free redeem or otherwise acquire any outstanding shares of preemptive rightscapital stock or other ownership interests in any subsidiary of the Company.
Appears in 1 contract
Sources: Merger Agreement (Sanmina Corp/De)
Capital Structure. (ai) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 shares 2,400,000,000 Company Shares, of which 1,100,161,364 Company Common Stock Shares were issued and (ii) 75,000,000 shares outstanding and 76,993,242 Company Shares were held in treasury as of preferred stock, par value $0.001 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6April 30, 2020 1998, 30,000,000 shares of Preferred Stock, $1.00 par value per share (the “Measurement Date”): (A) 4,305,119 "Company Preferred Shares"), none of which were outstanding as of the close of business on May 8, 1998 and 30,000,000 shares of Preference Stock, $1.00 par value per share, (the "Company Preference Shares"), none of which were outstanding as of the close of business on May 8, 1998. All of the outstanding Company Shares have been duly authorized and are validly issued, fully paid and nonassessable. Other than 12,000,000 Company Preference Shares, designated "Series A Junior Participating Preference Stock", reserved for issuance pursuant to the Rights Agreement, dated as of December 21, 1988, between the Company and American Transtech Inc., as Rights Agent (the "Rights Agreement"), and Company Shares subject to issuance as set forth below, the Company has no Company Shares, Company Preferred Shares or Company Preference Shares reserved for or otherwise subject to issuance. As of May 10, 1998, there were not more than 47,000,000 Company Shares that the Company was obligated to issue pursuant to the Company Compensation and Benefit Plans identified in Section 5.1(h) of the Company Disclosure Letter as being the only Company Compensation and Benefit Plans pursuant to which Company Shares may be issued (collectively the "Company Stock Plans"). Each of the outstanding shares of capital stock or other securities of each of the Company's Subsidiaries that constitute a "Significant Subsidiary" (as defined in Rule 1.02(w) of Regulation S-X promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), is duly authorized, validly issued, fully paid and nonassessable and owned by the Company or a direct or indirect wholly-owned Subsidiary of the Company, free and clear of any lien, pledge, security interest, claim or other encumbrance. Except as set forth above and for Company Shares and options to purchase Company Shares which may be issued in accordance with Section 6.1(a), there are no preemptive or other outstanding rights, 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 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 securities of the Company or any of its Significant Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued or outstanding. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter.
(ii) The authorized capital stock of SBC consists of 7,000,000,000 shares of SBC Common Stock Stock, of which 1,838,844,294 shares were issued and outstandingoutstanding and 26,060,210 shares were held in treasury as of the close of business on April 30, 1998, and (B) no 10,000,000 shares of Company Preferred Stock Stock, par value $1.00 per share (the "SBC Preferred Shares"), none of which shares were issued and outstanding;
(b) As outstanding as of the date close of this Agreementbusiness on May 8, there are 58,775 shares 1998. All of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All the outstanding shares of Company SBC Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not nonassessable. SBC has no shares of SBC Common Stock or SBC Preferred Shares reserved for or subject to preemptive rights. All outstanding shares issuance except that SBC has reserved no more than 10,000,000 SBC Preferred Shares for or subject to issuance pursuant to the Rights Agreement, dated as of Company Common Stock have been issued January 27, 1989, between SBC and granted in compliance in all material respects with American Transtech, Inc., as Rights Agent, as amended by the Amendment of Rights Agreement, dated as of August 5, 1992, between SBC and The Bank of New York, as successor Rights Agent, and the Second Amendment of Rights Agreement, dated as of June 15, 1994, between SBC and The Bank of New York, as successor Rights Agent (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contractsas amended, the "SBC Rights Agreement"). As of the close of business on the Measurement DateMay 10, except as set forth in this Section 4.2 and in the Transaction Support Agreement1998, there are no outstanding optionswere not more than 92,000,000 shares of SBC Common Stock that SBC was obligated to issue pursuant to (x) SBC's Senior Management Long Term Incentive Plan, warrants or other rights to subscribe forSenior Management Incentive Award Deferral Plan, purchase or acquire from Non-Employee Directors Stock and Deferral Plan, Stock Savings Plan, 1994 Stock Option Plan, 1996 Stock and Incentive Plan, 1995 Management Stock Option Plan, Savings Plan and the Company or any of its Subsidiaries any capital stock Savings and Security Plan and (y) Pacific Telesis Group's Supplemental Retirement and Savings Plan for Salaried Employees, Supplemental Retirement and Savings Plan for NonSalaried Employees, Supplemental Retirement and Savings Plan for Salaried and NonSalaried Employees, Employee Stock Ownership Plan, Stock Option and Stock Appreciation Rights Plan, Outside Directors Deferred Stock Unit Plan and Restricted Stock Plan (collectively, the "SBC Stock Plans"). Each of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the each of SBC's Significant Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been is duly authorized, validly issued, fully paid and nonassessablenonassessable and owned by SBC or a direct or indirect wholly-owned subsidiary of SBC, free and clear of any lien, pledge, security interest, claim or other encumbrance. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii)above, there are outstanding: (1) no shares of Company Capital Stock, Voting Debt preemptive 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 Company Capital Stockoutstanding rights, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptionsconversion rights, calls, rights (including preemptive and stock appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company is a party or by which it is bound in any case obligating the Company or any Subsidiary of the Company to issueredemption rights, deliverrepurchase rights, 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts arrangements or other agreements commitments to which the Company issue or any of its Subsidiaries is a party or by which it is bound relating to the voting of sell any shares of capital stock or other equity interest securities of the Company SBC or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock 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 securities of SBC or any of its Significant Subsidiaries, and no securities or obligation evidencing such rights are authorized, issued or outstanding. SBC does not have outstanding any bonds, debentures, notes or other shares obligations the holders of Company Capital Stockwhich have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of SBC on any matter.
(diii) As The authorized capital stock of the date Merger Sub consists of this Agreement1,000 shares of Common Stock, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letterpar value $1.00 per share, all of which are validly issued and outstanding. All of the issued and outstanding capital stock of Merger Sub is, and at the Effective Time will be, owned by SBC, and there are (i) no other shares of capital stock or other equity ownership interests voting securities of each Subsidiary Merger Sub, (ii) no securities of the Company are owned by the Company, directly Merger Sub convertible into or indirectly, all such exchangeable for shares of capital stock or equity ownership interests are set forth in Schedule 4.2 other voting securities of the Company Disclosure LetterMerger Sub and (iii) no options or other rights to acquire from Merger Sub, and all no obligations of such shares Merger Sub to issue, any capital stock, other voting securities or equity ownership interests are duly authorized securities convertible into or exchangeable for capital stock or other voting securities of Merger Sub. Merger Sub has not conducted any business prior to the date hereof and validly issued has no, and are fully paidprior to the Effective Time will have no, nonassessable assets, liabilities or obligations of any nature other than those incident to its formation and free of preemptive rightspursuant to this Agreement and the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 50,000,000 shares of Company Common Stock Stock; and (ii) 75,000,000 10,000,000 shares of preferred stock, par value $0.001 per share stock (“Company Preferred Stock” and, and together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6, 2020 (the “Measurement Date”): (A) 4,305,119 shares of Company Common Stock were issued and outstanding, and (B) no shares of Company Preferred Stock were issued and outstanding;.
(b) As of the date of this Agreement, there are 58,775 hereof: (i) 3,694,737 shares of Company Common Stock subject to outstanding are issued and outstanding; (ii) no shares of Company Preferred Stock Awards are issued and 12,182 outstanding; (iii) no shares of Company Common Stock subject are held in the treasury of the Company; (iv) 354,605 shares of Company Common Stock are duly reserved for issuance pursuant to outstanding Company RSU AwardsOptions; and (v) 246,243 shares of Company Common Stock are duly reserved for issuance upon exercise of outstanding Company Warrants and (vi) a sufficient number of shares are reserved for issuance upon the conversion of any convertible notes issued by the Company. Except as described above, as of the date hereof, there are no shares of voting or non-voting capital stock, equity interests or other securities of the Company authorized, issued, reserved for issuance or otherwise outstanding. Section 2.3(b) of the Company Disclosure Schedule sets forth a true, complete and correct list of all holders of Company Capital Stock indicating the number and class or series of Company Capital Stock held by each of them.
(c) Section 2.3(c) of the Company Disclosure Schedule also sets forth a true, complete and correct list of the holders of all Company Options and Company Warrants, including: (i) the number and class of Company Capital Stock subject to each such Company Stock Option or Company Warrant; (ii) the date of grant; (iii) the exercise price; (iv) the date of grant, the vesting schedule, as applicable, and expiration date; and (v) any other material terms, including, without limitation, any terms regarding the acceleration of vesting.
(d) All outstanding shares of Company Common Capital Stock have been duly authorized are, and are validly issued, fully paid and non-assessable and are not subject all shares which may be issued pursuant to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of Options and Company Warrants, will be, when issued against payment therefor in accordance with the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exerciseterms thereof, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessablenon-assessable, and not subject to, or issued in violation of, any kind of preemptive, subscription or of similar rights, and were or will be issued in compliance in all material respects with all applicable federal and state securities laws.
(e) There are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into securities having the right to vote) on any matters on which the Company’s stockholders may vote. Except as set forth described in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii)subsection (b) above, there are outstanding: (1) no shares of Company Capital Stockoutstanding securities, 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights rights, commitments, agreements, arrangements or undertakings of any kind (including preemptive and appreciation rights), commitments contingent or agreements otherwise) to which the Company or any Subsidiary of the Company is a party or by which it is bound in any case obligating the Company or any Subsidiary of the Company to issue, deliver, deliver or sell, purchase, redeem or acquire, or cause to be issued, delivered, delivered or sold, purchased, redeemed or acquired, additional shares of Company Capital Stock or any Voting Debt capital stock or other voting securities of the Company, Company or obligating the Company or any Subsidiary of the Company to issue, grant, extend or enter into any such agreement to issue, grant or extend any security, option, warrant, subscription, call, right, commitment commitment, agreement, arrangement or agreementundertaking. Other than Neither the Transaction Support AgreementCompany nor its Subsidiaries is subject to any obligation or requirement to provide funds for or to make any investment (in the form of a loan or capital contribution) to or in any Person.
(f) There are no outstanding contractual obligations of the Company to repurchase, there redeem or otherwise acquire any shares of capital stock (or options to acquire any such shares) or other security or equity interest of the Company or to cause the Company or its Subsidiaries to file a registration statement under the Securities Act, or which otherwise relate to the registration of any securities of the Company or its Subsidiaries.
(g) There are not any stockholder no voting trusts, proxies or other agreements, voting trusts arrangements, commitments or other agreements understandings of any character to which the Company or its Subsidiaries or, to the knowledge of the Company, any of its Subsidiaries the Company’s stockholders, is a party or by which it any of them is bound relating with respect to the issuance, holding, acquisition, voting or disposition of any shares of capital stock or other security or equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 1 contract
Capital Structure. (a) As of the date of this Agreement, the authorized capital stock shares of beneficial interest of the Company consists consist of (i) 8,000,000 shares of 350,000,000 Company Common Stock Shares and (ii) 75,000,000 50,000,000 preferred shares of preferred stockbeneficial interest, $.01 par value $0.001 per share (the “Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital StockShares”). At the close of business on November 627, 2020 (the “Measurement Date”): 2024: (A) 4,305,119 shares of 30,663,551 Company Common Stock Shares were issued and outstanding, and ; (B) no shares of Company Preferred Stock Shares were issued and outstanding;; and (C) 27,489 Company Common Shares were subject to outstanding restricted stock units granted under the Company Equity Plans. Except as set forth in this Section 4.2, at the close of business on November 27, 2024, there were no other outstanding Company Common Shares issued, reserved for issuance or outstanding.
(b) As of the date of this Agreement, there are 58,775 shares of All outstanding Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been Shares are duly authorized and are authorized, validly issued, fully paid and non-assessable nonassessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock Shares have been issued and granted in compliance in all material respects with (i) applicable state and federal securities Laws Laws, the MRL and the Organizational Documents of the Company. The Company owns, of record and beneficially, directly or indirectly, all of the issued and outstanding shares of capital stock of, or other equity interests in, the Subsidiaries of the Company, free and clear of all Liens, other than Permitted Liens and transfer and other restrictions under applicable Law federal and (ii) all requirements set forth in applicable Contractsstate securities Laws. As of the close of business on the Measurement DateNovember 27, 2024, except as set forth in this Section 4.2 and in the Transaction Support Agreement4.2, there are were no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1i) no shares of Company Capital StockCommon Shares, (ii) Voting Debt or other voting securities of the Company; Debt, (2iii) no securities of the Company or any Subsidiary of the Company convertible into or exchangeable or exercisable for shares Company Common Shares or Voting Debt, (iv) contractual obligations of the Company Capital Stockor any Subsidiary of the Company to repurchase, Voting Debt redeem or otherwise acquire any Company Common Shares or capital stock, membership interests, partnership interests, joint venture interests or other voting securities equity interests of any Subsidiary of the Company; and , or (3v) no subscriptions, options, warrants, subscriptions, calls, puts, rights of first refusal or other rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company is a party or by which it is bound bound, in any case case, obligating the Company or any Subsidiary of the Company to (A) issue, deliver, transfer, sell, purchase, redeem or acquire, or cause to be issued, delivered, transferred, sold, purchased, redeemed or acquired, additional shares of Company Capital Stock or Common Shares, any Voting Debt or other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to (B) grant, extend or enter into any such subscription, option, warrant, subscription, call, put, right of first refusal or other similar right, commitment or agreement. Other than Except as set forth in Section 4.2(b) of the Transaction Support AgreementCompany Disclosure Schedules, there are not any stockholder no shareholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of capital stock Company Common Shares.
(c) All dividends or other equity interest distributions on Company Common Shares and any material dividends or other distributions on any securities of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock which have been authorized or any other shares of Company Capital Stock.
(d) As of declared prior to the date of this Agreement, neither hereof have been paid in full (except to the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all extent such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued dividends have been declared and are fully paid, nonassessable not yet due and free of preemptive rightspayable).
Appears in 1 contract
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 shares of 20,000,000 Company Common Stock Shares and (ii) 75,000,000 5,000,000 shares of preferred stock, each with $.01 par value $0.001 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). .
(b) At the close of business on November 6December 9, 2020 (the “Measurement Date”): 2011, (A) 4,305,119 shares of 11,167,690 Company Common Stock Shares were issued and outstanding, (B) 815,556 Company Shares were reserved for issuance pursuant to outstanding options (the “Company Stock Options”) and (BC) no shares of Company Preferred Stock were issued and or outstanding;
(b) As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding Since the close of business on December 9, 2011, (A) there have been no issuances by the Company of shares of Company Common Stock have been duly authorized and are validly issuedcapital stock or other voting securities or equity interests of the Company, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares other than issuances of Company Common Shares pursuant to the exercise of Company Stock have been issued Options and granted in compliance in all material respects with purchase rights under the Company’s Employee Stock Purchase Plan, as amended effective December 10, 2009 (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As the “ESPP”), outstanding as of the close of business on December 9, 2011, and (B) there have been no issuances by the Measurement DateCompany of securities convertible into, except as set forth in this Section 4.2 and in the Transaction Support Agreementor exchangeable or exercisable for, there are no outstanding or options, warrants or other rights to subscribe foracquire, or shares of deferred stock, restricted stock units, stock-based performance units, stock appreciation rights or “phantom” stock awards with respect to, any such stock, interests or securities, or derivative securities or other rights that are linked to the value of Company Shares or the value of the Company or any part thereof, other than purchase rights under the ESPP.
(d) All outstanding shares of capital stock of the Company are, and all shares which may be issued pursuant to the Company Stock Options or purchase rights under the ESPP will be, when issued in accordance with the terms thereof, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights. Except as set forth above in this Section 3.2 and except for the transactions contemplated by this Agreement and except as provided by the Rights Agreement dated as of June 1, 2006, between the Company and American Stock Transfer & Trust Company, as Rights Agent (the “Rights Agreement”), as of the date hereof, (A) there are not issued, reserved for issuance or outstanding (1) any shares of capital stock or other voting securities or equity interests of the Company or any of its Subsidiaries, (2) 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 or any of its Subsidiaries, (3) any warrants, calls, options or other rights to acquire from the Company or any of its Subsidiaries any capital stock Subsidiaries, and no obligation of the Company or any of its Subsidiaries to issue, any capital stock, voting securities, equity interests or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of (4) any shares of deferred stock, restricted stock units, stock-based performance units, stock appreciation rights or “phantom” stock awards with respect to any capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary , or derivative securities or other rights that are linked to the value of the Company owns Shares or the value of the Company, any shares of its Subsidiaries or any part thereof and (B) 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, any such securities (except pursuant to the forfeiture of Company Common Stock Options or any other shares the acquisition by the Company of Company Capital Stock.
(d) As Shares in settlement of the exercise price of a Company Stock Option or the Tax withholding obligations of holders of Company Stock Options, in each case in accordance with their terms as in effect on the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter).
(e) Except Exhibit 21.1 to the Company’s Annual Report on Form 10-K for the year ended October 31, 2010, as filed with the SEC, constituted a true, accurate and correct statement in all material respects of all of the information required to be set forth in Schedule 4.2 therein by the regulations of the SEC as of the date thereof.
(f) Section 3.2 of the Company Disclosure Letter, Letter sets forth a list of all of the issued Subsidiaries and outstanding shares of capital stock or other equity ownership interests of each Subsidiary Joint Ventures of the Company are owned by and the Company, directly jurisdiction in which such Subsidiary or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 Joint Venture is organized. Section 3.2 of the Company Disclosure LetterLetter also sets forth the nature and extent of the ownership and voting interests held by the Company in each such Joint Venture. The Company has no obligation to make any capital contributions, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paidotherwise provide assets or cash, nonassessable and free of preemptive rightsto any Joint Venture.
Appears in 1 contract
Capital Structure. (ai) As of the date of this Agreement, the The authorized capital stock of the Company consists of (ix) 8,000,000 shares 26,000,000 Shares, of Company Common Stock and (ii) 75,000,000 shares which 16,236,720 Shares were outstanding as of preferred stock, par value $0.001 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November March 6, 2020 2006 and (the “Measurement Date”): (Ay) 4,305,119 1,000,000 shares of Company Common Stock were issued and outstandingPreferred Stock, and (B) par value $0.01 per share, of which no shares are outstanding as of Company Preferred Stock were issued and outstanding;
(b) the date hereof. As of the date hereof, 36,670 Shares are held in Treasury or by Subsidiaries of the Company. Except for Shares issued upon exercise of Company Options or Company Awards, no Shares have been issued between the close of business on the day immediately prior to the date hereof and the time of execution of this Agreement, there are 58,775 shares . All of Company Common Stock subject to the outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock Shares have been duly authorized and are validly issued, fully paid and non-assessable and nonassessable. The Company has no shares reserved for issuance except that, as of the date hereof, (x) there are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws 1,984,704 Shares reserved for issuance pursuant to Company Options granted under the Company’s 1995 Stock Option Plan and other applicable Law the Company’s 2002 Long Term Incentive Plan (the “Stock Plans”) and (ii) all requirements set forth in applicable Contracts. As 1,042,094 Shares reserved for issuance pursuant to the various warrants (each, a “Warrant” and, collectively, the “Warrants”) issued to employees dated March 22, 2001, January 24, 2001, March 16, 2000, February 25, 2000 and October 27, 1998 (collectively, the “Warrant Agreements”) and (y) there are 50,000 Preferred Shares reserved for issuance pursuant to the rights (the “Rights”) under the Rights Agreement, dated as of June 24, 2005, between the Company and American Stock Transfer & Trust Company, as Rights Agent as amended by the Amendment to Rights Agreement dated as of the close date hereof (the “Rights Agreement”). Section 5.1(b) of business on the Measurement DateCompany Disclosure Letter accurately and completely lists, except as of the date specified therein, each outstanding Company Option, Company Award and each outstanding Warrant, including the holder, date of grant, exercise price and number of Shares subject thereto. Except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock 5.1(b) of the Company or securities convertible into or exchangeable or exercisable for capital stock Disclosure Letter, each of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests securities of each of the Company’s Subsidiaries of the Company are is duly authorized, validly issued, fully paid and nonassessable and owned by the Company, Company or by a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrancesany lien, charge, pledge, security interest, claim or other than Permitted Encumbrancesencumbrance (each, a “Lien”).
(ii) Except pursuant to the Stock Plans, the Warrant Agreements and except for the Rights, 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 securities 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 securities of the Company or any of its Subsidiaries, and have been no securities or obligations evidencing such rights are authorized, issued or outstanding. There are no voting trusts, proxies or other agreements or understandings to which the Company or any of its Subsidiaries are bound with respect to the voting of any capital stock or other securities of the Company or its Subsidiaries. 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. Except as set forth in this Section 4.2The Company does not have outstanding any bonds, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such datedebentures, or stock grants notes or other awards granted in accordance obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2) no securities stockholders of the Company or on any Subsidiary of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreementmatter. Other than the Transaction Support AgreementCompany Options, there are not any stockholder agreementsWarrants and Company Awards, voting trusts no other Shares have been or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating may be issued pursuant to the voting terms of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital StockBenefit Plan.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 1 contract
Sources: Merger Agreement (Sourcecorp Inc)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 shares of Company Common Stock 100,000,000 Class A Shares, 50,000,000 Class B Shares and (ii) 75,000,000 50,000,000 shares of preferred stock, par value $0.001 per share 0.01 (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital StockShares”), of which 35,718,406 Class A Shares, 1,975,931 Class B Shares and no Preferred Shares were outstanding as of the date hereof. At The authorized equity interests of DPA consist of 200,000,000 New Class A Units, of which 1,975,931 were outstanding as of the close of business on November 6, 2020 (the “Measurement Date”): (A) 4,305,119 shares of Company Common Stock were issued and outstanding, and (B) no shares of Company Preferred Stock were issued and outstanding;
(b) date hereof. As of the date of this Agreementhereof, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) an aggregate of 1,524,237 Class A Shares were subject to or otherwise deliverable in connection with the exercise of outstanding Company Options issued pursuant to the Duff & ▇▇▇▇▇▇ Corporation Further Amended and Restated 2007 Omnibus Stock Incentive Plan (the “Stock Plan”), (ii) 5,336,207 Company RSAs and/or Director RSAs were outstanding under the Stock Plan and (iii) no restricted New Class A Units were outstanding. Section 5.1(b) of the Company Disclosure Letter contains a correct and complete list as of the date hereof of (i) a schedule of the outstanding Company Options, including the applicable securities Laws exercise prices therefor, vesting schedules and other applicable Law the holders thereof, and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock a schedule of the Company or securities convertible into or exchangeable or exercisable for capital stock RSAs, including vesting schedules and the holders thereof. Each of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests securities of the Subsidiaries each of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary Parties and each of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been its Subsidiaries is duly authorized, validly issued, fully paid and nonassessable. Each of the outstanding shares of capital stock or other equity securities of each of the Subsidiaries of the Company Parties is owned by the Company or DPA or by a direct or indirect wholly owned Subsidiary of the Company or DPA, free and clear of any lien, charge, pledge, mortgage, security interest, claim or other encumbrance (each, a “Lien”) other than (i) Liens imposed under any federal or state securities Laws or (ii) under the Credit Agreement. Except as set forth in this Section 4.2, above and except for changes since as set forth in the Measurement Date resulting from the exercise certificate of stock options outstanding at such date, incorporation or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2) no securities bylaws of the Company or any Subsidiary the limited liability company agreement of DPA or in the Exchange Agreement, as of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stockdate hereof, Voting Debt or other voting securities of the Company; and (3) there are no preemptive rights, options, warrants, subscriptionsconversion rights, calls, rights (including preemptive and stock appreciation rights), redemption rights, repurchase rights, calls or commitments or similar rights, or any agreements or arrangements to which the Company Parties or any Subsidiary of the Company is their Subsidiaries are a party or by which it is bound in they are bound, that obligate 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company Parties or any of its their Subsidiaries is a party to issue or by which it is bound relating to the voting of sell any shares of capital stock or other equity interest securities of the Company Parties or any of their 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 Parties or any of their Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued or outstanding. Upon any issuance of any Class A Shares in accordance with the terms of the Stock Plan or pursuant to the exchange of New Class A Units for Class A Shares, such Class A Shares will be duly authorized, validly issued, fully paid and nonassessable and free and clear of any Liens other than Liens imposed under any federal or state securities Laws. None of the Company Parties or any of their Subsidiaries has outstanding any bonds, debentures, notes or other indebtedness which by their terms grant to their holders the right to vote (or which are by their terms convertible into or exercisable for securities having the right to vote) with the stockholders of the Company or equity holders of DPA on any matter. Except as set forth in the certificate of its Subsidiaries. No Subsidiary incorporation or bylaws of the Company owns or the limited liability company agreement of DPA and the Exchange Agreement, there are no contractual obligations of any shares of the Company Common Stock Parties or any of their Subsidiaries pursuant to which any of the Company Parties or any of their Subsidiaries is required to register under the Securities Act or purchase any Class A Shares, Class B Shares, New Class A Units or other equity interests of the Company Parties or any of their Subsidiaries or any other shares securities of the Company Capital Stock.
(dParties or any of their Subsidiaries. Section 5.1(b) As of the Company Disclosure Letter contains a correct and complete list as of the date hereof of this Agreement, neither any Affiliate of the Company nor Parties that is not a Subsidiary of a Company Party in which the Company Parties or any of its their Subsidiaries has any (i) interests in a material joint venture orown, directly or indirectly, any equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letterinterest.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 1 contract
Capital Structure. (ai) As In the case of the date of this AgreementCompany, the authorized capital stock of the Company consists of (i) 8,000,000 20,000,000 shares of Company Common Stock Stock, of which 14,011,754 shares were outstanding as of the close of business on December 15, 2016, and (ii) 75,000,000 1,656,381 shares of preferred stock, par value $0.001 0.01 per share (“Company Preferred Stock” andshare, together with of which no shares were outstanding or held by the Company Common Stockin its treasury as of the date of this Agreement (collectively, the “Company Capital Stock”). At the close of business on November 6, 2020 (the “Measurement Date”): (A) 4,305,119 shares of Company Common Stock were issued and outstanding, and (B) no shares of Company Preferred Stock were issued and outstanding;
(b) As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Capital Stock have been are, and all such shares that may be issued prior to the Effective Time will be when issued, duly authorized and are authorized, validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding At the close of business on December 15, 2016, (A) no shares of Company Common Stock have been issued and granted were held by the Company in compliance in all material respects with its treasury, (iB) 956,006 shares of Company Common Stock were issuable upon the exercise, settlement or vesting of outstanding Company Options, (C) 84,216 shares of Company Common Stock were issuable upon the settlement or vesting of outstanding Company RSUs (assuming achievement of applicable securities Laws and other applicable Law performance goals at target value), (D) 10,974 shares of Company Common Stock were issuable upon the settlement of outstanding Company DSUs, and (iiE) all requirements 279,903 Company Restricted Shares were outstanding. Except as set forth in applicable Contracts. As of above, at the close of business on the Measurement DateDecember 15, except as set forth in this Section 4.2 and in the Transaction Support Agreement2016, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; Company were issued or outstanding. Since December 15, 2016 to the date of this Agreement, (21) there have been no securities of issuances by the Company or any Subsidiary of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 capital stock or other voting securities of the Company, other than issuances of shares pursuant to the exercise, settlement or obligating vesting of Company Options, Company RSUs, Company DSUs, in each case, outstanding as of December 15, 2016, and (2) there have been no issuances by the Company of any Company Equity Awards, options, warrants, other rights to acquire shares of capital stock of the Company or other rights that give the holder thereof any Subsidiary economic interest of a nature accruing to the holders of Company Common Stock. Section 4.2(b)(i) of the Company Disclosure Letter sets forth a true and correct summary of all outstanding Company Equity Awards as of December 15, 2016, and specifies, with respect to each such Company Equity Award: (A) the name of the award holder, (B) the type of Company Equity Award (Company Option, Company RSU, Company DSU or Company Restricted Share), (C) the number of shares of Company Common Stock subject to such Company Equity Award, (D) the date of grant, extend and (E) the exercise price per share of Company Common Stock (for Company Options only). Each Company Option (I) was granted in compliance with all applicable Laws and all of the terms and conditions of the Stock Plan of the Company pursuant to which it was issued, (II) has an exercise price per share of Company Common Stock equal to or enter into 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 the Company’s board of directors or the compensation committee of the board of directors of the Company, as applicable, actually awarded such Company Option. All shares of Company Common Stock issuable in respect of grants of Company Options, Company RSUs, Company DSUs and Company Restricted Shares were properly registered under the Securities Act or qualified on the grant date for exemption from registration under the Securities Act and other applicable laws (including state “blue sky” laws). The shares of Company Common Stock available for issuance under the Stock Plans of the Company have been properly registered pursuant to the Securities Act on a Form S-8.
