Capitalization and Ownership. (a) The authorized capital stock of the Company consists of (i) 2,500,000 shares of Common Stock, of which 1,893,854 shares are issued and outstanding and 380,977 shares are held by the Company as treasury stock, (ii) 200,000 shares of preferred stock of the Company, par value $0.01 per share (“Preferred Stock”): (a) 100,000 shares of Preferred Stock has been designated Series A Preferred Stock, of which 80,263 shares are issued and outstanding and 718 shares are held by the Company as treasury stock, (b) 36,000 shares of Preferred Stock has been designated Senior Preferred Stock, of which 17,850 shares are issued and outstanding, and (c) 15,000 shares of Preferred Stock has been designated Senior Series A Preferred Stock, of which 7,000 shares are issued and outstanding. Section 3.4(a) of the Company Disclosure Schedule sets forth, the amount of Company Stock held by each Shareholder, together with the domicile address of such Shareholder. The Company has no other capital stock authorized, issued or outstanding. All of the outstanding shares of the Company Stock are duly authorized, validly issued, fully paid and non-assessable and have been issued in accordance with the Company Charter Documents. The outstanding shares of Company Stock were not issued in violation of, and are not subject to, any preemptive rights and are free from any restrictions on transfer, except for restrictions imposed by Federal or state securities or “blue sky” Laws. None of the outstanding shares of the Company’s capital stock was issued in violation of the Securities Act of 1933, as amended, or applicable state securities Laws. There are no bonds, debentures, notes or other Indebtedness of any type whatsoever 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 any shareholders of the Company may vote. Except as set forth in Section 3.4(a) of the Company Disclosure Schedule, except for the Equity Awards granted under the Company Option Plans and except for rights granted to Parent under this Agreement, there are no outstanding options, warrants, calls, demands, stock appreciation rights, Contracts or other rights of any nature to purchase, obtain or acquire or otherwise relating to, or any outstanding securities or obligations convertible into or exchangeable for, or any voting agreements with respect to, any shares of capital stock of the Company or any other securities of the Company and the Company is not obligated, pursuant to any securities, options, warrants, calls, demands, Contracts or other rights of any nature or otherwise, now or in the future, contingently or otherwise, to issue, deliver, sell, purchase or redeem any capital stock of the Company, any other securities of the Company or any interest in or assets of the Company to or from any Person or to issue, deliver, sell, purchase or redeem any stock appreciation rights or other Contracts of the Company relating to any capital stock or other securities of the Company to or from any Person. Except for the Company Option Plans, the Company has never adopted, sponsored or maintained any stock option plan or any other plan or agreement providing for equity compensation to any Person. (b) The authorized and outstanding capital stock of the Subsidiaries of the Company is set forth in Section 3.4(b) of the Company Disclosure Schedule. No Subsidiary has other capital stock authorized, issued or outstanding. All of the outstanding shares of capital stock of the Subsidiaries of the Company are duly authorized, validly issued, fully paid and non-assessable and have been issued in accordance with the Subsidiary Organizational Documents. The outstanding shares of capital stock of each Subsidiary was not issued in violation of, and are not subject to, any preemptive rights and are free from any restrictions on transfer, except for restrictions imposed by Federal or state securities or “blue sky” Laws. None of the outstanding shares of capital stock of any Subsidiaries was issued in violation of the Securities Act of 1933, as amended, or applicable state securities Laws. There are no bonds, debentures, notes or other indebtedness of any type whatsoever of the Subsidiaries 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 any shareholders of any Subsidiary of the Company may vote. Except as set forth in Section 3.4(b) of the Company Disclosure Schedule, there are no outstanding options, warrants, calls, demands, stock appreciation rights, Contracts or other rights of any nature to purchase, obtain or acquire or otherwise relating to, or any outstanding securities or obligations convertible into or exchangeable for, or any voting agreements with respect to, any shares of capital stock of the Subsidiaries of the Company or any other securities of the Subsidiaries of the Company and none of the Subsidiaries of the Company is obligated, pursuant to any securities, options, warrants, calls, demands, Contracts or other rights of any nature or otherwise, now or in the future, contingently or otherwise, to issue, deliver, sell, purchase or redeem any capital stock of the Subsidiaries of the Company, any other securities of the Subsidiaries of the Company or any interest in or assets of the Subsidiaries of the Company to or from any Person or to issue, deliver, sell, purchase or redeem any stock appreciation rights or other Contracts of the Subsidiaries of the Company relating to any capital stock or other securities of the Subsidiaries of the Company to or from any Person.