(ii) In the case of Parent, the share capital of Parent consists of 18,538,110 Parent Ordinary Shares issued and outstanding as of the close of business on December 19, 2016, which includes 61,209 Parent Ordinary Shares held in treasury. All outstanding Parent Ordinary Shares are, and all such shares that may be issued at or prior to the Effective Time will be when issued, duly authorized and validly issued as fully paid and non-assessable and not subject to preemptive rights, other than preferential subscription rights provided for by applicable French law and the statuts (by-laws) of Parent. At the close of business on December 19, 2016, 52,706 Parent Ordinary Shares were issuable upon the vesting, and satisfaction of other conditions specified with respect thereto, of actions gratuites. Except as set forth above, at the close of business on December 19, 2016, no shares in the capital of Parent or other voting securities of Parent were issued or outstanding. Since December 19, 2016 to the date of this Agreement, (A) there have been no issuances by Parent of shares in the capital of Parent or other voting equity securities of Parent, and (B) there have been no issuances by Parent of actions gratuites, options, warrants, other rights to acquire shares in the capital of Parent or other rights that give the holder thereof any economic interest of a nature accruing to the holders of Parent Ordinary Shares, provided that, the accrual to shareholders from time to time of double voting rights, in accordance with French law and the statuts (by-laws) of Parent, shall not be deemed to be an issuance of a right to any person. Each action gratuite was issued in compliance with all applicable Laws and all of the terms and conditions pursuant to which it was issued. All Parent Ordinary Shares issuable in respect of actions gratuites were properly registered under applicable Laws or qualified on the grant date for exemption from registration under such option, warrant, subscription, call, right, commitment or agreementapplicable Laws. Other than as described above, no Person has any right to acquire (whether or not vested, contractual or otherwise) from Parent any Parent Ordinary Shares, other equity securities of Parent, or other securities convertible into or exchangeable for Parent Ordinary Shares, or other equity securities of Parent.
(iii) Such Party owns, directly or indirectly, all shares of capital stock of all of its Subsidiaries. No Subsidiary of such Party owns any shares of capital stock of such Party. Except for its interests in its Subsidiaries, such Party does not own, directly or indirectly, any capital stock of, or other equity interests in, any person. There are no bonds, debentures, notes or other Indebtedness of such Party or any of its Subsidiaries that give the Transaction Support holders thereof the right to vote (or that are convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of Company Common Stock may vote (“Voting Company Debt”), in the case of the Company, or on which holders of Parent Ordinary Shares may vote (“Voting Parent Debt”), in the case of Parent. Except for any obligations pursuant to this Agreement or as otherwise set forth above, as of the date of this Agreement, there are not no options, warrants, rights (including preemptive, conversion, stock appreciation, redemption or repurchase rights), convertible or exchangeable securities, stock-based performance units, Contracts or undertakings of any stockholder agreements, voting trusts or other agreements kind to which the Company such Party or any of its Subsidiaries is a party or by which it any of them is bound relating (A) obligating such Party or any such Subsidiary to the voting of any issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other securities of, or equity interests in, or any security convertible or exchangeable for any capital stock or other security of, or equity interest in, such Party or of any of its Subsidiaries, or any Voting Company Debt (in the case of the Company) or Voting Parent Debt (in the case of Parent), (B) obligating such Party or any such Subsidiary to issue, grant or enter into any such option, warrant, right, security, unit, Contract or undertaking or to declare or pay any dividend or distribution or (C) giving any Person the right to subscribe for or acquire any securities of such Party or any of its Subsidiaries, or to receive any economic interest of a nature accruing to the holders of Company Common Stock (in the case of the Company) or Parent Ordinary Shares (in the case of Parent) or otherwise based on the performance or value of shares of capital stock of such Party or any of its Subsidiaries. No Subsidiary As of the Company owns date of this Agreement, there are no outstanding obligations of such Party or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of Company Common Stock capital stock, other than (1) pursuant to the Benefit Plans of Parent or the Company, as applicable, or (2) options, warrants or other rights to acquire shares of capital stock of, or other equity interest in, such Party or any other shares of Company Capital Stock.
(d) such Subsidiary described above. As of the date of this Agreement, neither the Company nor such Party or any of its Subsidiaries (x) has, or has any (i) interests in a material joint venture orobligation to acquire, directly any equity interest, security or indirectly, equity securities or other similar equity interests right in any Person Person, (y) any Contract to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Person, or (iiz) obligations, whether contingent or otherwise, any Contract to consummate provide any material additional investment in any guarantee with respect to the obligations of another Person (other than such Party or its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letterwholly owned Subsidiaries).
(eiv) Except as set forth in Schedule 4.2 There are no voting agreements, voting trusts, shareholders agreements, proxies or other agreements to which such Party or any of its Subsidiaries is a party or by which such Party or any of its Subsidiaries is bound with respect to the voting of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests interest of each Subsidiary such Party or any of the Company are owned by Subsidiaries of such Party, or restricting the Companytransfer of, directly or indirectlyproviding registration rights with respect to, all such shares capital stock or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightsinterest.
Appears in 1 contract
Capital Structure. (ai) The authorized share capital of the Company is US$500,000 divided into 500,000,000 Shares. As of December 14, 2012 (the “Reference Date”): (A) 353,600,000 Shares were issued and outstanding, which number includes 3,699,306 Shares represented by ADSs held in brokerage accounts in the Company’s name and 16,700,184 Shares issued to the Depositary in anticipation of the vesting of Company Options and Company RSUs granted under the Company Plans, and (B) no Shares were held by the Company as treasury shares and no Shares were held by any Company Subsidiary. As of the Reference Date, there were (A) outstanding Company Options to purchase 28,609,344 Shares in the aggregate, (B) outstanding Unvested Company RSUs with respect to 8,112,006 Shares in the aggregate, and (C) outstanding Vested Company RSUs that have not been settled by the Company or Founder, as the case may be, with respect to 15,003,792 Shares in the aggregate. From the close of business on the Reference Date until the date of this Agreement, no options or warrants to purchase, or other instruments convertible into, Shares have been granted and no share capital of the Company have been issued, except for (A) Shares issued pursuant to the exercise of Company Options outstanding as of the close of business on the Reference Date in accordance with their respective terms, or (B) Shares issued upon the vesting and settlement of the Company RSUs outstanding as of the close of business on the Reference Date, in accordance with their respective terms.
(ii) Except as set forth above in Section 5.1(c)(i) and save for the ADSs and the Deposit Agreement, as of the date of this Agreement, the authorized capital stock of the Company consists of (i) 8,000,000 shares of Company Common Stock and (ii) 75,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6, 2020 (the “Measurement Date”): (A) 4,305,119 shares of Company Common Stock were issued and outstanding, and (B) no shares of Company Preferred Stock were issued and outstanding;
(b) As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding (1) shares of share capital or other securities of the Company, (2) securities of the Company convertible into or exchangeable for shares of share capital or other securities of the Company, or (3) options, warrants restricted share units, restricted shares, phantom shares, warrants, equity equivalent interests in the ownership or earnings of the Company or other similar rights, rights or other commitments or agreements to subscribe for, purchase or acquire from the Company Company, or any of its Subsidiaries any capital stock obligations of the Company to issue, any shares of share capital or other securities of the Company, or securities convertible into or exchangeable for shares of share capital or exercisable for capital stock other securities of the Company (the items in foregoing clauses (1), (2) and (3) are referred to collectively as the exercise“Company Securities”), conversion, purchase, exchange or other similar price thereof). All and (B) there are no outstanding shares of capital stock or other equity interests of the Subsidiaries obligations of the Company are owned by the Companyto repurchase, redeem or a direct or indirect wholly owned Subsidiary otherwise acquire any Company Securities. As of the Companydate hereof, are free and clear of all Encumbrances, other than Permitted Encumbrancesoutstanding Shares are, and have been all Shares which may be issued pursuant to the exercise of Company Options outstanding and upon the vesting and/or settlement of the Company RSUs outstanding will be, when issued in accordance with the terms thereof, duly authorized, validly issued, fully paid and nonassessablenonassessable and not subject to preemptive rights.
(A) Section 5.1(c)(ii)(A) of the Company Disclosure Schedule sets forth, as of the Reference Date, a list of all holders of Company Options and Company RSUs, and with respect to each Company Option and Company RSU, the date of grant, the number of Shares subject to each such award, the vesting provisions thereof (if any), and in the case of any Company Option, the price per share at which such Company Option may be exercised and the date on which such Company Option expires. Each grant of Company Options and Company RSUs was duly authorized no later than the date on which the grant of such Company Option and Company RSU was by its terms to be effective (the “Grant Date”) by all necessary corporate action, and such grant was made in material compliance with the terms of the applicable Company Plan, and in all material respects with all applicable Laws, including the rules and regulations of the NYSE. As of the Closing Date, the Company will have taken all actions such that each Company Option and Company RSU may, by its terms, be treated at the Effective Time as set forth in Section 4.3.
(iii) Each of the Company Subsidiaries, as of the date hereof, together with the jurisdiction of organization of each such Company Subsidiary, is listed on Section 5.1(c)(iii) of the Company Disclosure Schedule. Except as set forth in this Section 4.25.1(c)(iii) of the Company Disclosure Schedule, all of the issued and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants shares or other awards granted equity interests of each of the Company Subsidiaries are owned by the Company or another Company Subsidiary, free and clear of all Liens (other than Permitted Liens). Each of the outstanding shares or other equity interests of each of the Company Subsidiaries (other than the PRC Subsidiaries) is duly authorized, validly issued, fully paid and nonassessable (in accordance with each case, to the extent applicable). The registered capital of each PRC Subsidiary has been fully and duly paid up within the prescribed time. Except as set forth on Section 6.1(b)(ii)5.1(c)(iii) of the Company Disclosure Schedule, there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptionsconvertible securities or other agreements or commitments, calls, rights (including preemptive and appreciation rights), commitments or agreements to which in each case issued by the Company or any Subsidiary of the Company is a party or by which it is bound in any case obligating the Company or any Subsidiary of the Company to issueSubsidiary, 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the issuance, transfer, sales, voting or redemption (including any rights of conversion or exchange under any shares outstanding security or other instrument) for any of the capital stock or other equity interest of the interests of, or other ownership interests in, any Company or any of its SubsidiariesSubsidiary. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither except for the Company nor any Subsidiaries and as set forth on Section 5.1(c)(iii) of its Subsidiaries has any (i) interests in a material joint venture orthe Company Disclosure Schedule, the Company does not own or control, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of share capital stock of, or other equity ownership interests interest in, or any interest convertible into or exercisable or exchangeable for any shares of each Subsidiary of the Company are owned by the Companyshare capital of, directly or indirectlyother equity interest in, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightsany other Person.
Appears in 1 contract
Sources: Merger Agreement (ShangPharma Corp)
Capital Structure. (ai) As of the date of this Agreement, the The authorized capital stock of the Company consists of (iA) 8,000,000 shares of Company Common Stock 3,950,000,000 Shares and (iiB) 75,000,000 50,000,000 shares of preferred stock, par value $0.001 0.01 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Preferred Stock”). At As of the close of business on November 6May 16, 2020 (the “Measurement Date”): (A) 4,305,119 2014, 502,224,444 shares of Company the Common Stock were issued and outstanding, outstanding and (B) no other shares of Company the Common Stock or shares of the Preferred Stock were issued and outstanding;
(b) As outstanding on such date. All of the outstanding Shares have been duly authorized and validly issued and are fully paid and nonassessable. The Company has no Shares, shares of Preferred Stock or other shares of capital stock reserved for or subject to issuance, except that, as of the date of this Agreement, there are 58,775 shares an aggregate of 48,529,270 Shares reserved for issuance pursuant to the Company Common Plans identified in Section 5.1(b)(i)(A) of the Company Disclosure Letter as being the only Company Plans pursuant to which Shares may be issued (the “Company Stock subject to Plans”). Section 5.1(b)(i)(B) of the Company Disclosure Letter contains a correct and complete list as of May 16, 2014 of the outstanding Company Options, Company SARs, Company Restricted Stock Units, Company Performance Stock Units and Company Awards under the Company Stock Plans, including the holder, date of grant, term, number of Shares and, where applicable, exercise price or reference price and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awardsvesting schedule.
(cii) All outstanding shares From May 16, 2014 to the execution of this Agreement, the Company has not issued any Shares except pursuant to the exercise of Company Common Options, Company SARs, Company Restricted Stock have been Units, Company Performance Stock Units and Company Awards outstanding on May 16, 2014 in accordance with their terms and, since May 16, 2014, except as permitted by this Agreement, the Company has not issued any Company Options, Company SARs, Company Restricted Stock Units, Company Performance Stock Units and Company Awards. Upon any issuance of any Shares in accordance with the terms of the Company Stock Plans, such Shares will be duly authorized authorized, validly issued and are validly issued, fully paid and non-assessable nonassessable and are not subject to preemptive rightsfree and clear of any lien, charge, pledge, security interest, claim or other encumbrance (each, a “Lien”). All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As Each of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests securities of each of the Company’s Subsidiaries of the Company are has been duly authorized and validly issued and is fully paid and nonassessable and owned by the Company, Company or by a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessableany Lien. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants There are no preemptive or other awards granted in accordance with Section 6.1(b)(ii)outstanding rights, there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptionsconversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or rights of any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which kind that obligate the Company or any of its Subsidiaries is a party to issue or by which it is bound relating to the voting of sell any shares of capital stock or other equity interest securities 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 securities of the Company or any of its Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued or outstanding. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter.
(iii) Section 5.1(b)(iii) of the Company Disclosure Letter sets forth (A) each of the Company’s Subsidiaries and the ownership interest of the Company in each such Subsidiary, as well as the ownership interest of any other Person or Persons in each such Subsidiary and (B) the Company’s or its Subsidiaries’ capital stock, equity interest or other direct or indirect ownership interest in any other Person other than (x) publicly traded non-equity securities held for investment which do not exceed 5% of the outstanding non-equity securities of any Person and (y) securities held by any employee benefit plan of the Company or any of its Subsidiaries or any trustee, agent or other fiduciary in such capacity under any such employee benefit plan. No Subsidiary of the Company owns any shares of Shares. The Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture ordoes not own, directly or indirectly, equity securities or other similar equity interests any voting interest in any Person or that requires an additional filing by Parent under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (iithe “HSR Act”).
(iv) obligations, whether contingent or otherwise, to consummate any Each Company Option and Company SAR (A) was granted in compliance in all material additional investment in any Person other than its Subsidiaries respects with all applicable Laws and its joint ventures listed on Schedule 4.2 all of the terms and conditions of the Company Disclosure Letter.
Stock Plans pursuant to which it was issued, (eB) Except as set forth in Schedule 4.2 has an exercise price or reference price per share of the Company Disclosure LetterCommon Stock, all as applicable, equal to or greater than the fair market value of a share of the issued and outstanding shares Common Stock on the date of capital stock such grant, (C) has a grant date identical to the date on which the Company’s Board of Directors or other equity ownership interests of each Subsidiary of the Compensation Committee actually awarded such Company are owned Option or on the date thereafter as specified by the Company, directly ’s Board of Directors or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 the Compensation Committee of the Company’s Board in their respective authorization of such Company Disclosure LetterOptions, (D) qualifies in all material respects for the Tax and accounting treatment afforded to such Company Option or Company SAR in the Company’s Tax Returns and the Company Reports, respectively, and (E) complies in all material respects with Section 409A of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightsthe Code.
Appears in 1 contract
Sources: Merger Agreement (At&t Inc.)
Capital Structure. (a) As of the date of this Agreementhereof, the authorized capital stock of the Company consists of (i) 8,000,000 15,000,000 shares of Company Common Stock and (ii) 75,000,000 10,000,000 shares of preferred stock, par value $0.001 .01 per share (“the "Company Preferred Stock” and"), together with the Company Common of which 200,000 shares have been designated as Series A Participating Preferred Stock, par value $.01 per share (the “"Company Capital Series A Preferred Stock”"). At the close of business on November 6September 16, 2020 2004, (the “Measurement Date”): (Ai) 4,305,119 5,260,577 shares of Company Common Stock were issued and outstanding, all of which were validly issued, fully paid and nonassessable and free of preemptive rights, (Bii) no shares of Company Common Stock were held in the treasury of the Company, (iii) no shares of Company Preferred Stock were issued and outstanding;
outstanding and 200,000 shares of Company Series A Preferred Stock were reserved for issuance pursuant to the Rights Agreement (bas defined in Section 3.26), (iv) 1,905,987 shares of Company Common Stock were reserved for issuance pursuant to options to purchase shares of Company Common Stock ("Company Stock Options") issued and outstanding pursuant to (x) the 1996 Plan, (y) the Company Second Amended and Restated 1994 Stock Option Plan and (z) the Company 1994 Special Performance Option Grant Plan (collectively, the "Company Stock Option Plans") and (v) the weighted average exercise price of all outstanding Company Stock Options with an exercise price per share of Company Common Stock less than the Merger Consideration was $5.18. The Company Stock Option Plans are the only benefit plans, programs, policies, arrangements or agreements of the Company or its Subsidiaries under which any securities of the Company are issuable. As of the date of this Agreement, there are 58,775 except as set forth above and except for the issuance of shares of Company Common Stock subject to outstanding upon the exercise of Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issuedOptions, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries voting securities of the Company are owned by the Companywere issued, reserved for issuance or a direct or indirect wholly owned Subsidiary outstanding. As of the Companydate of this Agreement, are free except (i) as set forth above and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except (ii) as set forth in Section 3.2 of the disclosure letter dated the date hereof and delivered on the date hereof by the Company to Parent, which letter relates to this Section 4.2, Agreement and except for changes since is designated the Measurement Date resulting from Company Disclosure Letter (the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii"Company Disclosure Letter"), there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments puts or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it any of them is bound relating obligating the Company or any of its Subsidiaries to the voting of issue, deliver, sell, purchase or redeem, or cause to be issued, delivered, sold, purchased or redeemed, any additional shares of capital stock (or other voting securities or equity interest equivalents) of the Company or any of its Subsidiaries. No Subsidiary of Subsidiaries or obligating the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has to grant, extend or enter into any (i) interests in a material joint venture orsuch option, directly warrant, call, right, put or indirectlyagreement. True, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries complete and its joint ventures listed on Schedule 4.2 correct copies of the Company Disclosure LetterCharter and the Bylaws of the Company, as amended (the "Company Bylaws"), have been delivered to Parent.
(eb) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and Each outstanding shares share of capital stock (or other voting security or equity ownership interests equivalent) of each Subsidiary of the Company are is duly authorized, validly issued, fully paid and nonassessable, and each such share (or other voting security or equity equivalent) is owned by the Company or another wholly owned Subsidiary of the Company (other than shares of CU Acceptance Corporation, which is majority owned by the Company), directly free and clear of all security interests, liens, Claims, pledges, third party rights or indirectlyrestrictions, all options, mortgages, title imperfections, defects, objections, easements, encroachments, rights of first refusal, agreements, limitations on voting rights, charges and other encumbrances of any nature whatsoever (collectively, "Liens") other than such shares Liens which (individually or equity ownership interests are set forth in Schedule 4.2 the aggregate) would not have a Material Adverse Effect on the Company. The Company does not have any outstanding bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company Disclosure Letteron any matter.
(c) Exhibit 21.1 to the Company's Annual Report on Form 10-K for the year ended December 31, 2003, as filed with the SEC (as defined in Section 3.5) (the "Company Annual Report"), was, at the time so filed, a true, accurate and correct statement in all material respects of all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free the information required to be set forth therein by the regulations of preemptive rightsthe SEC.
Appears in 1 contract
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 300,000,000 shares of Company Common Stock and (ii) 75,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6October 24, 2020 2014, (the “Measurement Date”): (Ai) 4,305,119 172,948,023 shares of Company Common Stock were issued and outstanding, (ii) 189,733 shares of Company Common Stock were held by the Company in its treasury and (Biii) 20,000,000 shares of Company Common Stock were reserved and available for issuance pursuant to the Company Stock Plan, including 16,899,728 shares of Company Common Stock issuable upon the exercise of outstanding Company Stock Options (whether or not presently exercisable). Except as set forth in this Section 4.03(a), at the close of business on October 24, 2014, no shares of capital stock or voting securities of, or other equity interests in, the Company Preferred Stock were issued and issued, reserved for issuance or outstanding;
(b) As . From the close of business on October 24, 2014 to the date of this Agreement, there are 58,775 have been no issuances by the Company of shares of capital stock or voting securities of, or other equity interests in, the Company, other than the issuance of Company Common Stock subject to outstanding upon the exercise of the Company Stock Awards Options outstanding at the close of business on October 24, 2014 and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awardsin accordance with their terms in effect at such time.
(cb) All outstanding shares of Company Common Stock have been duly authorized and are validly issuedare, fully paid and non-assessable and are not subject to preemptive rights. All outstanding and, at the time of issuance, all such shares of Company Common Stock have been that may be issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of upon the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants exercise or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock vesting of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exerciseStock Options will be, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessablenonassessable and not subject to, or issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the DGCL, the Company Charter, the Company By-laws or any Contract to which the Company is a party or otherwise bound. Except as set forth above in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii)4.03, there are no issued, reserved for issuance or outstanding: (1) , and there are no shares of Company Capital Stock, Voting Debt or other voting securities outstanding obligations of the Company; Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, (2x) no any capital stock of the Company or any Company Subsidiary or any securities of the Company or any Company Subsidiary of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stockcapital stock or voting securities of, Voting Debt or other voting securities of the Company; and (3) no optionsequity interests in, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company is a party Subsidiary, (y) any warrants, calls, options or by which it is bound in any case obligating other rights to acquire from the Company or any Subsidiary Company Subsidiary, or any other obligation of the Company or any Company Subsidiary to issue, deliver, deliver or sell, purchase, redeem or acquire, or cause to be issued, delivered, delivered or sold, purchasedany capital stock or voting securities of, redeemed or acquiredother equity interests in, additional the Company or any Company Subsidiary or (z) 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 the capital stock of the Company or any shares of capital stock of any Company Capital Stock or any Voting Debt or other voting securities Subsidiary, the value of the Company, any Company Subsidiary or obligating 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 to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreementCompany Subsidiary. Other than (1) the Transaction Support Agreementacquisition by the Company of shares of Company Common Stock in connection with the surrender of shares of Company Common Stock by holders of Company Stock Options in order to pay the exercise price thereof, (2) the withholding of shares of Company Common Stock to satisfy tax obligations with respect to awards granted pursuant to the Company Stock Plan and (3) the acquisition by the Company of awards granted pursuant to the Company Stock Plan in connection with the forfeiture of such awards, there are not any stockholder agreements, voting trusts or other agreements to which outstanding obligations of the Company or any of its the Company Subsidiaries is a party to repurchase, redeem or by which it is bound relating to the voting of otherwise acquire any shares of capital stock or voting securities or other equity interest interests of the Company or any Company Subsidiary or any securities, interests, warrants, calls, options or other rights referred to in clause (x), (y) or (z) of the immediately preceding sentence. There are no bonds, debentures, notes or other Indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote (collectively, “Company Voting Debt”). Other than as contemplated by this Agreement or the Transactions, neither the Company nor any of the Company Subsidiaries nor any of the Company’s stockholders is a party to any voting agreement with respect to the voting of any capital stock or voting securities of, or other equity interests in, the Company. Neither the Company nor any of the Company Subsidiaries 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 of its the Company Subsidiaries.
(c) Merger Sub One’s authorized capital stock consists solely of 1,000 shares of common stock, par value $0.01 per share, of which, as of the date of this Agreement, 100 shares were issued and outstanding and none were reserved for issuance. All of the outstanding shares of common stock of Merger Sub One are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights and are held of record by Birch Partners, LP, free and clear of any Liens. Merger Sub Two’s authorized capital stock consists solely of 1,000 shares of common stock, par value $0.01 per share, of which, as of the date of this Agreement, 100 shares were issued and outstanding and none were reserved for issuance. All of the outstanding shares of common stock of Merger Sub Two are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights and are held of record by Merger Sub One, free and clear of any Liens.
(d) No Subsidiary subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Engility Holdings, Inc.)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 99,000,000 shares of Company Common Stock and (ii) 75,000,000 99,000 shares of preferred stockSeries A Preferred Stock, par value $0.001 0.10 per share (“Company the "Series A Preferred Stock” " and, together with the Company Common Stock, the “"Company Capital Stock”"). At the close of business on November 6October 2, 2020 2001: (the “Measurement Date”): (Ai) 4,305,119 52,902,540 shares of Company Common Stock were issued and outstanding, (ii) 5,192,812 shares of Company Common Stock were held by the Company in its treasury, (iii) 4,128,909 shares of Company Common Stock were subject to outstanding options to purchase Company Common Stock (the "Company Stock Options"), (iv) 1,182,168 shares of Company Common Stock were reserved for issuance pursuant to the Company Stock Purchase Plan and (Bv) 99,000 shares of Series A Preferred Stock were reserved for issuance (but not issued or outstanding) in connection with the rights (the "Company Rights") issued pursuant to the Rights Agreement dated as of June 13, 2000 (as amended and in effect as of the date hereof, the "Company Rights Agreement"), between the Company and Fleet National Bank, as Rights Agent. Except as set forth above, at the close of business on October 2, 2001, no shares of capital stock or other voting securities of the Company Preferred were issued, reserved for issuance or outstanding. All outstanding shares of Company Capital Stock were 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 outstandingnonassessable 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 BCL, the Company Charter, the Company By- laws or any Contract (as defined in Section 3.05(a)) to which the Company is a party or otherwise bound;
(b) As There are not any bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of Company Common Stock may vote ("Voting Company Debt");
(c) Except as set forth above or referred to in Section 3.16, and except pursuant to the GovConnect, Inc. 2000 Stock Incentive Plan, as of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding any options, warrants warrants, rights, convertible or other rights exchangeable securities, "phantom" stock rights, stock appreciation rights, stock-based performance units, commitments, Contracts, arrangements or undertakings of any kind to subscribe for, purchase or acquire from which the Company or any Company Subsidiary is a party or by which any of its Subsidiaries any capital stock of them is bound (i) obligating the Company or securities convertible into any Company Subsidiary to issue or exchangeable sell, or exercisable for capital stock of the Company (and the exercisecause to be issued or sold, conversion, purchase, exchange or other similar price thereof). All outstanding additional shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Companyin, or a direct any security convertible or indirect wholly owned Subsidiary exercisable for or exchangeable into any capital stock of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii)equity interest in, there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2) no securities of the Company or of any Company Subsidiary of the or any Voting Company convertible into or exchangeable or exercisable for shares of Company Capital Stock, Voting Debt or other voting securities of the Company; and (3ii) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company is a party or by which it is bound in any case obligating the Company or any Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment security, commitment, Contract, arrangement or agreementundertaking. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the The Company or any of its Subsidiaries is Disclosure Schedule sets forth a party or by which it is bound relating to the voting of any shares of capital stock or other equity interest true and complete list as of the date hereof of each Person who holds (x) an option to purchase Company or any of its Subsidiaries. No Subsidiary Common Stock as of the Company owns any date hereof with a per share exercise price less than or equal to $2.00 together with the number of shares of Company Common Stock subject to such option, the option price of such option, whether such option is intended to qualify as an ISO, the number of such options that are vested as of the date hereof (including whether and to what extent the vesting of such options shall be accelerated by the transactions contemplated by this Agreement or by termination of employment or change in position following consummation of the Merger) and the expiration date of such option, and (y) any other right, directly or indirectly, to acquire Company Common Stock at a price per share less than or equal to $2.00, together with the number of shares of Company Capital StockCommon Stock subject to such right. The Company Disclosure Schedule sets forth the total number of ISOs, nonqualified options and such other rights outstanding on the date hereof with a per share exercise price less than or equal to $2.00. All options issued pursuant to the Company Stock Option Plans shall be terminated or otherwise be cancelled at the Effective Time other than options issued pursuant to the Company's 1996 Stock Plan and 1998 Acquisition Stock Option Plan.
(d) As of the date of this Agreement, neither there are not any outstanding contractual obligations of the Company nor any of its Subsidiaries has any (i) interests in a material joint venture orCompany, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, or any Company Subsidiary to consummate repurchase, redeem or otherwise acquire any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 shares of capital stock of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the or any Company Disclosure Letter, all of the Subsidiary. There are no issued and outstanding shares of capital Company Common Stock that constitute restricted stock or other equity ownership interests that are otherwise subject to a repurchase or redemption right in favor of each Subsidiary the Company. The Company has made available to Parent a complete and correct copy of the Company are owned by Rights Agreement, as amended to the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 date of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightsthis Agreement.
Appears in 1 contract
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 22,000,000 shares of Company Common Stock and (ii) 75,000,000 3,000,000 shares of preferred stock, par value $0.001 per share undesignated capital stock (the “Company Preferred Undesignated Capital Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6April 14, 2020 2017, (the “Measurement Date”): (Ai) 4,305,119 5,867,127 shares of Company Common Stock were issued and outstanding, and ; (Bii) no shares of Company Preferred Undesignated Capital Stock were issued and outstanding;
; (biii) As 1,191,832 shares of Company Common Stock were reserved and available for issuance pursuant to the Company Stock Plans; (iv) 797,119 shares of Company Common Stock were issuable upon exercise of outstanding Company Stock Options, all of which were granted under Company Stock Plans; and (v) 46,415 shares of Company Common Stock were reserved for issuance under the Company’s 2015 Employee Stock Purchase Plan (the “ESPP”). Except as set forth in this Section 4.03(a), at the close of business on April 14, 2017, no shares of capital stock or voting securities of, or other equity interests in or equity-based awards of, the Company were issued, reserved for issuance or outstanding. Section 4.03(a) of the date Company Disclosure Letter sets forth a complete and accurate list, as of this Agreementthe close of business on April 14, there are 58,775 2017, of all outstanding Company Stock Options, indicating with respect to each such Company Stock Option the name of the holder thereof, the number of shares of Company Common Stock subject to outstanding such Company Stock Awards Option, the exercise price and 12,182 shares the date of grant and the vested and unvested portion. The Company Common Stock subject Options are the only awards granted and outstanding under any of the Company Stock Plans and no other equity or equity-based awards have been granted (except to outstanding Company RSU Awardsthe extent previously exercised, terminated or forfeited) or promised to be granted by the Company.
(cb) All outstanding shares of Company Common Stock have been duly authorized and are validly issuedare, fully paid and non-assessable and are not subject to preemptive rights. All outstanding and, at the time of issuance, all such shares that may be issued upon the exercise of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights Options pursuant to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (Stock Plans and the exerciseapplicable award agreements will be, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessablenonassessable and not subject to, or issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right, anti-dilutive rights or any similar right under any provision of any applicable Law, the Company Charter, the Company Bylaws or any Contract to which the Company is a party or otherwise bound. All grants of equity awards or other rights with respect to shares of Company Common Stock to current or former directors, officers, employees, agents or consultants of the Company or any Company Subsidiary have been made in accordance with the terms of the applicable Company Stock Plans and award agreements thereunder and any policy of the Company or the Company Board (including any committee thereof) relating to the grant of such awards or rights, and, to the Knowledge of the Company, with the terms of Section 409A of the Code. Except as set forth above in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii)4.03, there are not issued, reserved for issuance or outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities and there are not any outstanding obligations of the Company; Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, (2x) no any capital stock of the Company or any Company Subsidiary or any securities of the Company or any Company Subsidiary of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stockcapital stock or voting securities of, Voting Debt or other voting securities of the Company; and (3) no optionsequity interests in, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company is a party Subsidiary, (y) any warrants, calls, options, commitments, agreements, derivative contracts, forward sale contracts or by which it is bound in any case obligating other rights to acquire from the Company or any Subsidiary Company Subsidiary, or any other obligation of the Company or any Company Subsidiary to issue, deliver, deliver or sell, purchase, redeem or acquire, or cause to be issued, delivered, delivered or sold, purchasedany capital stock or voting securities of, redeemed or acquiredother equity interests in, additional shares the Company or any Company Subsidiary or (z) 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 Company Capital Stock or any Voting Debt or other voting securities shares of capital stock of any Company Subsidiary, the value of the Company, any Company Subsidiary or obligating 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 to grantor any Company Subsidiary.
(c) Except for acquisitions, extend or enter into any such optiondeemed acquisitions, warrantof Company Common Stock or other equity securities of the Company in connection with (i) the payment of the exercise price of Company Stock Options with Company Common Stock (including in connection with “net exercises”), subscription(ii) required tax withholding in connection with the exercise of Company Stock Options, call, right, commitment or agreement. Other than the Transaction Support Agreementand (iii) forfeitures of Company Stock Options, there are not any stockholder agreements, voting trusts or other agreements to which outstanding obligations of the Company or any of its the Company Subsidiaries is a party to repurchase, redeem or by which it is bound relating to the voting of otherwise acquire any shares of capital stock or voting securities or other equity interest interests of the Company or any Company Subsidiary or any securities, interests, warrants, calls, options, commitments, agreements, derivative contracts, forward sale contracts or other rights referred to in clause (x), (y) or (z) of Section 3.04(b). There are no debentures, bonds, 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 the Company’s shareholders or any Company Subsidiary’s equity holder may vote (“Company Voting Debt”). None of the Company or any of its Subsidiaries. No Subsidiary the Company Subsidiaries is a party to any stockholders’ agreement, voting trust agreement, registration rights agreement or any other agreement with respect to the voting, sale or transfer of any capital stock or voting securities of, or other equity interests in, the Company or any of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 Subsidiaries. None of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 or any of the Company Disclosure LetterSubsidiaries is a party to any agreement pursuant to which any Person is entitled to elect, all of the issued and outstanding shares of capital stock designate or other equity ownership interests of each Subsidiary nominate any director of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 any of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightsSubsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Mocon Inc)
Capital Structure. (a) As of immediately following the date of this Agreement, the authorized capital stock consummation of the Company consists of (i) 8,000,000 shares of Company Common Stock and (ii) 75,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock” and, together with transactions contemplated by the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6, 2020 (the “Measurement Date”): Contribution Agreement: (A) 4,305,119 shares of 29,807,692 Company Common Stock Units were issued and outstanding, plus the Additional Acquired Units and any Company Units issued in connection with the Ancillary Agreements pursuant to the A&R LLC Agreement; (B) no shares Company Units were subject to issuance upon exercise of outstanding options to acquire Company Preferred Stock were Units; and (C) no Voting Debt of the Company was issued and outstanding;
(b) As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding or authorized for issuance. All outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and Units are validly issued, fully paid and non-assessable (except as such non-assessability may be affected by Sections 18-607 and 18-804 of the Delaware Limited Liability Company Act) and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with rights or any other Encumbrances (i) except arising pursuant to applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As or arising under the Organizational Documents of the close Company or the Ancillary Agreements or in connection with Indebtedness of business the Tema (as more specifically described on Schedule 3.1(e)(iii) or Schedule 3.1(q)(i) of the Measurement Date, except as set forth Company Disclosure Schedule)). There are no outstanding equity interests in the Company other than the Company Units described in the first sentence of this Section 4.2 and in the Transaction Support Agreement, there 3.1(b). There are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company any Company Units or any of its Subsidiaries any capital stock of other equity interests in the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock Units or other equity interests of the Subsidiaries of the Company are owned by in the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii3.1(b), there are outstandingno: (1) no shares securities of the Company Capital Stockconvertible into, exchangeable or exercisable for Company Units, Voting Debt of the Company or other voting securities of the Company; , or (2) no securities of the Company or any Subsidiary of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 limited liability company interests or any Voting Debt of the Company or other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there There are not any stockholder member agreements, voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital StockUnits.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 1 contract
Sources: Business Combination Agreement (KLR Energy Acquisition Corp.)
Capital Structure. (ai) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 shares of Company Common Stock and (ii) 75,000,000 5,000,000 shares of preferred stock, par value $0.001 0.0001 per share (“Company Preferred Stock” and”) and (ii) 450,000,000 Shares. As of October 26, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6, 2020 2023 (the “Measurement Reference Date”): (A) 4,305,119 20,762,389 Shares were issued and outstanding, (B) no shares of Company Common Preferred Stock were issued and outstanding, and (BC) no shares of Company Preferred Stock 2,649,224 Shares were issued and outstanding;
(b) As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards Options, and 12,182 shares of Company Common Stock (D) 81,884 Shares were subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.25.01(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 6.01(b), and except for changes since the Measurement Company has no other equity or equity-based interests authorized, issued and/or outstanding. From the close of business on the Reference Date resulting from to the date of this Agreement, there have been no issuances by the Company of shares of capital stock or voting securities of, or other equity interests in, the Company other than the issuance of Shares upon the exercise of stock options Company Options or upon the vesting of Company RSUs Awards, in each case, outstanding at such date, or stock grants or other awards granted the close of business on the Reference Date and in accordance with their terms in effect at such time.
(ii) As of the date hereof, there is no outstanding Company Option granted under the Company Equity Plan or otherwise with a per share exercise price that is lower than the Merger Consideration. Each Company Option was granted in compliance with Section 6.1(b)(ii409A of the Code.
(iii) All of the outstanding Shares are duly authorized and validly issued in accordance with the Company’s organizational documents, as applicable, and are, or will be when issued, fully paid and nonassessable. 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 outstanding equity interests in each of 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. 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 and its Subsidiaries.
(iv) Except as set forth in the organizational documents of the Company and except as otherwise provided in Section 5.01(b)(i), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt preemptive rights or other voting securities 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 the Company; (2) no securities of any kind that obligate the Company or any Subsidiary of the Company its Subsidiaries to issue or sell any equity interests or any securities or obligations convertible or exchangeable into or exchangeable exercisable for, giving any Person a right to subscribe for or exercisable for shares of Company Capital Stockacquire or measured by reference to, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which any equity interests in the Company or any Subsidiary of its Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(v) Neither the Company is a party nor any of its Subsidiaries has any outstanding bonds, debentures, notes or by other obligations the holders of which it is bound have the right to vote (or convertible into or exercisable for securities having the right to vote) with the holders of equity interests in any case obligating the Company or any Subsidiary of its Subsidiaries on any matter.
(vi) Except for 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction and Support Agreement, there are not any stockholder agreementsno voting trusts, voting trusts proxies or other agreements or understandings to which the Company or any of its Subsidiaries is a party or by which it is bound relating with respect to the voting or registration of any shares of capital stock the Shares or other equity interest of the Company or any of its Subsidiaries. No Subsidiary .
(vii) Except with respect to the ownership of any equity or long-term debt securities between or among the Company or any of its Subsidiaries, none of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture orowns, directly or indirectly, any equity or long-term debt securities or other similar equity interests in of any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure LetterPerson.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 1 contract
Sources: Merger Agreement (Eargo, Inc.)
Capital Structure. (ai) As of the date of this Agreement, the The authorized capital stock of the Company consists of (iA) 8,000,000 shares of Company Common Stock 125,000,000 Shares and (iiB) 75,000,000 shares of 5,000,000 preferred stockshares, par value $0.001 per share 0.01 (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital StockPreferred Shares”). At As of the close of business on November 68, 2020 2018, 40,608,362 Shares were issued and outstanding and no Preferred Shares were issued and outstanding on such date. All of the outstanding Shares have been duly authorized, validly issued, fully paid and nonassessable and free of preemptive rights, were issued in accordance with applicable Law and were not issued in violation of any preemptive or other similar rights. As of November 8, 2018, there were an aggregate of 2,346,972 Shares reserved for, and 1,970,511 Shares subject to, issuance pursuant to the Company Stock Plans. Except as provided in the preceding sentence and except for Shares that after the date hereof become reserved for issuance or subject to issuance as permitted under this Agreement, the Company has no Shares reserved for, or subject to, issuance. The Company has no Preferred Shares or other shares of capital stock reserved for or subject to issuance (it being understood that “other shares of capital stock” shall not include Shares). Section 5.1(b)(i)(B) of the Company Disclosure Letter contains a correct and complete list as of November 8, 2018 of (x) the number of Shares subject to outstanding Company Options under the Company Stock Plans, (y) the number of Shares subject to outstanding Company Restricted Stock Units under the Company Stock Plans and (z) the number of Shares subject to outstanding Company Performance Stock Units (assuming the achievement of performance criteria at maximum levels) under the Company Stock Plans, and the grant date, exercise price, if any, expiration date and vesting schedule, criteria or similar requirements of each such Company Option, Company Restricted Stock Unit and Company Performance Stock Unit. As of October 8, 2018, 238,304 Shares are reserved for issuance under the ESPP.
(ii) From November 8, 2018 (the “Measurement Specified Date”): ) to the execution of this Agreement, the Company has not issued any Shares except pursuant to the exercise of Company Options or the settlement of Company Restricted Stock Units and Company Performance Stock Units outstanding as of November 8, 2018, in accordance with their terms and, since November 8, 2018, except as permitted by this Agreement for the period following the date of this Agreement, the Company has not issued any Company Options, Company Restricted Stock Units or Company Performance Stock Units. All Company Options, Company Restricted Stock Units and Company Performance Stock Units are evidenced by stock option agreements or other award agreements in the forms previously made available to Parent. Upon any issuance of any Shares in accordance with the terms of the Company Stock Plans, such Shares will be duly authorized, validly issued and fully paid and nonassessable and free and clear of any lien, charge, pledge, security interest, claim, restriction, deed of trust, mortgage, hypothecation or other encumbrance (A) 4,305,119 each, a “Lien”). Each of the outstanding shares of Company Common Stock capital stock or other securities of each of the Company’s Subsidiaries has been duly authorized, validly issued, fully paid and nonassessable, were issued and outstandingin accordance with applicable Law, were not issued in violation of any preemptive or other similar rights, and (B) no shares are owned by the Company or by a direct or indirect wholly owned Subsidiary of Company Preferred Stock were issued the Company, free and outstanding;
(b) As clear of any Lien. Except as set forth in Section 5.1(b)(i), as of the date of this Agreement, there are 58,775 no preemptive or other outstanding rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, rights of first refusal, rights of first offer, restricted stock units, restricted stock, stock appreciation rights, “phantom” stock rights, performance units, equity-based compensation, commitments, agreements or rights of any kind that obligate the Company or any of its Subsidiaries to issue or sell any shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable capital stock or other equity or voting securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close Company or any of business on the Measurement Dateits Subsidiaries or any securities or obligations convertible or exchangeable into or exercisable for, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights giving any Person a right to subscribe for, purchase for or acquire from the Company or any of its Subsidiaries any capital stock of the Company equity or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2) no securities of the Company or any Subsidiary of its Subsidiaries, and no securities or obligations (contingent or otherwise) evidencing such rights are authorized, issued or outstanding. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stock, Voting Debt or other voting securities on any matter. As of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, date hereof there are not any stockholder agreements, no voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party or by which it is bound relating with respect to the voting or registration of any shares of the capital stock or other equity interest of the Company or any of its Subsidiaries, and to the Knowledge of the Company, no voting trusts or other agreements or understandings with respect to the voting or registration of the capital stock or other equity interest of the Company or any of its Subsidiaries is in effect. Since the Specified Date through the date hereof, the Company has not authorized, issued or repurchased any shares of its capital stock (other than in connection with the exercise, settlement or vesting of Company Options in accordance with their respective terms) or granted any Company Options.
(iii) Section 5.1(b)(iii) of the Company Disclosure Letter sets forth, as of the date of this Agreement, (A) each of the Company’s Subsidiaries, including (i) its name, (ii) its jurisdiction of organization, (iii) its form of organization, (iv) its authorized equity interests, (v) its issued and outstanding equity interests, including the number thereof, and (vi) the holder(s) of such issued and outstanding equity interests and (B) any other Person in which the Company or any of its Subsidiaries may hold capital stock or other equity interest that has a book value in excess of $10,000,000 (other than securities held by any employee benefit plan of the Company or any of its Subsidiaries or any trustee, agent or other fiduciary in such capacity under any such employee benefit plan). No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital StockShares.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 1 contract
Sources: Merger Agreement (Athenahealth Inc)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 100,000,000 shares of Company Common Stock and (ii) 75,000,000 20,000,000 shares of preferred stock, par value $0.001 0.0001 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6February 18, 2020 2014, (the “Measurement Date”): (Ai) 4,305,119 48,572,673 shares of Company Common Stock were issued and outstandingoutstanding (none of which were owned by the Company (as treasury stock or otherwise)), (ii) 5,160,032 shares of Company Common Stock were reserved for issuance in respect of current or future awards pursuant to the Company Stock Plans (of which 3,520,326 shares of Company Common Stock were subject to outstanding Company Stock Options and 1,088,934 were shares of Company Restricted Stock), (iii) 169,490 shares of Company Common Stock were reserved for issuance in respect of current or future awards pursuant to the Company ESPP, and (Biv) no shares of Company Preferred Stock were issued and or outstanding;.
(b) As The Company has delivered to Parent a correct and complete list, as of the date close of this Agreementbusiness on February 18, there are 58,775 2014, of all outstanding Company Stock Options and shares of Company Restricted Stock and other rights to purchase or receive shares of Company Common Stock granted under the Company Stock Plans or otherwise, the number of shares of Company Common Stock subject thereto (assuming target performance, if applicable), the vesting schedule, expiration dates and exercise prices thereof, in each case broken down as to each plan, agreement or other arrangement and as to each individual holder. The Company will no later than two (2) business days prior to the anticipated Closing Date, provide an updated list to Parent to reflect any changes thereto, which such list shall be correct and complete as of three (3) business days prior to the anticipated Closing Date. Except as set forth above in this Section 3.03 (or as otherwise provided to Parent pursuant to this Section 3.03(b)), at the close of business on February 18, 2014, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. Except as set forth above in this Section 3.03 (or as otherwise provided to Parent pursuant to this Section 3.03(b)), there are no outstanding Company Stock Awards and 12,182 stock appreciation rights, rights to receive shares of Company Common Stock subject on a deferred basis or other rights that are linked to outstanding the value of Company RSU Awards.
(c) Common Stock granted under the Company Stock Plans or otherwise. All outstanding shares of capital stock of the Company Common are, and all shares which may be issued pursuant to the Company Stock have been Plans and the Company ESPP will be, when issued in accordance with the terms thereof, duly authorized and are authorized, validly issued, fully paid and non-assessable nonassessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with .
(ic) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except Except as set forth above in this Section 4.2 and in the Transaction Support Agreement3.03, there are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which shareholders of the Company may vote. Except as set forth above in this Section 3.03 (or as otherwise provided to Parent pursuant to Section 3.03(b)), (i) there are not issued, reserved for issuance or outstanding options(A) any securities of the Company or any of its Subsidiaries convertible into or exchangeable or exercisable for shares of capital stock or voting securities of the Company or any of its Subsidiaries or (B) any warrants, warrants calls, options or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries Subsidiaries, or any capital stock 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 of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; its Subsidiaries and (3ii) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which there are not any outstanding obligations of the Company or any Subsidiary of the Company is a party its Subsidiaries to repurchase, redeem or by which it is bound in otherwise acquire any case obligating the Company such securities or any Subsidiary of the Company to issue, deliver, deliver or sell, purchase, redeem or acquire, or cause to be issued, delivered, delivered or sold, purchased, redeemed or acquired, additional shares of Company Capital Stock or any Voting Debt or other voting securities of the Company, or obligating the Company or any Subsidiary such securities. Except as set forth on Section 3.03(c) of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this AgreementDisclosure Letter, neither the Company nor any of its Subsidiaries has is a party to any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in voting agreement with respect to the voting of any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Lettersuch securities.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 1 contract
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (ia) 8,000,000 2,000,000,000 shares of Company Common Stock and (iib) 75,000,000 200,000,000 shares of preferred stock, par value $0.001 0.01 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”)share. At the close of business on November 6April 29, 2020 2011 (the “"Measurement Date”): (Aa) 4,305,119 204,161,930 shares of Company Common Stock were issued and outstandingoutstanding (including 1,414,954 Restricted Shares), and (B) no shares of Company Preferred Stock were issued and outstanding;
(b) As of the date of this Agreement, there are 58,775 55,006 shares of Company Common Stock subject to outstanding were held by the Company Stock Awards and 12,182 in its Treasury, (c) 6,370,528 shares of Company Common Stock were subject to issued and outstanding Company RSU Awards.
Stock Options to purchase Company Common Stock granted under Company Stock Plan, and (cd) All up to 353,927 shares of the Company Common Stock were subject to issued and outstanding Restricted Share Unit awards issued to directors under the Company Stock Plan. No Company Subsidiary owns any shares of Company Common Stock have been duly authorized and are validly issuedStock. The Company has made available to Parent a list, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As as of the close of business on the Measurement Date, except of the holders of outstanding Company Stock Options, unvested Restricted Shares, Restricted Share Units and other stock awards and the number, exercise prices, vesting schedules, performance targets, expiration dates and other forfeiture provisions of each grant to such holders. All outstanding shares of capital stock of the Company are, and all shares that may be issued will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to or issued in violation of preemptive rights. Except as set forth otherwise provided in this Section 4.2 3.3 and in except with respect to the Transaction Support AgreementCompany’s 9.00% Convertible Senior Notes due 2012 (the “2012 Notes”) and 4.00% Convertible Senior Notes due 2017 (the “2017 Notes”), there are no not issued, reserved for issuance or outstanding options(i) any shares of capital stock or other voting securities of the Company or any Company Subsidiary, warrants (ii) any securities convertible into or exchangeable or exercisable for shares of capital stock or voting securities of the Company or any Company Subsidiary, or (iii) any warrants, calls, options or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries Company Subsidiary any capital stock of the Company stock, voting securities or securities convertible into or exchangeable or exercisable for capital stock or voting securities of the Company or any Company Subsidiary. From the Measurement Date to the date of this Agreement, (and x) there have been no issuances by the exercise, conversion, purchase, exchange Company or any of the Company Subsidiaries of shares of capital stock or other similar price thereof). All outstanding equity interests or other voting securities of the Company, other than issuances of shares of Company Common Stock pursuant to the Company Stock Plan or the 2012 Notes or 2017 Notes, and (y) there have been no issuances by the Company or any of the Company Subsidiaries of options, warrants, other rights to acquire shares of capital stock or other equity interests of the Subsidiaries Company or any of the Company Subsidiaries or other rights that give the holder thereof any economic benefit accruing to the holders of any Company Common Stock other than pursuant to the Company Stock Plans or the 2012 Notes or 2017 Notes. Except for the 2012 Notes and the 2017 Notes, there are owned by no bonds, debentures, notes or other indebtedness of the CompanyCompany having the right to vote (or convertible into, or a direct or indirect wholly owned Subsidiary exchangeable for, securities having the right to vote) on any matters on which holders of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessableany Company Common Stock may vote. Except as set forth otherwise provided in this Section 4.2, 3.3 and except for changes since with respect to obligations under the Measurement Date resulting from 2012 Notes, 2017 Notes and the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii)Company Stock Plan, there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2) no securities outstanding obligations of the Company or any Company Subsidiary of the Company to (A) issue, deliver or sell, or cause to be issued, delivered or sold, any capital stock, voting securities or securities convertible into or exchangeable or exercisable for shares of Company Capital Stock, Voting Debt capital stock or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Company Subsidiary of or (B) repurchase, redeem or otherwise acquire any such securities. Neither the Company nor any Company Subsidiary is a party or by which it is bound in to 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating agreement with respect to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stocksuch securities.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 1 contract
Sources: Merger Agreement (Arch Coal Inc)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (iA) 8,000,000 shares of 60,000,000 Company Common Stock and (ii) 75,000,000 shares of preferred stockShares, par value $0.001 0.01 per share, (B) 2,000,000 shares of convertible preferred stock of the Company, par value $0.01 per share (the “Company Convertible Preferred Stock” and”), and (C) 3,000,000 shares of serial preferred stock of the Company, par value $0.01 per share (together with the Company Common Convertible Preferred Stock, the “Company Capital Preferred Stock”). At the close of business on November 611, 2020 (the “Measurement Capitalization Date”): (Ai) 4,305,119 shares of 35,588,775 Company Common Stock Shares were issued and outstanding, and ; (Bii) no shares of Company Preferred Stock were issued and outstanding;
; (biv) As no Company Shares were held by the Company in its treasury; (v) 429,000 Company Shares were issued and outstanding in the form of Company Restricted Stock Awards; and (vi) 2,970,000 Company Shares were reserved for the future grant of Company Equity Awards under the Company Stock Plans. From the close of business on the Capitalization Date to the date of this Agreement, there are 58,775 shares of the Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are has not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and or granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, any Equity Securities except as set forth in this on Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock 3.03(a) of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company Disclosure Letter.
(and the exercise, conversion, purchase, exchange or other similar price thereof). b) All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the CompanyShares, or a direct or indirect wholly owned Subsidiary of the Companyincluding Company Shares underlying Company Restricted Stock Awards, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessablenonassessable and not subject to, or issued in violation of, any preemptive right. Except As of the date of this Agreement, other than as set forth in this Section 4.2, and except for changes since 3.03(b) of the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii)Company Disclosure Letter, there are no issued, reserved for issuance or outstanding: , and there are not any outstanding obligations of any Company Entity to issue, deliver or sell, or cause to be issued, delivered or sold, (1i) no shares any capital stock of any Company Capital Stock, Voting Debt Entity or other voting any securities of the Company; (2) no securities of the any Company or any Subsidiary of the Company Entity convertible into or exchangeable or exercisable for shares of Company Capital Stockcapital stock or voting securities of, Voting Debt or other voting securities of the Company; and equity interests in, any Company Entity or (3ii) no options, any warrants, subscriptions, calls, options or other rights (including preemptive and appreciation rights)to acquire from any Company Entity, commitments or agreements to which the Company or any Subsidiary other obligation of the any Company is a party or by which it is bound in any case obligating the Company or any Subsidiary of the Company Entity to issue, deliver, deliver or sell, purchase, redeem or acquire, or cause to be issued, delivered, delivered or sold, purchasedany capital stock or voting securities of, redeemed or acquired, additional shares of Company Capital Stock or any Voting Debt or other voting securities of equity interests in, any Company Entity (the Companyforegoing clauses (i) and (ii), or obligating the Company or any Subsidiary collectively, “Equity Securities”). Except as set forth in Section 3.03(b) of the Company Disclosure Letter, no Company Entity has any outstanding obligation to grantrepurchase, extend redeem or enter into otherwise acquire any such optionEquity Securities.
(c) The Company does not (i) own or hold any equity securities, warrantownership interests or voting interests of, subscriptionor securities exchangeable therefor, callor investments in, right, commitment any other Person or agreement. Other than has the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements right to which the Company or acquire any of its Subsidiaries is a party the foregoing or by which it is bound relating (ii) have any obligation or has made any commitment to the voting of acquire any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or to provide funds to or make any investment (ii) obligationsin the form of a loan, whether contingent capital contribution or otherwise, to consummate any material additional investment ) in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure LetterPerson.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 1 contract
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 12,600,000 shares of Company Common Stock and (ii) 75,000,000 5,100,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock” and, together with the Company Common Stock, of which 5,083,980 shares have been designated as Series S Convertible Preferred Stock (the “Company Capital Series S Preferred Stock”). At the close of business on November 6July 1, 2020 2003, (i) 2,230,522 shares of Company Common Stock and 5,083,980 shares of Series S Preferred Stock were issued and outstanding, all of which were validly issued, fully paid and nonassessable and free of preemptive rights, (ii) no shares of Company Common Stock and no shares of Series S Preferred Stock were held by Subsidiaries of the “Measurement Date”): Company and (Aiii) 4,305,119 30,000 shares of Company Common Stock were issued and outstanding, and reserved for issuance pursuant to outstanding options (Bthe “Company Stock Options”) no shares of Company Preferred Stock were issued and outstanding;
(b) As of the date of this Agreement, there are 58,775 to purchase shares of Company Common Stock subject pursuant to outstanding the Company Stock Awards Option Agreements (as hereinafter defined). All Company Stock Options and 12,182 all shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding issuable upon the exercise of such options are free and clear of any preemptive rights. Since July 1, 2003 except as set forth above and except for the issuance of shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding upon the exercise of the Company Stock Options or upon the conversion of shares of Company Common Stock have been issued and granted Preferred Stock, in compliance each case, in all material respects accordance with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Dateterms thereof, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries voting securities of the Company are owned by the Companyissued, reserved for issuance or a direct or indirect wholly owned Subsidiary outstanding. All of the Company, are free and clear Company Stock Options not exercised prior to the Effective Time will be cancelled as a result of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessablethe execution of this Agreement or consummation of the transactions contemplated hereby. Except as set forth in this Section 4.2, above and except for changes since upon conversion of the Measurement Date resulting from the exercise outstanding shares of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii)Company Preferred Stock, there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments puts or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it any of them is bound relating obligating the Company or any of its Subsidiaries to the voting of issue, deliver, sell or redeem, or cause to be issued, delivered, sold or redeemed, any additional shares of capital stock (or other voting securities or equity interest equivalents) of the Company or any of its Subsidiaries. No Subsidiary of Subsidiaries or obligating the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has to grant, extend or enter into any such option, warrant, call, right, put or agreement. True and complete copies of (iw) interests in a material joint venture orthe Company Charter, directly or indirectly, equity securities or other similar equity interests in any Person or (iix) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 the Bylaws of the Company, as amended (the “Company Disclosure Letter.
Bylaws”), (ey) Except as set forth in Schedule 4.2 the Stock Option Agreement dated April 20, 1998 between the Company and R▇▇▇▇▇ ▇▇▇▇▇▇ and the Stock Option Agreement dated October 18, 2000 between the Company and S▇▇▇▇▇▇ ▇▇▇▇▇▇ (collectively, the “Company Stock Option Agreements”) and (z) each of the Company Disclosure Letter, all of the issued Restricted Stock Agreements and other agreements pursuant to which currently outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned were originally issued by the Company, directly or indirectly, all such shares or equity ownership interests are Company set forth in Schedule 4.2 Section 3.2(a) of the Company Disclosure Letter (collectively, the “Restricted Stock Agreements”) have been delivered to Parent. For purposes of this Agreement, “Knowledge of the Company” means the actual knowledge of the individuals identified on Section 3.2(a) of the Company Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 1 contract
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (iA) 8,000,000 shares of 60,000,000 Company Common Stock and (ii) 75,000,000 shares of preferred stockShares, par value $0.001 0.20 per share, (B) 25,000 shares of preferred stock of the Company, par value $100.00 per share (the “Company Preferred Stock” and”) and (C) 475,000 shares of serial preferred stock of the Company, together with the Company Common Stock, par value $1.00 per share (the “Company Capital Serial Preferred Stock”). At the close of business on November 6October 5, 2020 2018 (the “Measurement Capitalization Date”): (Ai) 4,305,119 shares of 29,453,140 Company Common Stock Shares were issued and outstanding, and ; (Bii) no shares of Company Preferred Stock were issued and outstanding;
; (biii) As no shares of Company Serial Preferred Stock were issued and outstanding; (iv) 3,737,327 Company Shares were held by the Company in its treasury; (v) 1,162,730 Company Shares were subject to issuance upon the exercise of outstanding Company Options (whether or not presently exercisable); (vi) 100,227 Company Shares were subject to issuance upon the settlement of outstanding Company RSUs; (vii) 115,083 Company Shares were subject to issuance upon the settlement of outstanding Company PSUs assuming achievement at target levels; (viii) 2,120,585 Company Shares were reserved for the future grant of Company Equity Awards under the Company Stock Plans; and (ix) 438,111 Company Shares were reserved for the future issuance under the Company ESPP or for purposes of the Company ▇▇▇▇ Scheme. From the close of business on the Capitalization Date to the date of this Agreement, there are 58,775 shares of the Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are has not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and or granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, any Equity Securities except as set forth in this on Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock 3.03(a) of the Company or securities convertible into or exchangeable or exercisable for capital stock Disclosure Letter.
(b) All outstanding Company Shares are, and all Company Shares that may be issued upon the exercise of the Company (Options and the exercisesettlement of Company RSUs and Company PSUs shall be, conversionwhen issued, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessablenonassessable and not subject to, or issued in violation of, any preemptive right. Except As of the date of this Agreement, other than as set forth in this Section 4.23.03(b) of the Company Disclosure Letter, and except for changes since or, with respect to any foreign Subsidiary of the Measurement Date resulting from the exercise of stock options outstanding at such dateCompany, directors’ qualifying shares or stock grants or other awards granted in accordance with Section 6.1(b)(ii)similar arrangements required by applicable Law, there are no issued, reserved for issuance or outstanding: , and there are not any outstanding obligations of any Company Entity to issue, deliver or sell, or cause to be issued, delivered or sold, (1i) no shares any capital stock of any Company Capital Stock, Voting Debt Entity or other voting any securities of the Company; (2) no securities of the any Company or any Subsidiary of the Company Entity convertible into or exchangeable or exercisable for shares of Company Capital Stockcapital stock or voting securities of, Voting Debt or other voting securities of the Company; and equity interests in, any Company Entity or (3ii) no options, any warrants, subscriptions, calls, options or other rights (including preemptive and appreciation rights)to acquire from any Company Entity, commitments or agreements to which the Company or any Subsidiary other obligation of the any Company is a party or by which it is bound in any case obligating the Company or any Subsidiary of the Company Entity to issue, deliver, deliver or sell, purchase, redeem or acquire, or cause to be issued, delivered, delivered or sold, purchasedany capital stock or voting securities of, redeemed or acquired, additional shares of Company Capital Stock or any Voting Debt or other voting securities of equity interests in, any Company Entity (the Companyforegoing clauses (i) and (ii), or obligating the Company or any Subsidiary collectively, “Equity Securities”). Except as set forth in Section 3.03(b) of the Company Disclosure Letter, no Company Entity has any outstanding obligation to grantrepurchase, extend redeem or enter into otherwise acquire any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which Equity Securities.
(c) Except for the Company Subsidiaries and investments in marketable securities and cash equivalents, none of the Company nor any Company Subsidiary (i) owns or holds any equity 829649.04-LACSR01A - MSW securities, ownership interests or voting interests of, or securities exchangeable therefor, or investments in, any other Person or has the right to acquire any of its Subsidiaries is a party the foregoing or by which it is bound relating (ii) has any obligation or has made any commitment to the voting of acquire any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or to provide funds to or make any investment (ii) obligationsin the form of a loan, whether contingent capital contribution or otherwise, to consummate any material additional investment ) in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure LetterPerson.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 1 contract
Capital Structure. (a) As of the date of this Agreement, the authorized capital stock of the Company consists of (i) 8,000,000 300,000,000 shares of Company Common Stock and (ii) 75,000,000 15,000,000 shares of preferred stock, par value $0.001 0.01 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6March 27, 2020 (the “Measurement Date”): 2018: (A) 4,305,119 159,424,290 shares of Company Common Stock were issued and outstanding, outstanding and (B) no shares of Company Preferred Stock were issued and outstanding;
; (bB) As of the date of this Agreement, there are 58,775 The shares of Company Common Stock subject to issued and outstanding Company include 805,318 shares of Time-Based Restricted Stock Awards and 12,182 1,353,792 shares of Performance-Based Restricted Stock; and (C) 6,131,161 shares of Company Common Stock subject remained available for issuance pursuant to outstanding the Company RSU AwardsStock Plan.
(cb) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contractscontracts (including the Company Stock Plan). As of the close of business on the Measurement DateMarch 27, 2018, except as set forth in this Section 4.2 and in the Transaction Support Agreement4.2, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly wholly-owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, Encumbrances and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1A) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; , (2B) no securities of the Company or any Subsidiary of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stock, Voting Debt or other voting securities of the Company; Company and (3C) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Stockholders’ Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) . As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i1) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii2) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 1 contract
Sources: Merger Agreement (RSP Permian, Inc.)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the ----------------- Company consists of (i) 8,000,000 10,000,000 shares of Company Common Stock and (ii) 75,000,000 1,000,000 shares of preferred stock, par value $0.001 .01 per share (“"Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”"). At the close of business on November 6May 12, 2020 1998, (the “Measurement Date”): (Ai)(A) 4,305,119 4,647,809 shares of Company Common Stock were issued and outstanding, all of which were validly issued, fully paid and nonassessable and (B) no shares of Company Junior Participating Preferred Stock were issued and outstanding;
(b) As , all of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are which were validly issued, fully paid and non-assessable nonassessable and are not subject to preemptive rights. All outstanding (ii)(A) 58,000 shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law were reserved for issuance upon the exercise of warrants and (iiB) all requirements 500,350 shares of Company Common Stock were reserved for issuance upon the exercise of outstanding stock options ("Company Stock Options") granted pursuant to the Davel Communications Group, Inc. Director Stock Option Plan and the Davel Communications Group, Inc. Stock Option Plan. Except as set forth in applicable Contracts. As of above, at the close of business on May 14, 1998, and except pursuant to the Measurement DateRights Agreement, dated April 22, 1998, by and between the Company and ChaseMellon Shareholder Services, L.L.C. (the "Rights Agreement"), no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding, and, since such date, no shares of capital stock or other voting securities or options in respect thereof have been issued except upon the exercise of any Company Stock Options. Except as set forth in this Section 4.2 4.3 and except for Company Stock Options granted in the Transaction Support Agreementordinary course of business to employees and directors of the Company or its Subsidiaries and covering not in excess of an aggregate of 350,000 shares of Company Common Stock for all such grants during the period from the date of this Agreement through the Closing Date, there are no outstanding not now, and at the Closing Date there will not be, any options, warrants warrants, calls, rights, commitments, agreements, arrangements or other rights undertakings of any kind to subscribe for, purchase or acquire from which the Company or any of its Subsidiaries is a party or by which any of them is bound relating to the issued or unissued capital stock of the Company or securities convertible into any of its Subsidiaries, or exchangeable or exercisable for capital stock of obligating the Company (and the exerciseor any of its Subsidiaries to issue, conversiontransfer, purchase, exchange grant or other similar price thereof). All outstanding sell any shares of capital stock or other equity interests of the Subsidiaries of in, the Company or any of its Subsidiaries or obligating the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, commitment, agreement, arrangement or understanding. All shares of Company Common Stock subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are owned by the Companyissuable, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been will be duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Rights Agreement, there are not any stockholder agreements, voting trusts or other agreements to which outstanding contractual obligations of the Company or any of its Subsidiaries is a party to repurchase, redeem or by which it is bound relating to the voting of otherwise acquire any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary , or make any material investment (in the form of a loan, capital contribution or otherwise) in, any of the Company owns any shares of Company Common Stock Company's Subsidiaries or any other shares of Company Capital Stockperson.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 1 contract
Sources: Stock Purchase Agreement (Davel Communications Group Inc)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 175,000,000 shares of Company Common Stock Stock, and (ii) 75,000,000 25,000,000 shares of preferred stock, par value $0.001 0.0001 per share (the “Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6September 29, 2020 2022 (the “Measurement Date”): ), (A) 4,305,119 32,962,733 shares of Company Common Stock, respectively, were issued and outstanding (none of which were subject to vesting or other forfeiture provisions), (B) 5,392,958 shares of Company Common Stock were issued and outstandingsubject to Company Options, (C) 15,686 shares of Company Common Stock were subject to Company Warrants, and (BD) no shares of Company Preferred Stock were issued and outstanding;
(b) As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements Except as set forth in applicable Contracts. As of the close of business above, on the Measurement Date, except as set forth in this Section 4.2 and in no shares of capital stock of the Transaction Support AgreementCompany were issued, reserved for issuance or outstanding. As of the Measurement Date, there are have been no outstanding options, warrants or other rights to subscribe for, purchase or acquire from issuances by the Company or any of its Subsidiaries any shares of capital stock of the Company or securities options, warrants, calls, puts, convertible into or exchangeable securities, subscriptions, phantom stock, stock appreciation rights, stock-based performance units or exercisable for other rights to acquire shares of capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). rights that give the holder thereof any economic interest of a nature accruing to the holders of Company Common Stock, other than the rights under the Company Stock Plans and any related award agreements.
(b) All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, and all such shares that may be issued or granted prior to the Effective Time, when issued or granted, (i) are free and clear of all Encumbrancesor will be, other than Permitted Encumbrancesas applicable, and have been duly authorized, validly issued, fully paid and nonassessable. nonassessable and not subject to preemptive or similar rights, purchase options, calls or rights of first refusal or similar rights or, to the Knowledge of the Company, any other Liens, in each case other than Permitted Liens and (ii) issued or granted in compliance in all material respects with applicable securities Laws and other applicable Law and all requirements set forth in applicable Contracts or Organizational Documents.
(c) Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii4.2(a), there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, calls, puts, convertible or exchangeable securities, subscriptions, callsphantom stock, rights (including preemptive and stock appreciation rights), commitments stock-based performance units or agreements other rights to which acquire shares of capital stock of the Company or any Subsidiary of Contracts to which the Company is a party or by which it the Company is bound in any case (i) obligating the Company or any Subsidiary of the Company to issue, deliver, deliver or sell, purchase, redeem or acquire, or cause to be issued, delivered, delivered or sold, purchased, redeemed or acquired, additional shares of Company Capital Stock capital stock of, or any Voting Debt security convertible or other voting securities exchangeable for any shares of capital stock of the Company, or (ii) obligating the Company or any Subsidiary of the Company to grantissue, extend grant or enter into into, as applicable, any such option, warrant, subscriptionsecurity, callunit, rightright or Contract, commitment (iii) that give any person the right to receive any economic interest of any nature accruing to the holders of Company Common Stock, or agreement. Other than the Transaction Support Agreement, there (iv) that are not any stockholder agreements, voting trusts rights plans (or other agreements similar plans commonly referred to as a “poison pill” or Contracts under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities). There are no outstanding contractual obligations of its Subsidiaries is a party the Company to repurchase, redeem or by which it is bound relating to the voting of otherwise acquire any shares of capital stock or other equity interest of the Company or any options, warrants, calls, puts, convertible or exchangeable securities, subscriptions, phantom stock, stock appreciation rights, stock-based performance units or other rights to acquire shares of its Subsidiaries. No Subsidiary capital stock of the Company owns any Company, except for (A) the withholding of shares of Company Common Stock to satisfy Tax obligations with respect to awards granted pursuant to the Company Stock Plans and (B) in connection with Company Options upon forfeiture of awards or any other shares of Company Capital Stock.
(d) As payment of the date of this Agreement, neither strike price. Neither the Company nor any of its Subsidiaries Company Subsidiary has any (i) interests in a material joint venture oroutstanding bonds, directly or indirectlydebentures, equity securities notes or other similar equity interests in any Person or (ii) obligations, whether contingent the holders of which have the right to vote (or otherwisewhich are convertible into, exercisable for or exchangeable for securities having the right to consummate vote) with any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 holders of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests the Company on any matter. The Company has made available to Parent, with respect to each Company Option, as of the Measurement
(1) the holder of each Subsidiary Company Option; (2) the grant date; (3) the Company Stock Plan pursuant to which such Company Option was granted; (4) the number of shares of Company Common Stock underlying such Company Option; (5) the vesting schedule; (6) the strike price; (7) whether or not such grant of such Company Option is designated as an incentive stock option under Section 422 of the Code; and (8) the expiration date. The strike price of each Company are owned by Option was, on the date of grant of such Company Option, no less than the fair market value of a share of Company Common Stock as determined on the date of grant of such Company Option. All grants of Company Options were recorded on the Company, directly or indirectly, all such shares or equity ownership interests are set forth ’s financial statements (including any related notes thereto) contained in Schedule 4.2 of the Filed Company Disclosure LetterSEC Documents in accordance with GAAP, and all no such grants involved any “back dating,” “forward dating” or similar practices with respect to the effective date of such shares grant (whether intentionally or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightsotherwise).
Appears in 1 contract
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company ----------------- consists of (i) 8,000,000 20,000,000 shares of Company Common Stock and (ii) 75,000,000 1,000,000 shares of preferred stock, par value $0.001 1.00 per share (“" Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”"). At the close of business on November 6July 21, 2020 1997, (the “Measurement Date”): (Ai) 4,305,119 9,492,676 shares of Company Common Stock were issued and outstanding, (ii) no shares of Company Common Stock were held by the Company in its treasury, (iii) 1,055,660 shares of Company Common Stock were subject to issuance pursuant to outstanding options to purchase shares of Company Common Stock, (iv) 303,797 shares of Company Common Stock were reserved for issuance pursuant to the conversion of the Company's 5 1/2% Convertible Subordinated Debentures due March 1, 2012 (the "Convertible Debentures"), (v) 250,000 shares of Company Common Stock were reserved for issuance under the Company's 1996 Employee Stock Purchase Plan (the "Company ESPP") (stock options granted by the Company are referred to in this Agreement as "Company Options"), and (Bvi) no shares of Company Preferred Stock were issued or outstanding. Except as set forth above and except for Company Common Stock issued between July 21, 1997 and the date of this Agreement upon the exercise of options to purchase Company Common Stock, at the close of business on July 22, 1997, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding;
. All outstanding shares of capital stock of the Company are, and all shares which may be issued pursuant to Company Options will be, when issued in accordance with the terms thereof, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights. Except for the Convertible Debentures, there are no bonds, debentures, notes or other indebtedness of the Company outstanding having the right to vote (or convertible into securities having the right to vote) on any matters on which stockholders of the Company may vote. Except as set forth above and except for (a) Company Common Stock issued between July 21, 1997 and the date of this Agreement upon the exercise of options to purchase Company Common Stock and (b) "rights" to purchase Company Common Stock outstanding under the Company ESPP, as of the date of this Agreement, there are no securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which the Company is a party, or by which it is bound, obligating the Company to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other voting securities of the Company or obligating the Company to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to not any outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock contractual obligations of the Company to repurchase, redeem or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding otherwise acquire any shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2) no securities . As of the Company or any Subsidiary date of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stockthis Agreement, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company is a party or except as contemplated 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support this Agreement, there are not any no stockholder agreements, voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of capital stock or other equity interest of the Company or any of its SubsidiariesCompany. No Subsidiary All of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As outstanding capital stock of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are Company's subsidiaries is owned by the Company, directly or indirectly, all such free and clear of any Lien (as defined in Section 3.1(d)) or any other limitation or restriction (including any restriction on the right to vote or sell the same, except as may be provided as a matter of law), except for shares of capital stock or equity other similar ownership interests are set forth in Schedule 4.2 of certain subsidiaries of the Company Disclosure Letterthat may be owned by certain nominee equity holders as required by the applicable law of the jurisdiction of organization of such subsidiaries. There are no securities of the Company or its subsidiaries convertible into or exchangeable for, no options or other rights to acquire from the Company or its subsidiaries, and all of such shares no other contract, understanding, arrangement or equity obligation (whether or not contingent) providing for the issuance or sale, directly or indirectly, of, any capital stock or other ownership interests in, or any other equity securities of, any subsidiary of the Company. As of the date of this Agreement, there are duly authorized and validly issued and are fully paidno outstanding contractual obligations of the Company or its subsidiaries to repurchase, nonassessable and free redeem or otherwise acquire any outstanding shares of preemptive rightscapital stock or other ownership interests in any subsidiary of the Company.
Appears in 1 contract
Sources: Merger Agreement (Mandaric Milan)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company Neurotrope consists of (i) 8,000,000 150,000,000 shares of Company Common Stock and (ii) 75,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock” and, together with the Company Neurotrope Common Stock, the “Company Capital Stock”). At par value, $0.0001, of which 22,184,695 shares are issued and outstanding (which includes zero shares of restricted stock) as of the close of business on November 6, 2020 (the “Measurement Date”): (A) 4,305,119 day prior to the date hereof and 50,000,000 shares of Company Common Neurotrope Preferred Stock, par value $0.0001 per share, of which 2,957.50 shares are issued and outstanding as of the close of business on the day prior to the date hereof. No shares of capital stock are held in Neurotrope’s treasury. All outstanding shares of Neurotrope Capital Stock are duly authorized, validly issued, fully paid and non-assessable and were issued in compliance with all applicable federal and outstanding, and (B) no shares of Company Preferred Stock were issued and outstanding;state securities laws.
(b) As of the date of this Agreement, there are 58,775 Neurotrope had reserved an aggregate of 2,935,323 shares of Company Neurotrope Common Stock for issuance to employees, consultants and non-employee directors pursuant to the Neurotrope Stock Option Plans, under which options were outstanding for an aggregate of 2,326,573 shares. 21,731,258 shares of Neurotrope Common Stock were reserved for issuance to holders of warrants to purchase Neurotrope Common Stock upon their exercise. All shares of Neurotrope Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issuedissuance as aforesaid, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business upon issuance on the Measurement Date, except as set forth in this Section 4.2 terms and conditions specified in the Transaction Support Agreementinstruments pursuant to which they are issuable, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been would be duly authorized, validly issued, fully paid and nonassessablenon-assessable. Except as set forth in this Section 4.2Part 4.2(b) of the Neurotrope Disclosure Schedule lists each outstanding option to purchase shares of Neurotrope Capital Stock (a “Neurotrope Option”), and except for changes since the Measurement Date resulting from name of the holder thereof, the number of shares subject thereto, the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities of price thereof and the Company; (2) no securities of the Company or any Subsidiary of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stock, Voting Debt or other voting securities of the Company; vesting schedule and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stockpost-termination exercise period thereof.
(dc) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.[Reserved]
(ed) Except as set forth in Schedule 4.2 Part 4.2(d) of the Company Neurotrope Disclosure Letter, all Schedule and except for the right to participate in the Spin-Off: (i) none of the issued and outstanding shares of capital stock Neurotrope Capital Stock are entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Neurotrope Capital Stock are subject to any right of first refusal in favor of Neurotrope; (iii) there are no outstanding bonds, debentures, notes or other equity ownership interests of each Subsidiary indebtedness of the Company Neurotrope Companies having a right to vote on any matters on which the stockholders of Neurotrope have a right to vote; (iv) there is no Contract to which the Neurotrope Companies are owned by a party relating to the Companyvoting or registration of, directly or indirectlyrestricting any Person from purchasing, all such selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares or equity ownership interests are set forth in Schedule 4.2 of Neurotrope Capital Stock. None of the Company Disclosure LetterNeurotrope Companies is under any obligation, and all or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of such shares Neurotrope Capital Stock or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightsother securities.
Appears in 1 contract
Sources: Merger Agreement (Neurotrope, Inc.)
Capital Structure. (a) As of At the date of this Agreementhereof, the authorized capital stock of the Company consists of (i) 8,000,000 100,000,000 shares of Company Common Stock and (ii) 75,000,000 5,000,000 shares of preferred stock, par value $0.001 .01 per share (“"Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”"). At the close of business on November 6June 30, 2020 1999, (the “Measurement Date”): (Ai) 4,305,119 21,567,377 shares of Company Common Stock were issued and outstandingoutstanding (including 251,309 shares of Company Common Stock issued and held in escrow pursuant to the contingent share earnout arrangement (the "Points and Success Earnout") set forth in the Agreement and Plan of Reorganization, dated as of August 15, 1997, relating to the acquisition of The Success Companies, Success Developments, L.L.C. and Points of Colorado, Inc., Amendment No. 1 thereto and the related Escrow Agreement, which shares are not shown as outstanding in the Company SEC Documents), (Bii) no shares of Company Preferred Common Stock were issued held in the treasury of the Company or by its Subsidiaries, (iii) 2,000,628 shares of Company Common Stock were reserved for issuance pursuant to the Company Stock Plan and the Company Employee Stock Purchase Plan (collectively, the "Company Stock Plans"). Except as set forth above, at the close of business on June 30, 1999, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding;
(b) . All the outstanding shares of Company Common Stock are validly issued, fully paid and nonassessable and free of preemptive rights. As of the date of this Agreement, there are 58,775 except for stock options issued pursuant to the Company Stock Plans covering not in excess of 2,500,000 shares of Company Common Stock subject to outstanding (collectively, the "Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(iiOptions"), there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments securities or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it any of them is bound relating obligating the Company or any of its Subsidiaries to the voting of any issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock of the Company or any of its Subsidiaries or obligating the Company or any of its Subsidiaries to grant, extend or enter into any such option, warrant, call, right, security or agreement. Each outstanding share of capital stock of each Subsidiary of the Company that is a corporation is duly authorized, validly issued, fully paid and nonassessable and, except as disclosed in Section 3.2 of the letter dated the date hereof and delivered on the date hereof by the Company to Parent, which letter relates to this Agreement and is designated therein as the Company Letter (the "Company Letter"), or in the Company SEC Documents (as hereinafter defined) filed prior to the date of this Agreement, each such share is owned by the Company or another Subsidiary of the Company, free and clear of all Liens. As of the date of this Agreement, the Company does not have outstanding any bonds, debentures, notes or other equity interest indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which shareholders of the Company may vote. Except as disclosed in Section 3.2 of the Company Letter, as of the date of this Agreement, there are no outstanding contractual obligations of the Company or any of its Subsidiaries. No Subsidiary , or the Company Venture, to repurchase, redeem or otherwise acquire any shares of capital stock of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture orSubsidiaries, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Venture. Except as set forth in Schedule 4.2 Section 3.2 of the Company Disclosure Letter, Exhibit 21.1 to the Company's Annual Report on Form 10-K for the year ended December 31, 1998, as filed with the SEC (the "Company Annual Report"), is a true and correct statement in all material respects of all the information required to be set forth therein by the rules and regulations of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all SEC as of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightsdate.
Appears in 1 contract
Sources: Merger Agreement (Vistana Inc)
Capital Structure. (ai) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 35,000,000 shares of Company Common Stock and 2,000,000 shares of Preferred Stock, without par value (the “Preferred Stock”).
(ii) 75,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6December 17, 2020 (the “Measurement Date”): 2010, (A) 4,305,119 14,005,959 shares of Company Common Stock were issued and outstanding, and of which 597,580 shares were subject to vesting (the “Company Restricted Shares”), (B) no shares of Company Common Stock were held by the Company in its treasury, (C) no shares of Preferred Stock were issued or outstanding and outstanding;(D) 1,568,402 shares of Company Common Stock were reserved for issuance pursuant to the Company’s 1991 Stock Option Plan, 2000 Stock Option Plan, 2001 Stock Option Plan and 2004 Stock Incentive Plan (such plans, together with the Company’s 1993 Employee Stock Purchase Plan (the “Purchase Plan”), the “Company Stock Plans”), of which 723,165 shares of Company Common Stock were subject to outstanding options (other than purchase rights under the Purchase Plan) to acquire shares of Company Common Stock from the Company (the “Company Stock Options”).
(biii) As Since the close of business on December 17, 2010 until the date of this Agreement, (A) there are 58,775 have been no issuances by the Company of shares of capital stock or other voting securities or equity interests of the Company, other than issuances of shares of Company Common Stock subject pursuant to outstanding the exercise of Company Stock Awards Options and 12,182 shares of Company Common Stock subject to purchase rights under the Purchase Plan, in each case outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As as of the close of business on December 17, 2010, and (B) there have been no issuances by the Measurement DateCompany of securities convertible into, except as set forth in this Section 4.2 and in the Transaction Support Agreementor exchangeable or exercisable for, there are no outstanding or options, warrants or other rights to subscribe foracquire, or shares of deferred stock, restricted stock units, stock-based performance units, stock appreciation rights or “phantom” stock awards with respect to, any such stock, interests or securities, or derivative securities or other rights that are linked to the value of Company Common Stock or the value of the Company or any part thereof, other than purchase rights under the Purchase Plan.
(iv) All outstanding shares of capital stock of the Company are, and all shares which may be issued pursuant to the Company Stock Options or purchase rights under the Purchase Plan will be, when issued in accordance with the terms thereof, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights. Except as set forth above in this Section 4.1(c), as of the date hereof, (A) there are not issued, reserved for issuance or outstanding (1) any shares of capital stock or other voting securities or equity interests of the Company or any of its Subsidiaries, (2) 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 or any of its Subsidiaries, (3) any warrants, calls, options or other rights to acquire from the Company or any of its Subsidiaries any capital stock Subsidiaries, and no obligation of the Company or any of its Subsidiaries to issue, any capital stock, voting securities, equity interests or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company 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 its Subsidiaries or exchangeable or exercisable for (4) any shares of Company Capital Stockdeferred stock, Voting Debt restricted stock units, stock-based performance units, stock appreciation rights or other voting securities “phantom” stock awards with respect to any capital stock of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of its Subsidiaries, or derivative securities or other rights that are linked to the value of the Company is a party Common Stock or by which it is bound in the value of the Company, any case obligating of its Subsidiaries or any part thereof and (B) there are not any outstanding obligations of the Company or any Subsidiary of the Company its Subsidiaries to repurchase, redeem or otherwise acquire any such securities or to issue, deliver, deliver or sell, purchase, redeem or acquire, or cause to be issued, delivered, delivered or sold, purchased, redeemed any such securities (except pursuant to the forfeiture of Company Stock Options or acquired, additional Company Restricted Shares or the acquisition by the Company of shares of Company Capital Common Stock in settlement of the exercise price of a Company Stock Option or any Voting Debt the Tax withholding obligations of holders of Company Stock Options or Company Restricted Shares, in each case in accordance with their terms as in effect on the date of this Agreement).
(v) There are no outstanding bonds, debentures, notes, indentures, indebtedness or other obligations of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matter which the holders of shares of Company Common Stock are entitled to vote. There are no stockholder agreements, registration agreements, voting securities trusts, voting agreements or other agreements or understandings to which the Company, any of its Subsidiaries or, to the Knowledge of the Company, any third party is a party with respect to the voting or obligating registration of the capital stock or other equity interest of the Company or any Subsidiary of the Company to grant, extend its Subsidiaries or enter into any such option, warrant, subscription, call, right, commitment preemptive rights with respect thereto. There is no rights plan or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements similar agreement to which the Company or any of its Subsidiaries is a party or by which it is or they are bound relating with respect to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of All dividends and distributions on the Company owns any shares of Company Common Stock that have been authorized or any other shares of Company Capital Stock.
(d) As of declared prior to the date of this Agreement, neither hereof have been paid in full (except to the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all extent such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued dividends have been publicly announced and are fully paid, nonassessable not yet due and free of preemptive rightspayable).
Appears in 1 contract
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 12,500,000 shares of Company Common Stock Stock, par value $0.01 per share and (ii) 75,000,000 500,000 shares of preferred stock, par value $0.001 1 per share (the “Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6May 14, 2020 2024 (the “Measurement Date”): ), (Ai) 4,305,119 3,322,527 shares of Company Common Stock were issued and 2,169,546 shares of Company Common Stock were outstanding, (ii) 1,178,815 shares of Company Common Stock were held by the Company in its treasury, (iii) no shares of Company Common Stock were subject to outstanding Company Stock Options, (iv) 69,167 shares of Company Common Stock are subject to outstanding Company Stock Awards that are unvested as of the date hereof, (v) 200,000 shares of Company Common Stock were reserved for issuance pursuant to the Company Stock Plan of which 22,500 shares were available for future grants thereunder, and (Bvi) no shares of Company Preferred Stock were issued and or outstanding;
(b) As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements Except as set forth in applicable Contracts. As of above, at the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any shares of its Subsidiaries any capital stock of the Company were issued, reserved for issuance or securities convertible into or exchangeable or exercisable for capital stock outstanding. Except as set forth on Section 4.02(a) of the Company (and Disclosure Letter, as of the exerciseMeasurement Date, conversionno shares of Company Common Stock are subject to vesting or any right of repurchase by the Company. Except as set forth on Section 4.02(a) of the Company Disclosure Letter, purchasefrom the Measurement Date through the Agreement Date, exchange or other similar price thereof). All outstanding there have been no issuances by the Company of shares of capital stock or other voting securities or equity interests of the Subsidiaries Company or options, warrants, convertible, exchangeable or exercisable securities, stock-based performance units or other rights to acquire shares of capital stock or other voting securities or equity interests of the Company are owned by or other rights that give the Company, holder thereof any economic or voting interest of a direct or indirect wholly owned Subsidiary nature accruing to the holders of the Company, are free and clear of all EncumbrancesCompany Common Stock, other than Permitted Encumbrancesissuances of Company Common Stock resulting from vesting of Company Stock Awards outstanding as of the Measurement Date, in accordance with their terms. No shares of Company Common Stock are held by any Company Subsidiary.
(b) All outstanding shares of Company Common Stock are, and have been all such shares that may be issued prior to the Effective Time will be when issued, duly authorized, validly issued, fully paid and nonassessable. Except nonassessable and not subject to preemptive rights.
(c) As of the Agreement Date, there are no bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of Company Common Stock may vote by virtue of their ownership thereof (“Voting Company Debt”).
(d) Other than as set forth in this Section 4.24.02(d) of the Company Disclosure Letter, and except for changes since as of the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii)Agreement Date, there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptionspurchase, subscription, anti-dilutive, conversion or exchange rights, calls, puts, convertible, exchangeable or exercisable securities, shares of capital stock, restricted stock or other equity interests or voting securities, stock-based performance units or other rights (including preemptive and appreciation rights), commitments or agreements Contracts to which the Company or any Subsidiary of the Company is a party or by which it the Company is bound in any case (i) obligating the Company or any Subsidiary of the Company to issue, delivergrant, deliver or sell, purchase, redeem or acquire, or cause to be issued, deliveredgranted, delivered or sold, purchased, redeemed or acquired, additional shares of Company Capital Stock or any Voting Debt capital stock of, or other voting securities of the Companyor equity interests in, or obligating any security convertible, exchangeable or exercisable for any shares of capital stock of, or other voting securities or equity interests in, the Company or any Subsidiary of Voting Company Debt, (ii) obligating the Company to grantissue, extend grant or enter into any such option, warrant, subscriptionsecurity, callunit, rightright or Contract, commitment (iii) that give any Person the right to receive any economic or agreement. Other than voting interest of a nature accruing to the Transaction Support Agreementholders of Company Common Stock or (iv) restricting the transfer of, containing any right of first refusal or right of first offer with respect to, or requiring the registration for sale of any shares of, capital stock of the Company.
(e) As of the Agreement Date, there are not any stockholder agreements, voting trusts or other agreements to which no outstanding contractual obligations of the Company to repurchase, redeem or any of its Subsidiaries is a party or by which it is bound relating to the voting of otherwise acquire any shares of capital stock or other equity interest of the Company or any options, warrants, purchase, subscription, anti-dilutive, conversion or exchange rights, calls, puts, convertible, exchangeable or exercisable securities, shares of its Subsidiaries. No Subsidiary capital stock, restricted stock or other equity interests or voting securities, stock-based performance units or other rights to acquire shares of capital stock of the Company owns any Company, except for (i) the withholding of shares of Company Common Stock or any other to satisfy tax obligations with respect to awards granted pursuant to the Company Stock Plans and (ii) the acquisition by the Company of Company Common Stock granted in restricted stock awards pursuant to the Company Stock Plan, in connection with the forfeiture of such awards.
(f) All Company Stock Awards are evidenced by written award agreements, in each case, substantially in the forms that have been made available to Parent, except to the extent that such agreements differ from such forms and from one another with respect to the number of shares of Company Capital StockCommon Stock covered thereby, the vesting schedule, vesting terms and any expiration date applicable thereto.
(dg) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (iSection 4.02(g) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
Letter sets forth a true and complete listing of all outstanding Company Stock Awards as of the Measurement Date, indicating for each such Company Stock Award: (ei) Except the name of the holder thereof, (ii) the date of grant, (iii) the number of vested and unvested shares of Company Common Stock subject thereto and (iv) the vesting schedules (as set forth applicable). Each Company Stock Award (A) was issued in Schedule 4.2 accordance with the terms of the Company Disclosure Letter, Stock Plan under which it was granted and all applicable Laws and (B) is not subject to Section 409A of the Code. The Company has made available to Parent complete and accurate copies of all Company Stock Plans pursuant to which Company Stock Awards have been issued and outstanding shares forms of capital stock or other equity ownership interests of each Subsidiary of the award agreement evidencing Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightsStock Awards.
Appears in 1 contract
Sources: Merger Agreement (TSR Inc)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 200,000,000 shares of Company Common Stock and (ii) 75,000,000 10,000,000 shares of preferred stock, par value $0.001 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 November 6May 25, 2020 2006 (the “Measurement Capitalization Date”): ), (Ai) 4,305,119 70,659,645 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, (ii) no shares of Company Common Stock were held by the Company in its treasury, (iii) 4,935,273 shares of Company Common Stock were reserved for issuance pursuant to outstanding options to purchase Company Common Stock (the “Company Stock Options”) granted under the Company’s Amended and Restated 1996 Stock Incentive Plan and the 2006 Stock Incentive Plan (collectively, the “Company Stock Incentive Plans”), (iv) 1,880,693 shares of Company Common Stock were reserved for issuance in accordance with the Company’s Amended and Restated Employee Stock Purchase Plan (the “Company Stock Purchase Plan” and, together with the Company Stock Incentive Plans, the “Company Stock Plans”), (v) 290,715.6601 units representing shares of Company Common Stock were credited to participant accounts under the Deferred Compensation Plan prior to the date of this Agreement and (Bvi) no shares of Company Preferred Stock were issued and outstanding;
(b) . As of the date of this Agreement, there except as set forth above, no shares of capital stock of the Company or options, warrants, convertible or exchangeable securities or other rights to purchase capital stock of the Company are 58,775 shares issued, reserved for issuance or outstanding (other than Shares to be issued upon exercise of Company Stock Options in accordance with their terms). Item 4.3 of the Company Letter contains a true and complete list of all Company Stock Options outstanding as of the Capitalization Date, which schedule shows the applicable exercise prices. The Founders do not hold any Company Stock Options. Pursuant to the terms of the Benefit Plans, all options will accelerate at the Effective Time. Since the Capitalization Date and through the date of this Agreement, other than in connection with the issuance of Company Common Stock subject pursuant to the exercise of Company Stock Options outstanding as of the Capitalization Date, there has been no change in the number of shares of outstanding capital stock of the Company or the number of outstanding Company Stock Awards Options. Since January 1, 2003, all of the outstanding equity securities of the Company have been offered and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of issued in material compliance with all applicable securities laws, including the Securities Act and “blue sky” laws. No dividends on the Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject declared or have accrued. Except for share units credited under the Deferred Compensation Plan prior to preemptive rights. All outstanding shares the date of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding optionsstock appreciation rights, warrants equity equivalents or other rights phantom stock with respect to subscribe for, purchase or acquire from the capital stock of the Company or any of its Subsidiaries any capital stock Subsidiaries. Each Share that may be issued pursuant to the Company Stock Plans, when issued upon the receipt of the Company or securities convertible into or exchangeable or exercisable for capital stock of consideration set forth in the Company (Stock Plans and the exerciserelated agreements, conversionif applicable, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been will be duly authorized, validly issued, fully paid and nonassessablenonassessable and not subject to preemptive rights. Except as set forth in this Section 4.2There are no outstanding bonds, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such datedebentures, or stock grants notes or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2) no securities Indebtedness of the Company or any Subsidiary of its Subsidiaries having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matter on which the Company’s stockholders or any Subsidiary’s equityholders may vote. As of the date of this Agreement, except with respect to Company convertible into Stock Options outstanding on the date hereof or exchangeable or exercisable for units representing shares of Company Capital StockCommon Stock credited to participant accounts pursuant to the Deferred Compensation Plan or the Company Stock Purchase Plan, Voting Debt or other voting securities of the Company; and (3) there are no securities, options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company is a party or by which it is bound in any case obligating the Company or any Subsidiary of the Company to issuecommitments, 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts arrangements or other agreements undertakings of any kind to which the Company or any of its Subsidiaries is a party or by which it any of them is bound relating obligating the Company or any of its Subsidiaries to the voting of any issue, deliver or sell or create, or cause to be issued, delivered or sold or created, additional shares of capital stock or other voting or equity interest securities or interests of the Company or of any of its Subsidiaries or obligating the Company or any of its Subsidiaries to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking or relating to the voting of capital stock or equity securities or interests of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither other than pursuant to this Agreement, there are no outstanding contractual obligations or rights of the Company nor or any of its Subsidiaries has to register or repurchase, redeem or otherwise acquire, vote, dispose of or otherwise transfer, register pursuant to any (i) interests in a material joint venture orsecurities laws, directly or indirectly, equity securities declare dividends or make other similar equity interests in distributions on any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 any of its Subsidiaries. None of the Company Disclosure Letteror any of its Subsidiaries is a party to any stockholder agreement, and all voting trust, proxy or other agreement, instrument or undertaking with respect to the capital stock of such shares the Company or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free any of preemptive rightsits Significant Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (West Corp)
Capital Structure. (ai) As of the date of this Agreement, the The authorized capital stock of the Company consists of (iA) 8,000,000 shares of Company Common Stock 3,950,000,000 Shares and (iiB) 75,000,000 50,000,000 shares of preferred stock, par value $0.001 0.01 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Preferred Stock”). At As of the close of business on November 6May 16, 2020 (the “Measurement Date”): (A) 4,305,119 2014, 502,224,444 shares of Company the Common Stock were issued and outstanding, outstanding and (B) no other shares of Company the Common Stock or shares of the Preferred Stock were issued and outstanding;
(b) As outstanding on such date. All of the outstanding Shares have been duly authorized and validly issued and are fully paid and nonassessable. The Company has no Shares, shares of Preferred Stock or other shares of capital stock reserved for or subject to issuance, except that, as of the date of this Agreement, there are 58,775 shares an aggregate of 48,529,270 Shares reserved for issuance pursuant to the Company Common Plans identified in Section 5.1(b)(i)(A) of the Company Disclosure Letter as being the only Company Plans pursuant to which Shares may be issued (the “Company Stock subject to Plans”). Section 5.1(b)(i)(B) of the Company Disclosure Letter contains a correct and complete list as of May 16, 2014 of the outstanding Company Options, Company SARs, Company Restricted Stock Units, Company Performance Stock Units and Company Awards under the Company Stock Plans, including the holder, date of grant, term, number of Shares and, where applicable, exercise price or reference price and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awardsvesting schedule.
(cii) All outstanding shares From May 16, 2014 to the execution of this Agreement, the Company has not issued any Shares except pursuant to the exercise of Company Common Options, Company SARs, Company Restricted Stock have been Units, Company Performance Stock Units and Company Awards outstanding on May 16, 2014 in accordance with their terms and, since May 16, 2014, except as permitted by this Agreement, the Company has not issued any Company Options, Company SARs, Company Restricted Stock Units, Company Performance Stock Units and Company Awards. Upon any issuance of any Shares in accordance with the terms of the Company Stock Plans, such Shares will be duly authorized authorized, validly issued and are validly issued, fully paid and non-assessable nonassessable and are not subject to preemptive rightsfree and clear of any lien, charge, pledge, security interest, claim or other encumbrance (each, a “Lien”). All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As Each of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests securities of each of the Company’s Subsidiaries of the Company are has been duly authorized and validly issued and is fully paid and nonassessable and owned by the Company, Company or by a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessableany Lien. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants There are no preemptive or other awards granted in accordance with Section 6.1(b)(ii)outstanding rights, there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptionsconversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or rights of any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which kind that obligate the Company or any of its Subsidiaries is a party to issue or by which it is bound relating to the voting of sell any shares of capital stock or other equity interest securities 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 securities of the Company or any of its Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued or outstanding. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter.
(iii) Section 5.1(b)(iii) of the Company Disclosure Letter sets forth (A) each of the Company’s Subsidiaries and the ownership interest of the Company in each such Subsidiary, as well as the ownership interest of any other Person or Persons in each such Subsidiary and (B) the Company’s or its Subsidiaries’ capital stock, equity interest or other direct or indirect ownership interest in any other Person other than (x) publicly traded non-equity securities held for investment which do not exceed 5% of the outstanding non-equity securities of any Person and (y) securities held by any employee benefit plan of the Company or any of its Subsidiaries or any trustee, agent or other fiduciary in such capacity under any such employee benefit plan. No Subsidiary of the Company owns any shares of Shares. The Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture ordoes not own, directly or indirectly, equity securities or other similar equity interests any voting interest in any Person or that requires an additional filing by Parent under the H▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (iithe “HSR Act”).
(iv) obligations, whether contingent or otherwise, to consummate any Each Company Option and Company SAR (A) was granted in compliance in all material additional investment in any Person other than its Subsidiaries respects with all applicable Laws and its joint ventures listed on Schedule 4.2 all of the terms and conditions of the Company Disclosure Letter.
Stock Plans pursuant to which it was issued, (eB) Except as set forth in Schedule 4.2 has an exercise price or reference price per share of the Company Disclosure LetterCommon Stock, all as applicable, equal to or greater than the fair market value of a share of the issued and outstanding shares Common Stock on the date of capital stock such grant, (C) has a grant date identical to the date on which the Company’s Board of Directors or other equity ownership interests of each Subsidiary of the Compensation Committee actually awarded such Company are owned Option or on the date thereafter as specified by the Company, directly ’s Board of Directors or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 the Compensation Committee of the Company’s Board in their respective authorization of such Company Disclosure LetterOptions, (D) qualifies in all material respects for the Tax and accounting treatment afforded to such Company Option or Company SAR in the Company’s Tax Returns and the Company Reports, respectively, and (E) complies in all material respects with Section 409A of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightsthe Code.
Appears in 1 contract
Sources: Merger Agreement (Directv)
Capital Structure. (a) As of the date of this Agreementhereof, the authorized capital stock of the Company consists of (i) 8,000,000 360,000,000 shares of Company Common Stock and (ii) 75,000,000 20,000,000 shares of preferred stock, par value $0.001 .01 per share (“"Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”"). At the close of business on November 6May 28, 2020 1998, (the “Measurement Date”): (Ai) 4,305,119 101,628,989 shares of Company Common Stock were issued and outstanding, all of which were validly issued, fully paid and nonassessable and free of preemptive rights, (Bii) no shares of Company Common Stock were held in the treasury of the Company or by Subsidiaries of the Company and (iii) 9,239,457 shares of Company Common Stock were reserved for issuance pursuant to outstanding options (the "Company Stock Options") to purchase shares of Company Common Stock issued pursuant to the Company's Amended and Restated 1994 Stock Option Plan and 1996 Outside Directors Stock Option Plan (collectively, the "Company Stock Option Plans"). There are no shares issuable pursuant to the Company's Employee Stock Purchase Plan (the "Company Stock Purchase Plan"). The Company Stock Option Plans and the Company Stock Purchase Plan are the only benefit plans of the Company or its Subsidiaries under which any securities of the Company or any of its Subsidiaries are issuable. No shares of Company Preferred Stock were are issued and or outstanding;
(b) . As of the date of this Agreement, there are 58,775 except as set forth above and except for the issuance of shares of Company Common Stock subject to outstanding upon the exercise of Company Stock Awards and 12,182 shares of Company Common Stock subject to Options outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issuedon May 28, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted 1998 in compliance in all material respects accordance with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Dateterms thereof, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2) no securities Company were issued, reserved for issuance or outstanding. As of the Company or any Subsidiary date of this Agreement, except for (i) as set forth above, (ii) the Stock Option Agreement and (iii) rights to purchase one-one-thousandth of a share of Series A Junior Participating Preferred Stock (the "Rights") pursuant to a Rights Agreement dated as of December 29, 1997 (the "Rights Agreement") between the Company convertible into or exchangeable or exercisable for shares of Company Capital Stockand BankBoston, Voting Debt or other voting securities of the Company; and (3) N.A., as Rights Agent, there are no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments puts or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it any of them is bound relating obligating the Company or any of its Subsidiaries to the voting of issue, deliver, sell or redeem, or cause to be issued, delivered, sold or redeemed, any additional shares of capital stock (or other voting securities or equity interest equivalents) of the Company or any of its Subsidiaries. No Subsidiaries or obligating the Company or any of its Subsidiaries to grant, extend or enter into any such option, warrant, call, right, put or agreement.
(b) Each outstanding share of capital stock (or other voting security or equity equivalent) of each material Subsidiary of the Company owns is duly authorized, validly issued, fully paid and nonassessable, and each such share (or other voting security or equity equivalent) is 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 shares nature whatsoever. The Company does not have any outstanding bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company Common Stock or on any other shares matter. Exhibit 21 to the Company's Annual Report on Form 10-K for the year ended October 31, 1997, as filed with the SEC (the "Company Annual Report"), is a true, accurate and correct statement in all material respects of Company Capital Stockall of the information required to be set forth therein by the regulations of the SEC.
(dc) As Section 3.2 of the letter dated the date of this Agreement, neither hereof and delivered on the date hereof by the Company nor any to Parent, which letter relates to this Agreement and is designated the Company Letter (the "Company Letter"), sets forth a list of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its all Subsidiaries and its joint ventures listed on Schedule 4.2 Joint Ventures of the Company Disclosure Letter.
(e) Except as set forth and the jurisdiction in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each which such Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.or
Appears in 1 contract
Sources: Merger Agreement (Tellabs Inc)
Capital Structure. (ai) As of the date of this AgreementMarch 26, 2001, the authorized capital stock of the Company consists consisted of (iA) 8,000,000 200,000,000 shares of Company Common Stock Stock, of which 56,124,714.6660 shares were issued and outstanding and no shares were held in treasury and (iiB) 75,000,000 10,000,000 shares of preferred stock, par value $0.001 .01 per share (“Company share, of which 300,000 shares of Series A Junior Participating Preferred Stock” and, together with Stock have been designated and reserved for issuance upon exercise of the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6, 2020 rights (the “Measurement Date”): (A"RIGHTS") 4,305,119 shares distributed to the holders of Company Common Stock were issued pursuant to the Rights Agreement, dated as of April 7, 1999, between the Company and outstandingWells Fargo Bank Minnesota, and N.A., as successor rights agent (B) no shares of Company Preferred Stock were issued and outstanding;
(b) As of ▇▇ amended, the "RIGHTS AGREEMENT"). Since March 26, 2001 to the date of this Agreement, there are 58,775 have been no issuances or deliveries by the Company of shares of its capital stock or any other securities of the Company except deliveries by the Company of Company Common Stock (and the associated Rights) related to open market purchases by the Company of shares of Company Common Stock subject pursuant to outstanding Company the Company's Dividend Reinvestment Plan and the 1997 Employee Stock Awards Purchase Plan. All issued and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise no class of capital stock options is entitled to preemptive rights. There are no outstanding at such datestock appreciation, phantom stock or stock grants or other awards granted in accordance similar rights with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2) no securities of respect to the Company or any Subsidiary of its Subsidiaries.
(ii) As of the date of this Agreement, no bonds, debentures, notes or other indebtedness of the Company convertible into having the right to vote on any matters on which stockholders may vote ("COMPANY VOTING DEBT") are issued or exchangeable or exercisable outstanding.
(iii) Except (A) for the acquisition by stockholders of the Company of shares of Company Capital Stock, Voting Debt or other voting securities Common Stock pursuant to the Company's Dividend Reinvestment Plan (all of which shares shall be acquired after the date hereof by the Company for delivery to the applicable stockholders of the Company; Company solely through open market purchases), (B) for Options and other rights representing in the aggregate the right to purchase 3,973,618 shares of Company Common Stock under (1) the 1995 Stock Option and Incentive Plan, as amended, of the Company (the "1995 STOCK OPTION PLAN") and (32) the 1997 Employee Stock Purchase Plan, (C) for the Rights, (D) for warrants to acquire (1) 1,476,908 shares of Company Common Stock issued on March 13, 1998 and (2) 2,000,000 shares of Company Common Stock issued on December 14, 1999 (collectively, the "WARRANTS") and (E) for the acquisition by the Company of shares of Company Common Stock pursuant to the Company's 401(k) Plan (all of which shares shall be acquired after the date hereof by the Company solely through open market purchases), as of the date of this Agreement, there are no securities, options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company is a party or by which it is bound in any case obligating the Company or any Subsidiary of the Company to issuecommitments, 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts arrangements or other agreements undertakings of any kind to which the Company or any of its Subsidiaries is a party or by which it any of them is bound relating obligating the Company or any of its Subsidiaries to the voting of any issue, deliver, sell, repurchase, redeem or otherwise acquire or cause to be issued, delivered, sold, repurchased, redeemed or acquired, shares of capital stock or other equity interest voting securities of the Company or any of its Subsidiaries. No Subsidiary of Subsidiaries or obligating the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has to issue, grant, extend or enter into any (i) interests in a material joint venture orsuch security, directly option, warrant, call, right, commitment, agreement, arrangement or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letterundertaking.
(eiv) Except as set forth in Schedule 4.2 of All the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company have been validly issued and are fully paid and nonassessable and are owned (of record and beneficially) by the CompanyCompany and/or one or more of its wholly owned Subsidiaries, free and clear of all pledges, claims, liens, charges, encumbrances and security interests of any kind or nature whatsoever (collectively, "LIENS"). Except (A) for the capital stock or other ownership interests of its Subsidiaries, (B) as acquired in the ordinary course of business pursuant to foreclosure, workout, settlement or similar transactions, and (C) for security interests held in the ordinary course of business, the Company does not own, directly or indirectly, all such shares any capital stock or equity other ownership interests are set forth interest in Schedule 4.2 any Person that is material to the business of the Company Disclosure Letterand its Subsidiaries, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightstaken as a whole.
Appears in 1 contract
Sources: Merger Agreement (Franchise Finance Corp of America)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 60,000,000 shares of Company Common Stock and (ii) 75,000,000 10,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At Of the close 10,000,000 shares of business on November 6Company Preferred Stock that are authorized for issuance, 2020 1,000,000 shares have been designated as Series A Junior Participating Preferred Stock and have been reserved for issuance under the Company’s Rights Agreement, dated as of October 17, 2002, between the Company and Mellon Investor Services LLC, as amended (the “Measurement DateRights Agreement”): ). As of the date hereof, (Ai) 4,305,119 15,945,210 shares of Company Common Stock were are issued and outstandingoutstanding (none of which are subject to repurchase options in favor of the Company by reason of having been originally issued as restricted shares), (ii) 220,612 shares of Company Common Stock are issued and held by the Company in its treasury and (Biii) no shares of Company Preferred Stock were 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 September 2, 2004, 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 outstanding under the Stock Plans prior to such date.
(b) As of the date of this Agreement, there are 58,775 Agreement and regarding options to purchase shares of Company Common Stock subject to outstanding (each an “Option”) under the Company’s 1993 Stock Option/Stock Issuance Plan (the “1993 Plan”) or Special Non-Officer Stock Option Plan (the “1997 Plan” and collectively with the 1993 Plan, the “Stock Plans”):
(i) The Company Stock Awards and 12,182 has reserved 6,200,000 shares of Company Common Stock for issuance to employees, consultants and directors pursuant to the 1993 Plan, of which (i) 1,155,339 vested shares have been issued pursuant to option exercises, (ii) 2,752,283 shares are subject to outstanding Company RSU Awards.outstanding, unexercised options, and (iii) 900,171 shares remain available for issuance thereunder;
(cii) All outstanding The Company has reserved 675,000 shares of Company Common Stock have been duly authorized and are validly issued, fully paid for issuance to non-officer and non-assessable and director employees pursuant to the Company’s 1997 Plan, of which (i) 61,348 vested shares have been issued pursuant to option exercises, (ii) 339,722 shares are not subject to preemptive rights. All outstanding, unexercised options, and (iii) 273,930 shares remain available for issuance thereunder; and
(iii) There are outstanding Share Rights Awards for the issuance of 339,897 shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As Stock, which such number of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from shares the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable has reserved for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stockissuance thereunder.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 1 contract
Sources: Merger Agreement (QRS Corp)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 30,000,000 shares of Company Common Stock and (ii) 75,000,000 5,000,000 shares of preferred stock, with no par value $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 November 6June 24, 2020 2008, (the “Measurement Date”): (Ai) 4,305,119 17,813,875 shares of Company Common Stock were issued and outstanding, of which none were subject to vesting or restrictions on transfer, (ii) 1,119,690 shares of Company Common Stock were reserved and available for issuance pursuant to Company Stock Plans (as defined in Section 6.05(d)) and (Biii) no shares of Company Preferred Stock were outstanding. Except as set forth above, as of the date of this Agreement, no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding. There are no outstanding Company SARs (as defined in Section 6.05(d)). Section 3.03 of the Company Disclosure Letter sets forth a complete and accurate list, as of June 24, 2008, of all outstanding Company Stock Options (as defined in Section 6.05(d)) and Company RSUs (as defined in Section 6.05(d)), the number of shares of Company Common Stock subject thereto, the exercise prices (if applicable) and vesting schedules thereof and whether any of the foregoing are subject to terms that provide for acceleration of vesting upon the consummation of the Merger. All Company Stock Options and Company RSUs are evidenced by stock option agreements or restricted stock unit agreements, in each case substantially identical to the forms set forth in Section 3.03 of the Company Disclosure Letter, and no stock option agreement or restricted stock unit agreement contains terms that are inconsistent with, or in addition to, the terms contained in such forms. With respect to the Company Stock Options, (i) each Company Stock Option that was intended to qualify as an “incentive stock option” under Section 422 of the Code so qualifies, (ii) each grant of a Company Stock Option was duly authorized no later than the date on which the grant of such Company Stock Option was by its terms to be effective (the “Grant Date”) by all necessary corporate action, including, as applicable, approval by the Company Board (or a duly constituted and authorized committee thereof) and any required shareholder approval by the necessary number of votes or written consents, and the award agreement governing such grant (if any) was duly executed and delivered by each party whose signature was necessary to make such agreement legally binding, (iii) each such grant was made in accordance with the terms of the Company Stock Plans and all other applicable Laws and regulatory rules or requirements and (iv) the per share exercise price of each Company Stock Option was equal to the fair market value of a share of Company Common Stock on the applicable Grant Date. The maximum number of shares of Company Common Stock that could be purchased with accumulated payroll deductions under the ESPP (as defined in Section 6.05(d)) at the close of business on November 18, 2008 (assuming the fair market value of a share of Company Common Stock on such date is equal to $15.60 and payroll deductions continue at the current rate) is 70,000. Each Company Stock Option and Company RSU may be treated in accordance with Section 6.05 without the consent of the holder of such Company Stock Option or Company RSU. No holder of any Company Stock Option or Company RSU is entitled to any treatment of such Company Stock Option or Company RSU other than as provided in Section 6.05, and after the Effective Time no holder of a Company Stock Option or Company RSU (or former holder of a Company Stock Option or Company RSU) or any Company Participant (as defined in Section 3.08(iv)) in the Company Stock Plans or any Company Benefit Plan (as defined in Section 3.10) or Company Benefit Agreement (as defined in Section 3.08(iv)) shall have the right thereunder to acquire any capital stock of the Company or any other equity interest therein (including “phantom” stock or stock appreciation rights). All outstanding shares of Company Common 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 outstanding;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 CGCL, the Company Charter, the Company By-laws or any Contract (as defined in Section 3.05(a)) to which the Company is a party or otherwise bound.
(b) As There are not any bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of Company Common Stock may vote (“Voting Company Debt”). Except as set forth above, as of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding any options, warrants warrants, rights, convertible or other rights exchangeable securities, “phantom” stock rights, stock appreciation rights, stock-based performance units, commitments, Contracts, arrangements or undertakings of any kind to subscribe for, purchase or acquire from which the Company or any Company Subsidiary is a party or by which any of its Subsidiaries any capital stock of them is bound (i) obligating the Company or securities convertible into any Company Subsidiary to issue, deliver or exchangeable sell, or exercisable for capital stock of the Company (and the exercisecause to be issued, conversiondelivered or sold, purchase, exchange or other similar price thereof). All outstanding additional shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Companyin, or a direct any security convertible or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except exercisable for changes since the Measurement Date resulting from the exercise of or exchangeable into any capital stock options outstanding at such dateof, or stock grants or other awards granted in accordance with Section 6.1(b)(ii)equity interest in, there are outstanding: (1) no shares of Company 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 Company Capital StockSubsidiary, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Voting Company is a party or by which it is bound in any case Debt, (ii) obligating the Company or any Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment security, commitment, Contract, arrangement or agreement. Other than undertaking or (iii) that give any person the Transaction Support Agreement, there are not right to receive any stockholder agreements, voting trusts economic benefit or other agreements right similar to which or derived from the Company or any of its Subsidiaries is a party or by which it is bound relating economic benefits and rights occurring to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares holders of Company Common Stock or any other shares of Company Capital Stock.
(d) . As of the date of this Agreement, neither the Company nor (A) there are not any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 outstanding contractual obligations of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the or any Company Disclosure LetterSubsidiary to repurchase, all of the issued and outstanding redeem or otherwise acquire any shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned or any Company Subsidiary and (B) no dividends or other distributions have been declared and not paid by the Company, directly or indirectly, all such Company on any shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightsCommon Stock.
Appears in 1 contract
Capital Structure. (a) As of the date of this Agreement, the authorized capital stock of the Company consists of (i) 8,000,000 1,000,000,000 voting shares of Company Common Stock and (ii) 75,000,000 1,000,000,000 non-voting shares of preferred stock, par value $0.001 per share (“Company Preferred Stock” and, together with the Company Common StockStock (collectively, the “Company Capital Stock”). At the close of business on November 6March 2, 2020 (the “Measurement Date”): 2025: (A) 4,305,119 177,700,000 voting shares of Company Common Stock were issued and outstanding, ; and (B) no 87,000,000 non-voting shares of Company Preferred Common Stock were issued and outstanding;. The Company acknowledges and agrees that, as of immediately prior to the Effective Time, the Company shall have a market capitalization of not less than $100,000,000 (calculated on a fully-diluted basis).
(b) As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with with
(i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contractscontracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreementdate hereof, there are no outstanding restricted stock, restricted stock units, phantom units or other equity-related awards, options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof)Company. All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are validly issued, fully paid and non-assessable, are owned by the Company, Company or by a direct or indirect wholly owned Subsidiary of the Company, Company and are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since As of the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii)date hereof, there are outstanding: (1A) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2B) no securities of the Company or any Subsidiary of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stock, Voting Debt or other voting securities of the Company; Stock and (3C) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than any voting agreement (each, a “Company Voting Agreement”), pursuant to which, among other things, applicable holders have agreed to vote their shares of Company Common Stock in favor of the Transaction Support Agreementapproval and adoption of this Agreement and the transactions contemplated hereby, including the Merger, if any, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 1 contract
Sources: Business Combination Agreement
Capital Structure. (ai) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 100,000,000 shares of Company Common Stock and (ii) 75,000,000 100,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock” and. As of the Agreement Date hereof, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6, 2020 (the “Measurement Date”): (A) 4,305,119 2,238,630 shares of Company Common Stock were issued and outstanding, which includes 14,412 shares of Company Restricted Stock, 197,850 shares of Company Common Stock were reserved for issuance upon exercise of outstanding stock options issued under the Company Incentive Plan, and 34,500 Deferred Shares which are not vested under the Company Stock Incentive Plan, and an estimated 175,280 shares of Company Common Stock reserved for issuance upon conversion of the Company Convertible Debt, and (B) no shares of Company Preferred Stock were issued and outstanding;
(b) As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) . All outstanding shares of Company Common Stock have been duly authorized and validly issued and are validly issued, fully paid and non-assessable and are the issuance of such shares was not subject to any preemptive or similar rights. All outstanding Except for the Company Support Agreements, there are no voting trusts, shareholder agreements, proxies or other agreements in effect with respect to the voting or transfer of Company Common Stock or other equity interests of Company. Disclosure Schedule 4.2(b)(i) sets forth a true, correct and complete list of the aggregate number of shares of Company Common Stock have been issued issuable upon the exercise of each Company Stock Option outstanding at the date of this Agreement, and granted in compliance in all material respects with (i) applicable securities Laws the holder, exercise price and other applicable Law and vesting schedule, as applicable, for each Company Stock Option.
(ii) all requirements set Set forth in applicable ContractsDisclosure Schedule 4.2(b)(ii) is a true, correct and complete list of all outstanding bonds, debentures, notes, trust preferred securities or other similar obligations that Company has issued. As of the close of business on the Measurement Date, except Except as set forth in this Section 4.2 and in the Transaction Support AgreementDisclosure Schedule 4.2(b)(ii), there are no Voting Debt of Company is issued or outstanding. All outstanding optionsbonds, warrants debentures, notes, trust preferred securities or other rights to subscribe for, purchase or acquire from the similar obligations of Company or any of its Subsidiaries any capital stock of were issued in compliance with all Applicable Legal Requirements.
(iii) Except for (A) this Agreement, (B) the Company or securities convertible into or exchangeable or exercisable for capital stock of Stock Options and Company Restricted Stock, (C) the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted EncumbrancesConvertible Debt, and have been duly authorized, validly issued, fully paid (D) agreements entered into and nonassessable. Except as set forth in securities and other instruments issued after the date of this Agreement to the extent permitted by Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii)3.1, there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements of any character to which the Company or any Subsidiary of the Company is a party or by which it is bound in any case obligating the Company or any Subsidiary of the Company to issue, deliver, deliver or sell, purchase, redeem or acquire, or cause to be issued, delivered, delivered or sold, purchased, redeemed or acquired, additional shares of Company Capital Stock capital stock or any Voting Debt or other voting securities stock appreciation rights of the Company, Company or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support AgreementThere are no outstanding contractual obligations of Company (A) to repurchase, there are not any stockholder agreements, voting trusts redeem or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of otherwise acquire any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the (B) pursuant to which Company owns any is or could be required to register shares of Company Common Stock or any other shares of Company Capital Stocksecurities under the Securities Act.
(div) As Since December 31, 2016, except as set forth in Disclosure Schedule 4.2(b)(iv), Company has not (A) issued any shares of capital stock, stock appreciation rights or securities exercisable or exchangeable for or convertible into shares of capital stock of Company, other than pursuant to and as required by the terms of the date of this Agreement, neither Company Stock Incentive Plan and any employee stock options and other awards issued under the Company nor any of its Subsidiaries has any Stock Incentive Plan prior to the date hereof); (iB) interests in a material joint venture orrepurchased, redeemed or otherwise acquired, directly or indirectly, equity securities any shares of capital stock of Company (other than the acquisition of DPC shares in the ordinary course of business consistent with past practice); or (C) declared, set aside, made or paid to the stockholders of Company dividends or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed distributions on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set .
(v) Set forth in Disclosure Schedule 4.2 4.2(b)(v) is a true, correct and complete list of the all equity securities that Company Disclosure Letterowns, controls or holds for its own account, and all Company does not own more than 4.9% of such shares a class of voting securities of, or equity ownership interests are duly authorized and validly issued and are fully paidotherwise controls, nonassessable and free of preemptive rightsany Person.
Appears in 1 contract
Sources: Merger Agreement (Sierra Bancorp)
Capital Structure. (a) As of the date of this AgreementEffective Time, the authorized capital stock of the Company consists will consist of (i) 8,000,000 20,000,000 shares of Company Common Stock and (ii) 75,000,000 shares of preferred stockStock, par value $0.001 0.01 per share, and 1,000,000 shares of Preferred Stock, par value $0.01 per share (“"Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”"). At the close of business on November 6October 16, 2020 1995, (the “Measurement Date”): (Ai) 4,305,119 8,985,810 shares of Company Common Stock were issued and outstanding, all of which were validly issued, fully paid and nonassessable and free of preemptive rights, (ii) 153,080 shares of Company Common Stock were held in the treasury of the Company or by the Subsidiaries of the Company, and (Biii) no not more than 738,563 shares of Company Common Stock were reserved for future issuance pursuant to the Company's 1990 Stock Option Plan, 1991 Stock Option Plan, the 1993 Long-Term Incentive Plan, 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 Preferred Stock were issued and are outstanding;
(b) . As of the date of this Agreement, there are 58,775 except for stock options covering not in excess of 712,263 shares of Company Common Stock subject to outstanding issued under the Company Stock Awards Option Plans (collectively, the "Company Stock Options") and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from issuable under the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company Rights Plan (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(iihereinafter defined), there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it any of them is bound relating obligating the Company or any of its Subsidiaries to the voting of any issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of Subsidiaries or obligating the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has to grant, extend or enter into any (i) interests in a material joint venture orsuch option, directly warrant, call, right or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and agreement. Each outstanding shares share of capital stock or other equity ownership interests of each Subsidiary of the Company are that is a corporation is duly authorized, validly issued, fully paid and nonassessable and, except as disclosed in the Company SEC Documents (as hereinafter defined), each such share is owned by the Company or another Subsidiary of the Company, directly or indirectlyfree and clear of all security interests, all such shares or equity ownership interests are set forth in Schedule 4.2 liens, claims, pledges, options, rights of the Company Disclosure Letterfirst refusal, agreements, limitations on voting rights, charges and all other encumbrances of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightsany nature whatsoever.
Appears in 1 contract
Sources: Merger Agreement (Proffitts Inc)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (ix) 8,000,000 shares of Company Common Stock 2,000,000,000 Shares and (iiy) 75,000,000 shares of 25,000,000 preferred stockshares, par value $0.001 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital StockPreferred Shares”). At As of the close of business on November 6March 20, 2020 2025 (the “Measurement Capitalization Date”): ), (Ai) 4,305,119 shares of Company Common Stock 446,430,167 Shares were issued and outstandingoutstanding (11,101,917 of which were Company Restricted Stock), (ii) 1,848,280 Shares were held in the treasury of the Company, (iii) no Shares were held by any Subsidiary of the Company, (iv) no Preferred Shares were issued or outstanding and (v) 21,034,248 Shares were reserved for issuance under the Company Stock Plan (of which 10,801,369 Shares were subject to outstanding Company Options and 1,518,390 Shares were subject to outstanding Company RSUs, each as granted under the Company Stock Plan). All of the outstanding Shares have been duly authorized and validly issued and are fully paid and nonassessable (and free of preemptive rights, and (B) no shares were not issued in violation of any preemptive or other similar rights or applicable Law). As of the Capitalization Date, 362,503 Shares are reserved for issuance under the Company Preferred Stock were issued and outstanding;ESPP.
(b) As From the Capitalization Date to the execution of this Agreement, the Company has not issued any Shares, except pursuant to the exercise of Company Options, or the settlement of Company RSUs, in each case in accordance with their respective terms, and, since the Capitalization Date, except as expressly permitted by this Agreement for the period following the date of this Agreement, the Company has not granted any Company Options, Company Restricted Stock, or Company RSUs.
(c) Except as set forth in Section 4.2(a), as of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to no preemptive or outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable shares of capital stock or equity securities Laws and or obligations of the Company or its Subsidiaries convertible into or exchangeable for shares of capital stock or other applicable Law and equity or voting securities of the Company or its Subsidiaries or (ii) all requirements set forth in applicable Contracts. As rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, rights of first refusal, rights of first offer, “phantom” stock rights, equity-based compensation, contingent value rights, subscriptions, commitments or rights of any kind that obligate the Company or any of its Subsidiaries to issue, transfer or sell any shares of capital stock or other equity or voting securities of the close Company or any of business on the Measurement Dateits Subsidiaries or any securities or obligations convertible into or exchangeable or exercisable for, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights giving any Person a right to subscribe for, purchase for or acquire from the Company or any of its Subsidiaries any capital stock of the Company equity or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. The Company does not have outstanding any bonds, debentures, notes or other obligations that grant the holders thereof the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter. Each Company Option, Company Restricted Stock and Company RSU was granted in accordance with the terms of the Company Stock Plan and all other applicable Law.
(d) Section 4.2(d) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a list identifying (i) each of the Company’s Subsidiaries and the ownership interest of the Company and its Subsidiaries in each such Subsidiary and (ii) any other Person in which the Company or any of its Subsidiaries holds capital stock or other equity interest (other than securities held by any employee benefit plan of the Company or any of its Subsidiaries or any trustee, agent or other fiduciary in such capacity under any such employee benefit plan). No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As Shares. To the extent applicable in the relevant jurisdiction and for the applicable entity type, each of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests securities of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are ’s Subsidiaries has been duly authorized and validly issued and is fully paid and nonassessable (and were not issued in violation of applicable Law) and is owned by the Company or by a direct or indirect Subsidiary of the Company, free and clear of any lien, license, charge, pledge, security interest, claim or other encumbrance (each, a “Lien”) (except for Permitted Liens and Liens arising under applicable securities Laws).
(e) Section 4.2(e) of the Company Disclosure Letter accurately sets forth the following information with respect to all Company Options, Company Restricted Stock, or Company RSUs outstanding as of 5:00 p.m., Eastern Time, on the Capitalization Date: (i) the name of the holder of such Company Option, Company Restricted Stock, or Company RSU; (ii) the number of Shares subject to such Company Option, Company Restricted Stock, or Company RSU; (iii) if such award is a Company Option, the exercise price of such Company Option; (iv) the date on which such Company Option, Company Restricted Stock, or Company RSU was granted; (v) the date on which such Company Option, Company Restricted Stock, or Company RSU expires; and (vi) if such award is a Company RSU, the dates on which Shares are fully paidscheduled to be delivered, nonassessable and free if different from the applicable vesting schedule. The exercise price of preemptive rightseach outstanding Company Option is no less than the fair market value of a Share, as determined on the date of grant of such Company Option.
Appears in 1 contract
Capital Structure. The Company is authorized to issue a maximum of: (a) 2,000,000 convertible preferred shares with par value of US$ 0.0045 per convertible preferred share (the “Preferred Shares”); and (b) 40,000,000 Shares with par value of US$0.0045 per Share. As of the date of this Agreement, the authorized capital stock of the Company consists of (i) 8,000,000 shares of Company Common Stock no Preferred Share is issued and (ii) 75,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6, 2020 (the “Measurement Date”): (A) 4,305,119 shares of Company Common Stock were outstanding and 16,418,456 Shares are issued and outstanding, and (B) no shares . All of Company Preferred Stock were the issued and outstanding;
(b) As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock Shares have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contractsassessable. As of the close second Business Day prior to the date hereof, 153,571 Shares are reserved for future issuance pursuant to the Stock Incentive Plans. Each of business on the Measurement Dateoutstanding shares of share capital or other securities of each of the Company’s directly or indirectly wholly owned Subsidiaries, except as which are set forth in this Section 4.2 the Company’s annual report on Form 20-F for the year ended December 31, 2014 (“Wholly Owned Subsidiaries”), has been duly authorized, and validly issued, and is fully paid and non-assessable (to the extent such concept is applicable in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from relevant jurisdiction) and owned by the Company or by a Wholly Owned Subsidiary, free and clear of any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exerciselien, conversioncharge, purchasepledge, exchange security interest, mortgage, claim or other similar price thereofencumbrance (each, a “Lien” and collectively, “Liens”). All The outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company securities that are directly or indirectly owned by the Company, or a direct or indirect wholly owned Subsidiary Company of each of the Company’s Subsidiaries that are not Wholly Owned Subsidiaries (“Non-Wholly Owned Subsidiaries”) has been duly authorized and validly issued, are and is fully paid and non-assessable and owned by the Company or by a Wholly Owned Subsidiary, free and clear of all Encumbrances, any Lien other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessableLiens. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants there are no preemptive or other awards granted in accordance with Section 6.1(b)(ii)outstanding rights, there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptionsconversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or rights of any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which kind that obligate the Company or any of its Subsidiaries is a party to issue or by which it is bound relating to the voting of sell any shares of share capital stock or other securities of or equity interest interests in 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 securities of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity and no securities or other similar equity interests in obligations evidencing such rights are authorized, issued or outstanding. The Company does not have any Person or (ii) obligationsoutstanding bonds, whether contingent or otherwisedebentures, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock notes or other equity ownership interests obligations the holders of each Subsidiary which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the holders of the Shares on any matter. The Company are owned by the Companyis not party to a shareholder rights agreement, directly “poison pill” or indirectly, all such shares similar agreement or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightsplan.
Appears in 1 contract
Capital Structure. (a) As of the date of this Agreement, the authorized capital stock of the Company consists of (i) 8,000,000 50,000,000 shares of Company Common Stock and (ii) 75,000,000 5,000,000 shares of Company preferred stock, $0.01 par value $0.001 per share (“"Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”"). At the close of business on November 67, 2020 (the “Measurement Date”): 2018: (A) 4,305,119 8,482,880 shares of Company Common Stock were issued and outstanding, outstanding and (B) no shares of Company Preferred Stock were issued and outstanding;. Except as set forth in this Section 4.2, at the close of business on November 7, 2018, there is no other outstanding Company Capital Stock issued or outstanding.
(b) As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Capital Stock have been duly authorized and are validly issued, fully paid and non-assessable nonassessable and are not subject to preemptive rights. All outstanding shares of Company Common Capital Stock have been issued and granted in compliance in all material respects with (i) applicable state and federal securities Laws Laws, the MGCL and the Organizational Documents of the Company. The Company owns, directly or indirectly, all of the issued and outstanding shares of capital stock, membership interests or partnership interests, as applicable, of the Subsidiaries of the Company, free and clear of all Liens, other applicable Law and (ii) all requirements set forth in applicable Contractsthan Permitted Liens. As of the close of business on the Measurement DateNovember 7, 2018, except as set forth in this Section 4.2 and in the Transaction Support AgreementOrganizational Documents of the Company, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1i) no shares of Company Capital Stock, (ii) Voting Debt or other voting securities of the Company; Debt, (2iii) no securities of the Company or any Subsidiary of the Company convertible into or exchangeable or exercisable for shares of Company Capital StockStock or Voting Debt, Voting Debt or other voting securities of the Company; and (3iv) no subscriptions, options, warrants, subscriptions, calls, exchange rights, conversion rights, puts, rights of first refusal or other rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company is a party or by which it is bound bound, in any case case, obligating the Company or any Subsidiary of the Company to (A) issue, deliver, transfer, sell, purchase, redeem or acquire, or cause to be issued, delivered, transferred, sold, purchased, redeemed or acquired, additional shares of Company Capital Stock or Stock, any Voting Debt or other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to (B) grant, extend or enter into any such subscription, option, warrant, subscription, call, exchange right, conversion right, put, right of first refusal or other similar right, commitment or agreement. Other than Except as set forth in the Transaction Support AgreementOrganizational Documents of the Company, there are not any no stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(dc) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities All dividends or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate distributions on the shares of Company Capital Stock and any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock dividends or other equity ownership interests distributions on any securities of each any Subsidiary of the Company are owned by which have been authorized or declared prior to the Company, directly or indirectly, all date hereof have been paid in full (except to the extent such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued dividends have been declared and are fully paid, nonassessable not yet due and free of preemptive rightspayable).
Appears in 1 contract
Capital Structure. (a) As of the date of this Agreementhereof, the authorized capital stock of the Company consists of (i) 8,000,000 360,000,000 shares of Company Common Stock and (ii) 75,000,000 20,000,000 shares of preferred stock, par value $0.001 .01 per share (“"Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”"). At the close of business on November 6May 28, 2020 1998, (the “Measurement Date”): (Ai) 4,305,119 101,628,989 shares of Company Common Stock were issued and outstanding, all of which were validly issued, fully paid and nonassessable and free of preemptive rights, (Bii) no shares of Company Common Stock were held in 34 the treasury of the Company or by Subsidiaries of the Company and (iii) 9,239,457 shares of Company Common Stock were reserved for issuance pursuant to outstanding options (the "Company Stock Options") to purchase shares of Company Common Stock issued pursuant to the Company's Amended and Restated 1994 Stock Option Plan and 1996 Outside Directors Stock Option Plan (collectively, the "Company Stock Option Plans"). There are no shares issuable pursuant to the Company's Employee Stock Purchase Plan (the "Company Stock Purchase Plan"). The Company Stock Option Plans and the Company Stock Purchase Plan are the only benefit plans of the Company or its Subsidiaries under which any securities of the Company or any of its Subsidiaries are issuable. No shares of Company Preferred Stock were are issued and or outstanding;
(b) . As of the date of this Agreement, there are 58,775 except as set forth above and except for the issuance of shares of Company Common Stock subject to outstanding upon the exercise of Company Stock Awards and 12,182 shares of Company Common Stock subject to Options outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issuedon May 28, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted 1998 in compliance in all material respects accordance with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Dateterms thereof, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2) no securities Company were issued, reserved for issuance or outstanding. As of the Company or any Subsidiary date of this Agreement, except for (i) as set forth above, (ii) the Stock Option Agreement and (iii) rights to purchase one-one-thousandth of a share of Series A Junior Participating Preferred Stock (the "Rights") pursuant to a Rights Agreement dated as of December 29, 1997 (the "Rights Agreement") between the Company convertible into or exchangeable or exercisable for shares of Company Capital Stockand BankBoston, Voting Debt or other voting securities of the Company; and (3) N.A., as Rights Agent, there are no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments puts or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it any of them is bound relating obligating the Company or any of its Subsidiaries to the voting of issue, deliver, sell or redeem, or cause to be issued, delivered, sold or redeemed, any additional shares of capital stock (or other voting securities or equity interest equivalents) of the Company or any of its Subsidiaries. No Subsidiaries or obligating the Company or any of its Subsidiaries to grant, extend or enter into any such option, warrant, call, right, put or agreement.
(b) Each outstanding share of capital stock (or other voting security or equity equivalent) of each material Subsidiary of the Company owns is duly authorized, validly issued, fully paid and nonassessable, and each such share (or other voting security or equity equivalent) is 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 35 voting rights, charges and other encumbrances of any shares nature whatsoever. The Company does not have any outstanding bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company Common Stock or on any other shares matter. Exhibit 21 to the Company's Annual Report on Form 10-K for the year ended October 31, 1997, as filed with the SEC (the "Company Annual Report"), is a true, accurate and correct statement in all material respects of Company Capital Stockall of the information required to be set forth therein by the regulations of the SEC.
(dc) As Section 3.2 of the letter dated the date of this Agreement, neither hereof and delivered on the date hereof by the Company nor any to Parent, which letter relates to this Agreement and is designated the Company Letter (the "Company Letter"), sets forth a list of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its all Subsidiaries and its joint ventures listed on Schedule 4.2 Joint Ventures of the Company Disclosure Letterand the jurisdiction in which such Subsidiary or Joint Venture is organized.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 1 contract
Sources: Merger Agreement (Ciena Corp)
Capital Structure. (ai) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 850,000,000 Class A Shares, of which 93,913,554 Class A Shares (which includes 1,060,699 Company Restricted Shares) were outstanding as of the close of business on ▇▇▇▇▇ ▇, ▇▇▇▇, (▇▇) 140,000,000 Class B Shares, of which 48,202,310 Class B Shares were outstanding as of the close of business on ▇▇▇▇▇ ▇, ▇▇▇▇, (▇▇▇) 260,000,000 shares of Company Common Stock and (ii) 75,000,000 shares of preferred Class B1 common stock, par value $0.001 0.01 per share (“Company Preferred Stock” andshare, together with the Company Common Stock, the “Company Capital Stock”). At none of which were outstanding as of the close of business on November 6March 3, 2020 (the “Measurement Date”): (A) 4,305,119 shares of Company Common Stock were issued and outstanding2017, and (Biv) no 50,000,000 shares of Company Preferred Stock Stock, par value $0.01 per share, none of which were issued and outstanding;
(b) As outstanding as of the date close of this Agreementbusiness on March 3, there are 58,775 shares 2017. All of Company Common Stock subject to the outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock Shares have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rightsnonassessable. All outstanding Except as set forth on Section 5.1(b)(i)(A) of the Company Disclosure Letter, as of March 3, 2017, no Shares or Preferred Stock was held by the Company in its treasury. No Subsidiary of the Company owns any shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements capital stock of the Company. Other than as set forth in applicable Contracts. As on Section 5.1(b)(i)(B) of the Company Disclosure Letter, as of the close of business on March 3, 2017, the Measurement Date, except Company has no Shares reserved for issuance. Except as set forth in above, the Company does not have any shares of capital stock or other voting securities issued or outstanding, other than Shares that have become outstanding since March 3, 2017 pursuant to the issuance of the Exchange Class A Shares and the Additional SunE Shares or the exercise of Company Equity Awards, which were reserved for issuance as set forth above. Section 5.1(b)(i) (C) of the Company Disclosure Letter contains a correct and complete list of all Company Equity Awards outstanding as of the close of business on March 3, 2017, including the number of Shares subject to each Company Equity Award and its vesting schedule. Except as set forth above and except for the rights (the “Rights”) that have been issued pursuant to the Stockholder Protection Rights Agreement, dated as of July 24, 2016, between the Company and Computershare Trust Company, N.A., as Rights Agent (the “SPRA”), as of the date of this Section 4.2 and in the Transaction Support Agreement, there are no preemptive or other outstanding rights, options, warrants warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, commitments or other rights to subscribe for, purchase or acquire from of any kind that obligate the Company to (x) issue or sell any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries securities of the Company are owned by the Companyor any securities or obligations convertible or exchangeable into or exercisable for, or giving any Person a direct right to subscribe for, acquire or indirect wholly owned Subsidiary receive payments determined by reference to the value of any equity securities of the Company, and no securities or obligations evidencing such rights are free and clear authorized, issued or outstanding or (y) redeem, repurchase or otherwise acquire any such shares of all Encumbrancescapital stock or other equity interests. Upon any issuance of any Shares in accordance with the terms of the Stock Plans, other than Permitted Encumbrances, and have been such Shares will be duly authorized, validly issued, fully paid and nonassessablenonassessable and free and clear of any Liens. As of the date of this Agreement, the Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter. As of the date of this Agreement, the total cash balance of the Company and its Subsidiaries is in excess of $800 million, consisting approximately of $640 million of unrestricted cash and $160 million of restricted cash.
(ii) Section 5.1(b)(ii)(A) of the Company Disclosure Letter sets forth as of the date of this Agreement (x) each of the Company’s Subsidiaries, its place of organization and the ownership interest of the Company in each such Subsidiary, as well as, to the Knowledge of the Company (as defined in Section 5.1(g)), 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 outstanding capital stock of such company. Except as set forth in this on Section 4.25.1(b)(ii)(B) of the Company Disclosure Letter, and except for changes since each of the Measurement Date resulting from the exercise outstanding shares of capital stock options outstanding at such date, or stock grants or other awards equity securities of each of the Company’s Subsidiaries owned directly or indirectly by the Company is duly authorized, validly issued, fully paid and nonassessable and owned by the Company or by a direct or indirect Subsidiary of the Company, free and clear of any lien, charge, pledge, security interest, claim or other encumbrance (each, a “Lien”), other than any (i) obligations imposed under this Agreement, (ii) restrictions under applicable securities laws, (iii) obligations imposed on the shareholders or members of any Subsidiary of the Company under the applicable certificate of incorporation and by-laws, limited liability company agreements or comparable governing documents or tax equity capital contribution or investment agreements ((x) in the case of certificates of incorporation and by-laws, limited liability company agreements or comparable governing documents with respect to the Company and any Material Subsidiaries, copies of which have been made available to Sponsor and (y) in the case of tax equity capital contribution or investment agreements, copies of which have been made available to Sponsor) and (iv) Liens granted in accordance connection with Section 6.1(b)(ii)“Non-recourse Long-term Debt” as described in the Company Reports. Except as set forth above, as of the date of this Agreement, there are outstanding: 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 (1x) no issue or sell any shares of Company Capital Stock, Voting Debt capital stock or other voting equity securities of the Company; (2) no securities any Subsidiary of the Company or any Subsidiary of the Company securities or obligations convertible or exchangeable into or exchangeable exercisable for, or exercisable giving any Person a right to subscribe for shares of Company Capital Stockor acquire, Voting Debt or other voting any equity securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company is a party Company, and no securities or by which it is bound in obligations evidencing such rights are authorized, issued or outstanding or (y) redeem, repurchase or otherwise acquire 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 such shares of Company Capital Stock or any Voting Debt capital stock or other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. equity interests.
(iii) Other than any Ancillary Agreements, the Transaction Settlement Agreement and the Voting and Support Agreement, there are not any no voting agreements, voting trusts, stockholder agreements, voting trusts or proxies, other agreements or understandings to which the Company or any of its Subsidiaries is a party or by which it is bound relating with respect to the voting of any shares of the capital stock or other equity interest of interests of, restricting the transfer of, or providing for registration rights with respect to, the Company or any of its such Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 1 contract
Capital Structure. (ai) As of the date of this Agreement, the The authorized capital stock of the Company consists of (iA) 8,000,000 shares of Company Common Stock 300,000,000 Shares and (iiB) 75,000,000 shares of 1,000,000 preferred stockshares, par value $0.001 per share 0.0001 (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital StockPreferred Shares”). At As of the close of business on November 6September 10, 2020 2018, 89,747,062 Shares were issued and 89,727,546 outstanding, of which 12,476,250 are Founder Shares, and no Preferred Shares were issued and outstanding on such date. All of the outstanding Shares have been duly authorized and validly issued and are fully paid and nonassessable. As of September 10, 2018, there were an aggregate of 9,000,000 Shares reserved for, and 5,019,535 Shares subject to, issuance pursuant to the Company Stock Plan identified in Section 5.1(b)(i)(A) of the Company Disclosure Letter as being the only Company Stock Plan pursuant to which Shares may be issued (the “Measurement DateCompany Stock Plan”): (A) 4,305,119 shares of Company Common Stock and 25,012,500 Shares were issued and outstanding, and (B) no shares of Company Preferred Stock were issued and outstanding;
(b) subject to purchase under the Warrants. As of September 10, 2018, there were an aggregate of 50,025,000 outstanding Warrants issued to public investors in the Company’s initial public offering. Except as provided in the preceding sentence and except for Shares that after the date of hereof become reserved for issuance or subject to issuance as permitted under this Agreement, there are 58,775 the Company has no Shares reserved for, or subject to, issuance, or any commitment to authorize, issue, transfer or sell any Shares. Following the payment made pursuant to Section 6.15(d), no Person shall have any further entitlement or rights to receive payment from the Company, Parent or any of their respective Subsidiaries pursuant to the Legacy Merger Agreement and the transactions contemplated thereby. The Company has no Preferred Shares or other shares of Company Common Stock capital stock reserved for or subject to outstanding Company Stock Awards and 12,182 issuance (it being understood that “other shares of Company Common Stock subject to capital stock” shall not include Shares). The outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock Shares have been duly authorized and are validly issued, fully paid and non-assessable nonassessable and are not subject to preemptive rights (and were not issued in violation of any preemptive rights). All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) the rights, terms, preferences, restrictions or other provisions, including any antitakeover provision, applicable securities Laws and other applicable Law and (ii) all requirements to the Shares are set forth in applicable Contracts. As the Company Certificate of Incorporation and the Company Bylaws, agreements with Company shareholders set forth on Section 5.1(b)(i) of the close Company Disclosure Letter, true and complete copies of business which have been made available to Parent at least two (2) Business Days prior to the date hereof, or the applicable provisions of the DGCL. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the shareholders of the Company on the Measurement Date, except any matter. Except as set forth in this Section 4.2 and in 5.1(b)(i), as of the Transaction Support date of this Agreement, there are no preemptive or other outstanding rights, options, warrants 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 rights equity or voting 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, purchase for or acquire from the Company or any of its Subsidiaries any capital stock equity or voting securities of the Company, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(ii) From September 10, 2018 to the execution of this Agreement, the Company has not issued any Shares except pursuant to the exercise of Company Options, Warrants or the settlement of Company Performance Share Unit Awards and Company RSU-S Awards outstanding as of September 10, 2018, in accordance with their terms and, since September 10, 2018, except as permitted by this Agreement for the period following the date of this Agreement, the Company has not issued any Company Options, Warrants, Company Restricted Stock Awards, Company RSU-S Awards, Company RSU-C Awards, or Company Performance Share Unit Awards. Upon any issuance of any Shares in accordance with the terms of the Company Stock Plan, such Shares will be duly authorized, validly issued and fully paid and nonassessable and free and clear of any lien, charge, pledge, security interest, claim or securities convertible into or exchangeable or exercisable for capital stock other encumbrance (each, a “Lien”). Each of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests securities of each of the Company’s Subsidiaries of the Company are has been duly authorized and validly issued and is fully paid and nonassessable and owned by the Company, Company or by a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, any Lien (other than any Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessableLiens). Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (15.1(b)(ii) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2) no securities of the Company or any Disclosure Letter contains a correct and complete list as of September 10, 2018 of (v) the number of Shares subject to outstanding Company RSU-C Awards, (w) the number of Shares subject to outstanding Company RSU-S Awards, (x) the number of Shares subject to outstanding Company Options, together with the weighted average exercise price of such Company Options, (y) the number of Shares outstanding covered by Company Restricted Stock Awards and (z) the number of Shares subject to outstanding Company Performance Share Unit Awards (assuming the achievement of performance criteria (I) at maximum levels and (II) at target levels). No Subsidiary of the Company convertible into or exchangeable or exercisable for holds shares of Company Capital Stock, Voting Debt or other voting securities capital stock of the Company; and .
(3iii) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary Section 5.1(b)(iii) of the Company is a party or by which it is bound in any case obligating Disclosure Letter sets forth, as of the Company or any Subsidiary date of this Agreement, (A) each of the Company’s Subsidiaries and the ownership interest 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 in each such Subsidiary and (B) any Voting Debt or other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to Person in which the Company or any of its Subsidiaries is may hold capital stock or other equity interest that has a party book value in excess of $500,000 (other than securities held by any employee benefit plan of the Company or by which it is bound relating any of its Subsidiaries or any trustee, agent or other fiduciary in such capacity under any such employee benefit plan). No Subsidiary of the Company owns any Shares. As of the date of this Agreement, 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 the voting of issue or sell any shares of capital stock or other equity interest or voting securities of any of the Subsidiaries of the Company or any securities or obligations convertible or exchangeable into or exercisable for, or giving any Person a right to subscribe for or acquire from the Company or any of its Subsidiaries. No Subsidiary Subsidiaries any equity or voting securities of any of the Subsidiaries of the Company, and no securities or obligations evidencing such rights are authorized, issued or outstanding.
(iv) Section 5.1(b)(iv) of the Company owns Disclosure Letter sets forth any shares voting trusts, proxies, shareholder agreements or other agreements or understandings to which the Company is a party with respect to the voting of Company Common Stock or any other shares of Company Capital StockShares.
(dv) As Section 5.1(b)(v) of the Company Disclosure Letter sets forth a list of all bonds, debentures, notes or other material third party debt obligations in excess of $500,000 that the Company or any of its Subsidiaries has issued and are outstanding as of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 1 contract
Sources: Merger Agreement (Univar Inc.)
Capital Structure. (ai) As of the date of this AgreementAgreement (the "Share Reference Date"), the authorized capital stock of the Company consists CCI consisted of (iA) 8,000,000 40,000,000 shares of Company CCI Common Stock Stock, of which 22,853,345 shares were outstanding and (iiB) 75,000,000 1,000,000 shares of preferred stock, par value $0.001 per share of which 150,000 shares of Series A Preferred Stock have been designated (“Company Preferred Stock” andnone of which have been issued) and were reserved for issuance upon exercise of the rights (the "Rights") distributed to the holders of CCI Common Stock pursuant to the Rights Agreement dated as of December 10, together with 1990, as amended, between CCI and State Street Bank and Trust Company, as successor to The Bank of New York, as rights agent (the Company Common Stock, the “Company Capital Stock”"Rights Agreement"). At Since the close of business on November 6Share Reference Date, 2020 (the “Measurement Date”): (A) 4,305,119 shares of Company Common Stock were issued and outstanding, and (B) no shares of Company Preferred Stock were issued and outstanding;
(b) As of to the date of this Agreement, there are 58,775 have been no issuances of shares of Company Common Stock subject the capital stock of CCI or any other securities of CCI other than issuances of shares pursuant to options or rights outstanding Company Stock Awards as of the Share Reference Date under the CCI Benefit Plans (as defined below). All issued and 12,182 outstanding shares of Company Common Stock subject the capital stock of CCI are duly authorized, validly issued, fully paid and non-assessable, and no class of capital stock is entitled to preemptive rights. There were outstanding Company RSU Awardsas of the Share Reference Date no options, warrants or other rights to acquire capital stock from CCI other than the options specified in Section 5.5(a). No options or warrants or other rights to acquire capital stock from CCI have been issued or granted since the Share Reference Date to the date of this Agreement.
(cii) All Except as set forth in Section 3.1(b) of the CCI Disclosure Schedule, all of the issued and outstanding shares of Company Common Stock have been capital stock of each Consolidated Subsidiary that is a corporation are duly authorized and are authorized, validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Dateowned, except as set forth in this Section 4.2 and in the Transaction Support Agreementdirectly or indirectly, there are no outstanding optionsby CCI and, warrants where owned by CCI or other rights to subscribe fora Consolidated Subsidiary, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrancesany liens, claims, encumbrances, restrictions, preemptive rights or any other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessableclaims of any third party ("Liens"). Except as set forth in this Section 4.23.1(b) of the CCI Disclosure Schedule, all of the partnership or limited liability company interests of each Consolidated Subsidiary that is a partnership or a limited liability company have been validly created pursuant to its partnership agreement or limited liability company agreement, as applicable, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities all of the Company; (2) no securities partnership or limited liability interests of the Company or any each such Consolidated Subsidiary of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture orowned, directly or indirectly, equity securities by CCI and, where owned by CCI or other similar equity interests in a Consolidated Subsidiary, are owned free and clear of any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure LetterLiens.
(eiii) Except as set forth in Schedule 4.2 Section 3.1(b) of the Company CCI Disclosure LetterSchedule, all of the issued and outstanding shares of capital stock owned by CCI or other equity ownership a Consolidated Subsidiary in each Managed Affiliate or CCI Affiliate which is a corporation are duly authorized, validly issued, fully paid and non-assessable and, where owned directly by CCI or a Consolidated Subsidiary, as applicable, are owned free and clear of any Liens. Except as set forth in Section 3.1(b) of the CCI Disclosure Schedule, all of the partnership interests of each Managed Affiliate or CCI Affiliate which is a partnership in which CCI or a Consolidated Subsidiary has a direct partnership interest have been validly created pursuant to such partnership's partnership agreement and all of the Company are partnership interests of each partnership Managed Affiliate or CCI Affiliate directly owned by CCI or a Consolidated Subsidiary, as applicable, are free and clear of any Liens.
(iv) As of the Companydate of this Agreement, directly no bonds, debentures, notes or indirectly, all such shares other indebtedness of CCI having the right to vote on any matters on which shareholders may vote ("CCI Voting Debt") are issued or equity ownership interests are outstanding.
(v) Except as otherwise set forth in Schedule 4.2 this Section 3.1(b), as of the Company Disclosure Letterdate of this Agreement, there are no securities, options, warrants, calls, rights, commitments, agreements, arrangements or undertakings of any kind to which CCI or any of the Consolidated Subsidiaries is a party or by which any of them is bound obligating CCI or any of the Consolidated Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other voting securities of CCI or any of the Consolidated Subsidiaries or obligating CCI or any of the Consolidated Subsidiaries to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. As of the date of this Agreement, there are no outstanding obligations of CCI or any of the Consolidated Subsidiaries to repurchase, redeem or otherwise acquire any shares of capital stock of CCI or any of the Consolidated Subsidiaries.
(vi) As of July 16, 1999, the only outstanding indebtedness for borrowed money of CCI, the Consolidated Subsidiaries and the Managed Affiliates is (a) indebtedness under a Senior Bank Credit Facility dated September 18, 1997 with The Chase Manhattan Bank, as administrative agent and collateral agent, Chase Manhattan Bank Delaware, as fronting bank, and the other lenders named therein (the "Chase Facility") not exceeding $739,000,000, (b) indebtedness owed to CIFC by Consolidated Subsidiaries or Managed Affiliates under the credit facilities set forth on Section 3.1(i) of the CCI Disclosure Schedule (the "CIFC Facilities"), (c) indebtedness to CoreStates Bank (now known as First Union National Bank) under the Credit Agreement dated as of September 4, 1996 between Sioux Falls Cellular Limited Partnership and CoreStates Bank, N.A. (the "CoreStates Facility") not exceeding $2,916,332, (d) indebtedness to CoBank ACB ("CoBank") under the Credit Agreement dated as of July 31, 1997 between Eastern South Dakota Cellular of South Dakota LP and CoBank not exceeding $0, (e) indebtedness to CoBank under the Credit Agreement dated as of July 31, 1997 between Sanborn Cellular of South Dakota Limited Partnership and CoBank not exceeding $3,939,888, (f) indebtedness to CoBank under the Credit Agreement dated as of July 31, 1997 between Missouri Valley Cellular of South Dakota Limited Partnership and CoBank not exceeding $3,172,258, (g) indebtedness to CoBank under the Credit Agreement dated as of June 14, 1998 between Pueblo Cellular, Inc. and CoBank not exceeding $5,604,851, and (h) other indebtedness for borrowed money not exceeding $100,000. Other than any loans and other extensions of credit under the facilities referred to in clauses (a) through (g) above, all of such which are prepayable in full in accordance with their terms (without penalty other than break funding costs), no indebtedness for borrowed money of CCI or the Consolidated Subsidiaries contains any restriction upon the incurrence of indebtedness for borrowed money by CCI or any Consolidated Subsidiary or any Managed Affiliate or restricts the ability of any of the foregoing to grant any Liens on its properties or assets. There are no agreements or arrangements pursuant to which CCI or the Consolidated Subsidiaries has guaranteed or agreed to be liable for the obligations of another Person for borrowed money, other than CCI and its wholly owned Subsidiaries.
(vii) There are no agreements or arrangements pursuant to which (i) except as set forth on Section 3.1(b) of the CCI Disclosure Schedule, CCI is or could be required to register shares of CCI Common Stock or equity ownership interests are duly authorized other securities under the Securities Act of 1933, as amended (the "Securities Act"), or (ii) CCI is a party and validly issued and are fully paid, nonassessable and free which restricts the voting or disposition of preemptive rightsany CCI Common Stock.
Appears in 1 contract
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 150,000,000 shares of Company Common Stock and (ii) 75,000,000 shares of preferred stockStock, par value $0.001 .0l per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”)share. At the close of business on November 6July 2, 2020 1998, (the “Measurement Date”): (Ai) 4,305,119 64,020,413 shares of Company Common Stock were issued and outstanding, all of which were validly issued, fully paid and nonassessable and free of preemptive rights, (Bii) no 24,000 shares of Company Preferred Common Stock were issued held in the treasury of the Company or by the Subsidiaries of the Company, (iii) not more than 6,235,000 shares of Company Common Stock were reserved for future issuance pursuant to the Saks Holdings, Inc. 1996 Management Stock Incentive Plan, (the "Company Stock Plan" (iv) 6,641,000 shares of Company Common Stock were reserved for issuance pursuant to the Company's 51/2% Convertible Subordinated Notes due September 15, 2006 (the "Notes") and outstanding;
(bv) 64,000 shares of Company Common Stock were reserved for issuance pursuant to the 1997 Non-Employee Directors Plan. As of the date of this Agreement, there are 58,775 except for stock options covering not in excess of 5,375,000 shares of Company Common Stock subject to outstanding issued under the Company Stock Awards Plans (collectively, the "Company Stock Options") and 12,182 shares of Company Common Stock subject to except for the outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support AgreementNotes, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it any of them is bound relating obligating the Company or any of its Subsidiaries to the voting of any issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interest of the Company or any of its SubsidiariesSubsidiaries or securities convertible into or exchangeable for such capital stock, or obligating the Company or any of its Subsidiaries to grant, extend or enter into any such option, warrant, call, right or agreement. No Subsidiary Except as disclosed in the Company SEC Documents (as hereinafter defined) filed prior to the date hereof, since July 2, 1998, the Company has not issued any shares of its capital stock, or securities convertible into or exchangeable for such capital stock, other than shares issued in the ordinary course pursuant to the Company Stock Plans. Except as disclosed in the Company SEC Documents filed prior to the date hereof, there are no outstanding contractual obligations of the Company owns or any of the Company's Subsidiaries (i) restricting the transfer of, (ii) affecting the voting rights of, (iii) requiring the repurchase, redemption or disposition of, (iv) requiring the registration for sale of, or (v) granting any preemptive or antidilutive right with respect to, any shares of Company Common Stock or any other shares capital stock of Company Capital Stock.
(d) As any Subsidiary of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and Company. Each outstanding shares share of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Companythat is a corporation is duly authorized, directly or indirectlyvalidly issued, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights., and except as disclosed in the Company SEC Documents filed prior to the date hereof, each such share is 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. Section
Appears in 1 contract
Sources: Merger Agreement (Saks Holdings Inc)
Capital Structure. (ai) The authorized capital stock of the Company consists of 8.65 billion Company Shares, of which 1,801,734,512 Company Shares were issued and outstanding as of March 1, 2006, and 100 million shares of First Preferred Stock, par value $1.00 per share (the "Company Preferred Shares"), none of which were outstanding as of the date of this Agreement. All of the outstanding Company Shares have been duly authorized and validly issued and are fully paid and nonassessable. The Company has no Company Shares or Company Preferred Shares reserved for issuance, except that (A) as of the date of this Agreement, there are an aggregate of 30 million Company Preferred Shares, designated "Series B First Preferred Stock", reserved for issuance pursuant to the Rights Agreement, dated as of November 22, 1999, between the Company and ChaseMellon Shareholder Services, L.L.C., as Rights Agent, as amended by Amendment No. 1 thereto, dated as of March 2, 2005 (the "Rights Agreement") and (B) as of March 1, 2006, there were an aggregate of 166,891,548 Company Shares reserved for issuance pursuant to the Company Stock Plans. Section 5.1(b) of the Company Disclosure Letter contains a correct and complete list as of March 1, 2006 of (x) the number of outstanding Company Options, the exercise price of all Company Options and number of Company Shares issuable at such exercise price and (y) the number of outstanding rights, including those issued under the Company Stock Plans, to receive, or rights the value of which is determined by reference to, Company Shares, the date of grant and number of Company Shares subject thereto (including without limitation restricted stock, restricted stock units and performance shares) (each a "Common Stock Unit"). From March 1, 2006 to the date of this Agreement, the Company has not issued any Company Shares except pursuant to the exercise of Company Options and the settlement of Common Stock Units outstanding on March 1, 2006 in accordance with their terms and pursuant to the Company's Direct Investment Plan, dated November 16, 2004 (the "Company Direct Investment Plan"), and since March 1, 2006, the Company has not issued any Company Options or Common Stock Units. All outstanding grants of Company Options and Common Stock Units were made under the Company Stock Plans. Except as set forth in this Section 5.1(b) and the right to purchase Company Shares pursuant to the Company Direct Investment Plan, as of the date of this Agreement, 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 or any securities or obligations convertible or exchangeable into or exercisable for, or giving any Person a right to subscribe for or acquire from the Company or any of its Subsidiaries, any other securities of the Company and no securities or obligations of the Company or any of its Subsidiaries evidencing such rights are authorized, issued or outstanding. Except (x) as set forth in this Section 5.1(b) or (y) pursuant to the Company Direct Investment Plan, as of the date of this Agreement, the Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the shareholders of the Company on any matter.
(ii) As of the date of this Agreement, each of the authorized outstanding shares of capital stock or other securities of each of the Company consists Company's Subsidiaries that constitute a "Significant Subsidiary" (as defined in Rule 1.02(w) of (i) 8,000,000 shares Regulation S-X promulgated pursuant to the Exchange Act), which term shall not be deemed to include Cingular, YP.com or any of Company Common Stock their respective Subsidiaries, has been du▇▇ ▇▇▇horized and (ii) 75,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock” and, together with validly issued and is fully paid and nonassessable and owned by the Company Common Stockor by a direct or indirect wholly-owned Subsidiary of the Company, free and clear of any lien, charge, pledge, security interest, claim or other encumbrance (each, a "Lien"), except for such Liens as would not, individually or in the “aggregate, reasonably be likely to have a Company Capital Stock”)Material Adverse Effect. At the close of business on November 6, 2020 (the “Measurement Date”): (A) 4,305,119 shares of Company Common Stock were issued and outstanding, and (B) no shares of Company Preferred Stock were issued and outstanding;
(b) As of the date of this Agreement, there are 58,775 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 Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares capital stock or other equity securities of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As any of the close of business on the Measurement DateCompany's Subsidiaries (including Cingular) or any securities or obligations convertible or exchangeable into or exercisable for, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights giving any Person a right to subscribe for, purchase for or acquire from the Company or any of its Subsidiaries Subsidiaries, any capital stock equity securities of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary any of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances's Subsidiaries (including Cingular), and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2) no securities or obligations of the Company or any Subsidiary of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party evidencing such rights are authorized, issued or by which it is bound relating outstanding. Section 5.1(b) of the Company Disclosure Letter contains, to the knowledge of the executive officers of the Company, a true and complete list as of the date of this Agreement of each Person in which the Company owns, directly or indirectly, (other than through Cingular, YP.com and their respective Subsidiaries) any voting intere▇▇ ▇▇▇t may require a filing by Parent or any affiliate of any shares Parent under the Hart-Scott-Rodino Antitrust Improvements Act of capital stock 1976, as am▇▇▇▇▇ (▇▇▇ "▇▇▇ ▇ct") other than voting interests that are owned, directly or other equity interest of indirectly, by the Company or any of its Subsidiaries. No Subsidiary Subsidiaries the acquisition of which will be exempt from the filing requirements under the HSR Act or was exempt at the time of the Company owns any shares of Company Common Stock Company's direct or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all indirect acquisition of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightspursuant to 16 C.F.R. ss.802.
Appears in 1 contract
Sources: Merger Agreement (Bellsouth Corp)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (iA) 8,000,000 shares of 60,000,000 Company Common Stock and (ii) 75,000,000 shares of preferred stockShares, par value $0.001 0.20 per share, (B) 25,000 shares of preferred stock of the Company, par value $100.00 per share (the “Company Preferred Stock” and”) and (C) 475,000 shares of serial preferred stock of the Company, together with the Company Common Stock, par value $1.00 per share (the “Company Capital Serial Preferred Stock”). At the close of business on November 6October 5, 2020 2018 (the “Measurement Capitalization Date”): (Ai) 4,305,119 shares of 29,453,140 Company Common Stock Shares were issued and outstanding, and ; (Bii) no shares of Company Preferred Stock were issued and outstanding;
; (biii) As no shares of Company Serial Preferred Stock were issued and outstanding; (iv) 3,737,327 Company Shares were held by the Company in its treasury; (v) 1,162,730 Company Shares were subject to issuance upon the exercise of outstanding Company Options (whether or not presently exercisable); (vi) 100,227 Company Shares were subject to issuance upon the settlement of outstanding Company RSUs; (vii) 115,083 Company Shares were subject to issuance upon the settlement of outstanding Company PSUs assuming achievement at target levels; (viii) 2,120,585 Company Shares were reserved for the future grant of Company Equity Awards under the Company Stock Plans; and (ix) 438,111 Company Shares were reserved for the future issuance under the Company ESPP or for purposes of the Company ▇▇▇▇ Scheme. From the close of business on the Capitalization Date to the date of this Agreement, there are 58,775 shares of the Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are has not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and or granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, any Equity Securities except as set forth in this on Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock 3.03(a) of the Company or securities convertible into or exchangeable or exercisable for capital stock Disclosure Letter.
(b) All outstanding Company Shares are, and all Company Shares that may be issued upon the exercise of the Company (Options and the exercisesettlement of Company RSUs and Company PSUs shall be, conversionwhen issued, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessablenonassessable and not subject to, or issued in violation of, any preemptive right. Except As of the date of this Agreement, other than as set forth in this Section 4.23.03(b) of the Company Disclosure Letter, and except for changes since or, with respect to any foreign Subsidiary of the Measurement Date resulting from the exercise of stock options outstanding at such dateCompany, directors’ qualifying shares or stock grants or other awards granted in accordance with Section 6.1(b)(ii)similar arrangements required by applicable Law, there are no issued, reserved for issuance or outstanding: , and there are not any outstanding obligations of any Company Entity to issue, deliver or sell, or cause to be issued, delivered or sold, (1i) no shares any capital stock of any Company Capital Stock, Voting Debt Entity or other voting any securities of the Company; (2) no securities of the any Company or any Subsidiary of the Company Entity convertible into or exchangeable or exercisable for shares of Company Capital Stockcapital stock or voting securities of, Voting Debt or other voting securities of the Company; and equity interests in, any Company Entity or (3ii) no options, any warrants, subscriptions, calls, options or other rights (including preemptive and appreciation rights)to acquire from any Company Entity, commitments or agreements to which the Company or any Subsidiary other obligation of the any Company is a party or by which it is bound in any case obligating the Company or any Subsidiary of the Company Entity to issue, deliver, deliver or sell, purchase, redeem or acquire, or cause to be issued, delivered, delivered or sold, purchasedany capital stock or voting securities of, redeemed or acquired, additional shares of Company Capital Stock or any Voting Debt or other voting securities of equity interests in, any Company Entity (the Companyforegoing clauses (i) and (ii), or obligating the Company or any Subsidiary collectively, “Equity Securities”). Except as set forth in Section 3.03(b) of the Company Disclosure Letter, no Company Entity has any outstanding obligation to grantrepurchase, extend redeem or enter into otherwise acquire any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which Equity Securities.
(c) Except for the Company Subsidiaries and investments in marketable securities and cash equivalents, none of the Company nor any Company Subsidiary (i) owns or holds any equity securities, ownership interests or voting interests of, or securities exchangeable therefor, or investments in, any other Person or has the right to acquire any of its Subsidiaries is a party the foregoing or by which it is bound relating (ii) has any obligation or has made any commitment to the voting of acquire any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or to provide funds to or make any investment (ii) obligationsin the form of a loan, whether contingent capital contribution or otherwise, to consummate any material additional investment ) in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure LetterPerson.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 1 contract
Capital Structure. (ai) The authorized share capital of the Company is $1,000,000 divided into 100,000,000 ordinary shares of $0.01 par value each (the “Ordinary Shares”). As of December 6, 2013 (the “Reference Date”): (A) 25,440,012 Ordinary Shares were issued and outstanding, which number includes 23,057,239 Shares represented by ADSs held in brokerage accounts in the Company’s name, and (B) no Shares were held by the Company as treasury shares and no Shares were held by any Company Subsidiary. As of the Reference Date, there were (A) outstanding Company Options to purchase 6,946,504 Ordinary Shares in the aggregate and (B) outstanding Company RSUs with respect to 3,241,000 Ordinary Shares in the aggregate. From the close of business on the Reference Date until the date of this Agreement, no options or warrants to purchase, or other instruments convertible into, Shares have been granted and no share capital of the Company have been issued, except for (A) Shares issued pursuant to the exercise of Company Options outstanding as of the close of business on the Reference Date in accordance with their respective terms, or (B) Shares issued upon the vesting and settlement of the Company RSUs outstanding as of the close of business on the Reference Date, in accordance with their respective terms.
(ii) Except as set forth above in Section 5.1(c)(i) and save for the ADSs and the Deposit Agreement, as of the date of this Agreement, the authorized capital stock of the Company consists of (i) 8,000,000 shares of Company Common Stock and (ii) 75,000,000 shares of preferred stock, par value $0.001 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6, 2020 (the “Measurement Date”): (A) 4,305,119 shares of Company Common Stock were issued and outstanding, and (B) no shares of Company Preferred Stock were issued and outstanding;
(b) As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding (1) shares or other securities of the Company, (2) securities of the Company convertible into or exchangeable for shares or other securities of the Company, or (3) options, warrants restricted share units, restricted shares, phantom shares, warrants, equity equivalent interests in the ownership or earnings of the Company or other similar rights, rights or other commitments or agreements to subscribe for, purchase or acquire from the Company Company, or any of its Subsidiaries any capital stock obligations of the Company to issue, any shares or other securities of the Company, or securities convertible into or exchangeable for shares or exercisable for capital stock other securities of the Company (the items in foregoing clauses (1), (2) and (3) are referred to collectively as the exercise“Company Securities”), conversion, purchase, exchange or other similar price thereof). All and (B) there are no outstanding shares of capital stock or other equity interests of the Subsidiaries obligations of the Company are owned by the Companyto repurchase, redeem or a direct or indirect wholly owned Subsidiary otherwise acquire any Company Securities. As of the Companydate hereof, are free and clear of all Encumbrances, other than Permitted Encumbrancesoutstanding Shares are, and have been all Shares which may be issued pursuant to the exercise of Company Options outstanding and upon the vesting and/or settlement of the Company RSUs outstanding will be, when issued in accordance with the terms thereof, duly authorized, validly issued, fully paid and nonassessablenonassessable and not subject to preemptive rights. Each grant of Company Options and Company RSUs was duly authorized by all necessary corporate action, and such grant was made in material compliance with the terms of the Company Plan, and in all material respects with all applicable Laws, including the rules and regulations of the NASDAQ.
(iii) Except as set forth in Section 5.1(c)(iii) of the Company Disclosure Schedule, all of the issued and outstanding shares or other equity interests of each of the Company Subsidiaries are owned by the Company or another Company Subsidiary, free and clear of all Liens (other than Permitted Liens). Each of the outstanding shares or other equity interests of each of the Company Subsidiaries (other than the PRC Subsidiaries) is duly authorized, validly issued, fully paid and nonassessable (in each case, to the extent applicable). The registered capital of each PRC Subsidiary has been fully and duly paid up within the prescribed time. Except as set forth in this on Section 4.2, and except for changes since 5.1(c)(iii) of the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii)Company Disclosure Schedule, there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptionsconvertible securities or other agreements or commitments, calls, rights (including preemptive and appreciation rights), commitments or agreements to which in each case issued by the Company or any Subsidiary of the Company is a party or by which it is bound in any case obligating the Company or any Subsidiary of the Company to issueSubsidiary, 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the issuance, transfer, sales, voting or redemption (including any rights of conversion or exchange under any shares outstanding security or other instrument) for any of the capital stock or other equity interest of the interests of, or other ownership interests in, any Company or any of its SubsidiariesSubsidiary. No Subsidiary of the Company owns any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As of the date of this Agreement, neither except for the Company nor any Subsidiaries and as set forth on Section 5.1(c)(iii) of its Subsidiaries has any (i) interests in a material joint venture orthe Company Disclosure Schedule, the Company does not own, directly or indirectly, equity securities any shares of share capital of, or other similar equity interests in interest in, or any interest convertible into or exercisable or exchangeable for any shares of share capital of, or other equity interest in, any other Person or (ii) obligations, whether contingent or otherwise, that is material to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 the business operations of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of and the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightsSubsidiaries taken as a whole.
Appears in 1 contract
Sources: Merger Agreement (ChinaEdu CORP)
Capital Structure. (ai) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 shares 2,400,000,000 Company Shares, of which 1,100,161,364 Company Common Stock Shares were issued and (ii) 75,000,000 shares outstanding and 76,993,242 Company Shares were held in treasury as of preferred stock, par value $0.001 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on November 6April 30, 2020 1998, 30,000,000 shares of Preferred Stock, $1.00 par value per share (the “Measurement Date”): (A) 4,305,119 "Company Preferred Shares"), none of which were outstanding as of the close of business on May 8, 1998 and 30,000,000 shares of Preference Stock, $1.00 par value per share, (the "Company Preference Shares"), none of which were outstanding as of the close of business on May 8, 1998. All of the outstanding Company Shares have been duly authorized and are validly issued, fully paid and nonassessable. Other than 12,000,000 Company Preference Shares, designated "Series A Junior Participating Preference Stock", reserved for issuance pursuant to the Rights Agreement, dated as of December 21, 1988, between the Company and American Transtech Inc., as Rights Agent (the "Rights Agreement"), and Company Shares subject to issuance as set forth below, the Company has no Company Shares, Company Preferred Shares or Company Preference Shares reserved for or otherwise subject to issuance. As of May 10, 1998, there were not more than 47,000,000 Company Shares that the Company was obligated to issue pursuant to the Company Compensation and Benefit Plans identified in Section 5.1(h) of the Company Disclosure Letter as being the only Company Compensation and Benefit Plans pursuant to which Company Shares may be issued (collectively the "Company Stock Plans"). Each of the outstanding shares of capital stock or other securities of each of the Company's Subsidiaries that constitute a "Significant Subsidiary" (as defined in Rule 1.02(w) of Regulation S-X promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), is duly authorized, validly issued, fully paid and nonassessable and owned by the Company or a direct or indirect wholly-owned Subsidiary of the Company, free and clear of any lien, pledge, security interest, claim or other encumbrance. Except as set forth above and for Company Shares and options to purchase Company Shares which may be issued in accordance with Section 6.1(a), there are no preemptive or other outstanding rights, 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 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 securities of the Company or any of its Significant Subsidiaries, and no securities or obligations evidencing such rights are authorized, issued or outstanding. The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter.
(ii) The authorized capital stock of SBC consists of 7,000,000,000 shares of SBC Common Stock Stock, of which 1,838,844,294 shares were issued and outstandingoutstanding and 26,060,210 shares were held in treasury as of the close of business on April 30, 1998, and (B) no 10,000,000 shares of Company Preferred Stock Stock, par value $1.00 per share (the "SBC Preferred Shares"), none of which shares were issued and outstanding;
(b) As outstanding as of the date close of this Agreementbusiness on May 8, there are 58,775 shares 1998. All of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All the outstanding shares of Company SBC Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not nonassessable. SBC has no shares of SBC Common Stock or SBC Preferred Shares reserved for or subject to preemptive rights. All outstanding shares issuance except that SBC has reserved no more than 10,000,000 SBC Preferred Shares for or subject to issuance pursuant to the Rights Agreement, dated as of Company Common Stock have been issued January 27, 1989, between SBC and granted in compliance in all material respects with American Transtech, Inc., as Rights Agent, as amended by the Amendment of Rights Agreement, dated as of August 5, 1992, between SBC and The Bank of New York, as successor Rights Agent, and the Second Amendment of Rights Agreement, dated as of June 15, 1994, between SBC and The Bank of New York, as successor Rights Agent (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contractsas amended, the "SBC Rights Agreement"). As of the close of business on the Measurement DateMay 10, except as set forth in this Section 4.2 and in the Transaction Support Agreement1998, there are no outstanding optionswere not more than 92,000,000 shares of SBC Common Stock that SBC was obligated to issue pursuant to (x) SBC's Senior Management Long Term Incentive Plan, warrants or other rights to subscribe forSenior Management Incentive Award Deferral Plan, purchase or acquire from Non-Employee Directors Stock and Deferral Plan, Stock Savings Plan, 1994 Stock Option Plan, 1996 Stock and Incentive Plan, 1995 Management Stock Option Plan, Savings Plan and the Company or any of its Subsidiaries any capital stock Savings and Security Plan and (y) Pacific Telesis Group's Supplemental Retirement and Savings Plan for Salaried Employees, Supplemental Retirement and Savings Plan for Non-Salaried Employees, Supplemental Retirement and Savings Plan for Salaried and Non-Salaried Employees, Employee Stock Ownership Plan, Stock Option and Stock Appreciation Rights Plan, Outside Directors Deferred Stock Unit Plan and Restricted Stock Plan (collectively, the "SBC Stock Plans"). Each of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the each of SBC's Significant Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been is duly authorized, validly issued, fully paid and nonassessablenonassessable and owned by SBC or a direct or indirect wholly-owned subsidiary of SBC, free and clear of any lien, pledge, security interest, claim or other encumbrance. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii)above, there are outstanding: (1) no shares of Company Capital Stock, Voting Debt preemptive 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 Company Capital Stockoutstanding rights, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptionsconversion rights, calls, rights (including preemptive and stock appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company is a party or by which it is bound in any case obligating the Company or any Subsidiary of the Company to issueredemption rights, deliverrepurchase rights, 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts arrangements or other agreements commitments to which the Company issue or any of its Subsidiaries is a party or by which it is bound relating to the voting of sell any shares of capital stock or other equity interest securities of the Company SBC or any of its Subsidiaries. No Subsidiary of the Company owns any shares of Company Common Stock 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 securities of SBC or any of its Significant Subsidiaries, and no securities or obligation evidencing such rights are authorized, issued or outstanding. SBC does not have outstanding any bonds, debentures, notes or other shares obligations the holders of Company Capital Stockwhich have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of SBC on any matter.
(diii) As The authorized capital stock of the date Merger Sub consists of this Agreement1,000 shares of Common Stock, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letterpar value $1.00 per share, all of which are validly issued and outstanding. All of the issued and outstanding capital stock of Merger Sub is, and at the Effective Time will be, owned by SBC, and there are (i) no other shares of capital stock or other equity ownership interests voting securities of each Subsidiary Merger Sub, (ii) no securities of the Company are owned by the Company, directly Merger Sub convertible into or indirectly, all such exchangeable for shares of capital stock or equity ownership interests are set forth in Schedule 4.2 other voting securities of the Company Disclosure LetterMerger Sub and (iii) no options or other rights to acquire from Merger Sub, and all no obligations of such shares Merger Sub to issue, any capital stock, other voting securities or equity ownership interests are duly authorized securities convertible into or exchangeable for capital stock or other voting securities of Merger Sub. Merger Sub has not conducted any business prior to the date hereof and validly issued has no, and are fully paidprior to the Effective Time will have no, nonassessable assets, liabilities or obligations of any nature other than those incident to its formation and free of preemptive rightspursuant to this Agreement and the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Capital Structure. (ai) As of the date of this Agreement, the The authorized capital stock of the Company ----------------- consists of (i) 8,000,000 shares of Company Common Stock 100,000,000 Shares and (ii) 75,000,000 10,000,000 shares of preferred stock, $1.00 par value $0.001 per share (“Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”)share. At the close of business on November 612, 2020 1997: (the “Measurement Date”): (Ai) 4,305,119 shares of Company Common Stock 13,482,249 Shares were issued and outstanding, (ii) 2,258,887 Shares were reserved for issuance pursuant to the Stock Option Plan and those certain option agreements with respect to HFS Holdings, Inc. (which option agreements are described in Section 4.1(b) of the Disclosure Schedule), (iii) no Shares were held by the Company in its treasury and (Biv) no shares of Company Preferred Stock preferred stock were issued and outstanding;
(b) As of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of the close of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, authorized and validly issued, and are fully paid and nonassessablenonassessable and not subject to preemptive or similar rights. Except as set forth in this Section 4.2No bonds debentures, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants notes or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2) no securities indebtedness of the Company or any Subsidiary of the Company having the right to vote (or convertible into into, or exchangeable or exercisable for shares for, securities having the right to vote) on any matters on which the stockholders of Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company is a party may vote are issued or outstanding. Except as disclosed in Section 4.1(b) of the Disclosure Schedule, all the outstanding shares of capital stock of each Subsidiary Corporation have been validly issued and are fully paid and nonassessable and are owned by which it is bound in any case obligating the Company, by one or more wholly owned Subsidiaries of the Company or by the Company and one or more such wholly owned Subsidiaries, free and clear of Liens. Except as set forth above or in Section 4.1(b) of the Disclosure Schedule, and except for this Agreement, neither the Company nor any Subsidiary of the Company to issuehas or, deliverat or after the Effective Time will have, sellany outstanding option, purchasewarrant, redeem or acquirecall, or cause to be issued, delivered, sold, purchased, redeemed or acquired, additional shares of Company Capital Stock or any Voting Debt subscription or other voting securities of the Companyright, agreement or obligating commitment which either (i) obligates the Company or any such Subsidiary to issue, sell or transfer, repurchase, redeem or otherwise acquire or vote any shares of the capital stock of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Agreement, there are not any stockholder agreements, voting trusts or other agreements to which the Company or any of its Subsidiaries is a party or by which it is bound relating to the voting of any shares of capital stock or other equity interest interests, as applicable, of such Subsidiary, (ii) restricts the voting, disposition or transfer of shares of capital stock of the Company, or the capital stock or other equity interests of any Subsidiary of the Company. There are no outstanding stock appreciation rights or similar derivative securities or rights of the Company or any of its Subsidiaries. No Subsidiary The Company has made available to Parent complete and correct copies of the Company owns any shares Stock Option Plan and all forms of Company Common Options issued pursuant to the Stock or any other shares Option Plan, including all amendments thereto. Section 4.1(b) of Company Capital Stockthe Disclosure Schedule includes a complete and correct list setting forth as of the date hereof, (i) the number of Options outstanding, (ii) the dates on which such Options were granted and (iii) the exercise price of each outstanding Option.
(dii) As Set forth in Section 4.1(b) of the date Disclosure Schedule is a true, complete and correct list of this Agreement, neither all joint ventures in which the Company nor or any of its Subsidiaries has any an equity interest (i) interests "Joint Ventures"). Such Section identifies the nature and percentage ownership interest in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of such entities owned by the Company Disclosure Letter.
(e) or its Subsidiary, as the case may be. Except as set forth in Schedule 4.2 Section 4.1(b) of the Disclosure Schedule, no such Joint Venture is indebted to the Company Disclosure Letteror any Subsidiary in an amount in excess of $50,000 (or in excess of $2,500,000 in the aggregate for all Joint Ventures). The execution and delivery of this Agreement do not, all and the consummation of the issued transactions contemplated by this Agreement and outstanding shares compliance with the provisions hereof will not, conflict with, result in a breach of capital stock or other equity ownership interests default (with or without notice or lapse of each Subsidiary time, or both) under, or give rise to a right of first refusal, termination, cancellation or acceleration of any obligation (including to pay any sum of money) or loss of benefit under any joint venture agreement, except to the extent any of the foregoing would not have, singly or in the aggregate, a Company are owned by Material Adverse Effect. In addition, the Company, directly or indirectlyindirectly through a Subsidiary, all such shares or beneficially owns a 3.37% equity ownership interests are set forth interest in Schedule 4.2 Capital Properties Limited Partnership, a limited partnership formed under the laws of the Company Disclosure Letter, and all Province of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightsOntario ("CPLP").
Appears in 1 contract
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 shares of Company Common Stock 750,000,000 Shares and (ii) 75,000,000 1,000,000 shares of preferred stock, par value $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 November 6February 7, 2020 2018 (the “Measurement Date”): ), (Ai) 4,305,119 shares of Company Common Stock 163,926,058 Shares were issued and outstanding, (ii) 3,566,076 Shares were subject to Company Stock Options, (iii) 568,462 Shares were subject to Company RSUs, (iv) 691,531 Shares were subject to Company PSUs, (v) 65,700 Shares were subject to Director RSUs, (vi) zero (0) Shares were held by the Company in its treasury, (vii) 12,380,638 additional Shares were reserved and available for issuance pursuant to the Company Stock Plan, (viii) 575,425 additional Shares were reserved and available for issuance pursuant to the Director Stock Plan, (ix) 10,000,000 additional Shares were reserved and available for issuance pursuant to the Company 401(k) Plan and (Bx) no zero (0) shares of Company Preferred Stock were issued and outstanding;. Except as set forth above, at the close of business on the Measurement Date, no shares of capital stock of the Company were issued, reserved for issuance or outstanding. From the Measurement Date to the date of this Agreement, there have been no issuances by the Company of shares of capital stock of the Company or options, warrants, convertible or exchangeable securities, stock-based performance units or other rights to acquire shares of capital stock of the Company or other rights that give the holder thereof any economic interest of a nature accruing to the holders of Company Common Stock, other than the rights under the Company Stock Plan and the Director Stock Plan and any related award agreements.
(b) All outstanding Shares, and all such shares that may be issued prior to the Effective Time when issued, (i) are or will be, as applicable, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights and (ii) issued in compliance in all material respects with applicable securities Laws and other applicable Law and all requirements set forth in applicable Contracts.
(c) As of the date of this Agreement, there are 58,775 shares no bonds, debentures, notes or other Indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of Company Common Stock subject to outstanding may vote (“Voting Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU AwardsDebt”).
(cd) All outstanding shares of Company Common Stock have been duly authorized and are validly issued, fully paid and non-assessable and are not subject to preemptive rights. All outstanding shares of Company Common Stock have been issued and granted in compliance in all material respects with Except (i) applicable securities Laws and other applicable Law as set forth above and (ii) all requirements set forth in applicable Contracts. As for the Top-Up Option, as of the close date of business on the Measurement Date, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock of the Company or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exercise, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptionsconvertible or exchangeable securities, calls, stock-based performance units or other rights (including preemptive and appreciation rights), commitments or agreements Contracts to which the Company or any Subsidiary of the Company is a party or by which it the Company is bound in any case (i) obligating the Company or any Subsidiary of the Company to issue, deliver, deliver or sell, purchase, redeem or acquire, or cause to be issued, delivered, delivered or sold, purchased, redeemed or acquired, additional shares of Company Capital Stock capital stock of, or any Voting Debt security convertible or other voting securities exchangeable for any shares of the Companycapital stock of, or obligating the Company or any Subsidiary of Voting Company Debt, (ii) obligating the Company to grantissue, extend grant or enter into into, as applicable, any such option, warrant, subscriptionsecurity, callunit, right, commitment right or agreement. Other than Contract or (iii) that give any person the Transaction Support Agreement, there are not right to receive any stockholder agreements, voting trusts or other agreements to which the Company or economic interest of any of its Subsidiaries is a party or by which it is bound relating nature accruing to the voting of any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary of the Company owns any shares holders of Company Common Stock or any other shares of Company Capital Stock.
(d) . As of the date of this Agreement, neither there are no outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any shares of capital stock of the Company or options, warrants, convertible or exchangeable securities, stock-based performance units or other rights to acquire shares of capital stock of the Company, except for (A) the withholding of Shares to satisfy Tax obligations with respect to awards granted pursuant to the Company Stock Plan and (B) in connection with Company Stock Options, Company RSUs, Company PSUs and Director RSUs upon settlement or forfeiture of awards or payment of the exercise price of Company Stock Options. Neither the Company nor any of its Subsidiaries has Company Subsidiary is a party to any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in agreement pursuant to which any Person is entitled to elect, designate or (ii) obligations, whether contingent or otherwise, to consummate nominate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 director of the Company Disclosure Letteror any of the Company Subsidiaries.
(e) Except as set forth All Company Stock Options, Company RSUs, Company PSUs and Director RSUs are evidenced by written award agreements, in Schedule 4.2 each case substantially in the forms that have been made available to Parent, except that such agreements may differ from such forms with respect to the number of Company Stock Options, Company RSUs, Company PSUs and Director RSUs or Shares covered thereby, the Company Disclosure Letterexercise price (if applicable), all of the issued vesting schedule, the expiration date applicable thereto and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightssimilar terms.
Appears in 1 contract
Sources: Merger Agreement (CSRA Inc.)
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 10,000,000 shares of Company Common Stock and (ii) 75,000,000 1,000,000 shares of preferred stock, par value $0.001 .01 per share (“"Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”"). At the close of business on November 6May 12, 2020 1998, (the “Measurement Date”): (Ai)(A) 4,305,119 4,647,809 shares of Company Common Stock were issued and outstanding, all of which were validly issued, fully paid and nonassessable and (B) no shares of Company Junior Participating Preferred Stock were issued and outstanding;
(b) As , all of the date of this Agreement, there are 58,775 shares of Company Common Stock subject to outstanding Company Stock Awards and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awards.
(c) All outstanding shares of Company Common Stock have been duly authorized and are which were validly issued, fully paid and non-assessable nonassessable and are not subject to preemptive rights. All outstanding (ii)(A) 58,000 shares of Company Common Stock have been issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law were reserved for issuance upon the exercise of warrants and (iiB) all requirements 500,350 shares of Company Common Stock were reserved for issuance upon the exercise of outstanding stock options ("Company Stock Options") granted pursuant to the Davel Communications Group, Inc. Director Stock Option Plan and the Davel Communications Group, Inc. Stock Option Plan. Except as set forth in applicable Contracts. As of above, at the close of business on May 14, 1998, and except pursuant to the Measurement DateRights Agreement, dated April 22, 1998, by and between the Company and ChaseMellon Shareholder Services, L.L.C. (the "Rights Agreement"), no shares of capital stock or other voting securities of the Company were issued, reserved for issuance or outstanding, and, since such date, no shares of capital stock or other voting securities or options in respect thereof have been issued except upon the exercise of any Company Stock Options. Except as set forth in this Section 4.2 4.3 and except for Company Stock Options granted in the Transaction Support Agreementordinary course of business to employees and directors of the Company or its Subsidiaries and covering not in excess of an aggregate of 350,000 shares of Company Common Stock for all such grants during the period from the date of this Agreement through the Closing Date, there are no outstanding not now, and at the Closing Date there will not be, any options, warrants warrants, calls, rights, commitments, agreements, arrangements or other rights undertakings of any kind to subscribe for, purchase or acquire from which the Company or any of its Subsidiaries is a party or by which any of them is bound relating to the issued or unissued capital stock of the Company or securities convertible into any of its Subsidiaries, or exchangeable or exercisable for capital stock of obligating the Company (and the exerciseor any of its Subsidiaries to issue, conversiontransfer, purchase, exchange grant or other similar price thereof). All outstanding sell any shares of capital stock or other equity interests of the Subsidiaries of in, the Company or any of its Subsidiaries or obligating the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, commitment, agreement, arrangement or understanding. All shares of Company Common Stock subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are owned by the Companyissuable, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been will be duly authorized, validly issued, fully paid and nonassessable. Except as set forth in this Section 4.2, and except for changes since the Measurement Date resulting from the exercise of stock options outstanding at such date, or stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company 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 Company Capital Stock, Voting Debt or other voting securities of the Company; and (3) no options, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company 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 other voting securities of the Company, or obligating the Company or any Subsidiary of the Company to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreement. Other than the Transaction Support Rights Agreement, there are not any stockholder agreements, voting trusts or other agreements to which outstanding contractual obligations of the Company or any of its Subsidiaries is a party to repurchase, redeem or by which it is bound relating to the voting of otherwise acquire any shares of capital stock or other equity interest of the Company or any of its Subsidiaries. No Subsidiary , or make any material investment (in the form of a loan, capital contribution or otherwise) in, any of the Company owns any shares of Company Common Stock Company's Subsidiaries or any other shares of Company Capital Stockperson.
(d) As of the date of this Agreement, neither the Company nor any of its Subsidiaries has any (i) interests in a material joint venture or, directly or indirectly, equity securities or other similar equity interests in any Person or (ii) obligations, whether contingent or otherwise, to consummate any material additional investment in any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 of the Company Disclosure Letter.
(e) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each Subsidiary of the Company are owned by the Company, directly or indirectly, all such shares or equity ownership interests are set forth in Schedule 4.2 of the Company Disclosure Letter, and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Appears in 1 contract
Capital Structure. (a) As of the date of this Agreement, the The authorized capital stock of the Company consists of (i) 8,000,000 shares of Company Common Stock 200,000,000 Shares and (ii) 75,000,000 10,000,000 shares of preferred stock, par value $0.001 per share 0.0001 (the “Company Preferred Stock” and, together with the Company Common StockShares, the “Company Capital Stock”). At the close of business on November 6August 31, 2020 2022, (the “Measurement Date”): (Ai) 4,305,119 shares of Company Common Stock 42,569,515 Shares were issued and outstanding, and (Bii) no shares of Company Preferred Stock were issued and outstanding;
, (biii) As no Shares were held by the Company in its treasury, (iv) 2,425,752 Shares were reserved and available for issuance pursuant to the Company Stock Plans, including (A) 1,263,317 Shares issuable upon vesting or settlement of outstanding Company RSUs (whether or not vested and whether or not granted under the Company Stock Plans), and (B) 4,082,608 Shares issuable upon exercise of outstanding Company Options (whether or not vested and whether or not granted under the Company Stock Plans), (v) 999,255 Shares were reserved for issuance pursuant to the ESPP, (vi) 154,240 Shares issuable upon exercise of outstanding warrants, and (vii) no Shares are estimated to be subject to outstanding purchase rights under the ESPP (assuming the closing price per Share as reported on the purchase date for the Current Purchase Period is equal to the Company Share Value and employee contributions continue until such purchase date at the levels in place as of the date immediately preceding the date of this Agreement). Except as set forth in this Section 3.3(a), at the close of business on August 31, 2022, no shares of capital stock or voting securities of, or other equity interests in, the Company were issued, reserved for issuance or outstanding. From the close of business on August 31, 2022 to the date of this Agreement, there have been no issuances by the Company of shares of capital stock or voting securities of, or other equity interests in, the Company, other than the issuance of Shares upon the vesting or settlement of Company RSUs and the issuance of Shares upon the exercise of Company Options, in each case, outstanding at the close of business on August 31, 2022 and in accordance with their terms in effect at such time. The Company has delivered or made available to Parent copies of all Company Stock Plans covering the Company Options and Company RSUs outstanding as of the date of this Agreement, there are 58,775 shares the forms of all stock option agreements evidencing such Company Common Stock subject Options, and the restricted stock unit agreements evidencing such Company RSUs. The Company has delivered or made available to outstanding Company Stock Awards Parent copies of the ESPP and 12,182 shares of Company Common Stock subject to outstanding Company RSU Awardsapplicable offering documents.
(cb) All outstanding shares of Company Common Capital Stock have been duly authorized and are validly issuedare, fully paid and non-assessable and are not subject to preemptive rights. All outstanding and, at the time of issuance, all such shares of Company Common Stock have been that may be issued and granted in compliance in all material respects with (i) applicable securities Laws and other applicable Law and (ii) all requirements set forth in applicable Contracts. As of upon the close of business on the Measurement Dateexercise, except as set forth in this Section 4.2 and in the Transaction Support Agreement, there are no outstanding options, warrants settlement or other rights to subscribe for, purchase or acquire from the Company or any of its Subsidiaries any capital stock vesting of the Company Options or securities convertible into or exchangeable or exercisable for capital stock of the Company (and the exerciseRSUs will be, conversion, purchase, exchange or other similar price thereof). All outstanding shares of capital stock or other equity interests of the Subsidiaries of the Company are owned by the Company, or a direct or indirect wholly owned Subsidiary of the Company, are free and clear of all Encumbrances, other than Permitted Encumbrances, and have been duly authorized, validly issued, fully paid and nonassessablenonassessable and not subject to, or issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the DGCL, the Company Charter, the Company Bylaws, any Contract to which the Company is a party or otherwise bound, or by applicable Law. Except as set forth above in this Section 4.23.3 there are no issued, reserved for issuance or outstanding, and except for changes since there are no outstanding obligations of the Measurement Date resulting from the exercise of stock options outstanding at such dateCompany or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, (x) any capital stock grants or other awards granted in accordance with Section 6.1(b)(ii), there are outstanding: (1) no shares of Company Capital Stock, Voting Debt or other voting securities of the Company; (2) no Company or any Company Subsidiary or any securities of the Company or any Company Subsidiary of the Company convertible into or exchangeable or exercisable for shares of Company Capital Stockcapital stock or voting securities of, Voting Debt or other voting securities of the Company; and (3) no optionsequity interests in, warrants, subscriptions, calls, rights (including preemptive and appreciation rights), commitments or agreements to which the Company or any Subsidiary of the Company is a party Subsidiary, (y) any warrants, calls, options or by which it is bound in any case obligating other rights to acquire from the Company or any Subsidiary Company Subsidiary, or any other obligation of the Company or any Company Subsidiary to issue, deliver, deliver or sell, purchase, redeem or acquire, or cause to be issued, delivered, delivered or sold, purchasedany capital stock or voting securities of, redeemed or acquiredother equity interests in, additional the Company or any Company Subsidiary or (z) 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 the capital stock of the Company or any shares of capital stock of any Company Capital Stock or any Voting Debt or other voting securities Subsidiary, the value of the Company, any Company Subsidiary or obligating 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 to grant, extend or enter into any such option, warrant, subscription, call, right, commitment or agreementCompany Subsidiary. Other than (1) the Transaction Support Agreementwithholding of Shares to satisfy Tax obligations with respect to awards granted pursuant to the Company Stock Plans and (2) the acquisition by the Company of awards granted pursuant to the Company Stock Plans in connection with the forfeiture of such awards, there are not any stockholder agreements, voting trusts or other agreements to which outstanding obligations of the Company or any of its the Company Subsidiaries is a party to repurchase, redeem or by which it is bound relating to the voting of otherwise acquire any shares of capital stock or voting securities or other equity interest interests of the Company or any Company Subsidiary or any securities, interests, warrants, calls, options or other rights referred to in clause (x), (y) or (z) of its Subsidiariesthe immediately preceding sentence. No Subsidiary There are no bonds, debentures, notes or other Indebtedness of the Company owns having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any shares of Company Common Stock or any other shares of Company Capital Stock.
(d) As matters on which stockholders of the date of Company may vote. Other than as contemplated by this Agreement, neither the Company nor any of its the Company Subsidiaries has nor, to the Knowledge of the Company, any of the Company’s stockholders is a party to (i) interests in a material joint venture orany voting agreement with respect to the voting of any capital stock or voting securities of, directly or indirectly, equity securities or other similar equity interests in any Person in, the Company or (ii) obligations, whether contingent or otherwise, any agreement pursuant to consummate any material additional investment in which any Person other than its Subsidiaries and its joint ventures listed on Schedule 4.2 is entitled to elect, designate or nominate any director of the Company Disclosure Letteror any of the Company Subsidiaries.
(ec) Except as set forth in Schedule 4.2 of the Company Disclosure Letter, all of the issued and outstanding shares of capital stock or other equity ownership interests of each No Subsidiary of the Company are owned by owns any Shares.
(d) Neither the Company, directly Company nor any Company Subsidiary or indirectly, all such shares or equity ownership interests are set forth associates (as defined in Schedule 4.2 Section 203 of the Company Disclosure LetterDGCL) owns, and all or has owned at any time within the past three (3) years, any shares of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rightsParent Common Stock.
Appears in 1 contract
Sources: Merger Agreement (Metacrine, Inc.)