Appears in 1 contract
Sources: Merger Agreement (Air Methods Corp)
Capitalization and Ownership. (a) The authorized capital stock of the Company consists of of: (i) 2,500,000 100,000,000 shares of Company Common Stock, of which 1,893,854 20,293,732 shares are have been issued and are outstanding and 380,977 shares are held by as of the Company as treasury stockdate of this Agreement, (ii) 200,000 10,000,000 shares of preferred stock of the Company, par value $0.01 per share (“Preferred Stock”): (a) 100,000 shares of Preferred Stock has been designated Series A Company Preferred Stock, of which 80,263 no shares are issued and outstanding and 718 (iii) 109,000 shares of Company Common Stock are held by Company in its treasury. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are no shares of Company Common Stock held by any of the other Acquired Companies. None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right created by a Company Contract, none of the outstanding shares of Company Common Stock is subject to any right of first refusal under a Company Contract, and except as set forth on Schedule 2.3(b) of the Company as treasury stockDisclosure Schedule or in the Voting Agreements, there is no Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Company Common Stock. None of the Acquired Companies is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) 36,000 As of the date of this Agreement, (i) 971,667 shares of Preferred Company Common Stock has been designated Senior Preferred Stockare reserved for future issuance pursuant to stock options (each, a "Company Option") and restricted stock awards, of which 17,850 shares are issued and outstanding, and (c) 15,000 736,911 shares of Preferred Company Common Stock has are subject to Company Stock Options that have been designated Senior Series A Preferred Stock, of which 7,000 shares granted and are issued and outstandingoutstanding under the Company Stock Option Plan. Section 3.4(a2.3(b) of the Company Disclosure Schedule sets forth, forth the amount of following information with respect to each Company Stock held by each Shareholder, together with the domicile address of such Shareholder. The Company has no other capital stock authorized, issued or outstanding. All Option outstanding as of the outstanding shares date of this Agreement: (i) the name of the Company Stock are duly authorizedoptionee, validly issued, fully paid and non-assessable and have been issued in accordance with (ii) the Company Charter Documents. The outstanding number of shares of Company Common Stock were not issued in violation ofsubject to such Company Option, (iii) the exercise price of such Company Option, (iv) the date on which such Company Option was granted, (v) the applicable vesting schedules, and are not subject to, any preemptive rights the extent to which such Company Option is vested and are free from any restrictions on transfer, except for restrictions imposed by Federal or state securities or “blue sky” Laws. None exercisable as of the outstanding shares date of this Agreement, and (vi) the Company’s capital stock was issued in violation of the Securities Act of 1933, as amended, or applicable state securities Laws. There are no bonds, debentures, notes or other Indebtedness of any type whatsoever of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters date on which any shareholders such Company Option expires. Company has made available to Parent accurate and complete copies of all stock option plans pursuant to which Company has ever granted stock options, and the Company may vote. forms of all stock option agreements evidencing such options.
(c) Except as set forth in Section 3.4(a2.3(b) of the Company Disclosure Schedule, except for the Equity Awards granted under the there is no: (i) Company Option Plans and except for rights granted to Parent under this Agreement, there are no outstanding options, warrants, calls, demands, stock appreciation rights, Contracts or other rights Contract in respect of any nature outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to purchase, obtain or acquire or otherwise relating to, or any outstanding securities or obligations convertible into or exchangeable for, or any voting agreements with respect to, any shares of capital stock of the Company or any other securities of the Company and the Company is not obligated, pursuant to any securities, options, warrants, calls, demands, Contracts or other rights of any nature or otherwise, now or in the future, contingently or otherwise, to issue, deliver, sell, purchase or redeem any capital stock of the Company, any other securities of the Company or any interest in or assets of the Company to or from any Person or to issue, deliver, sell, purchase or redeem any stock appreciation rights or other Contracts of the Company relating to any capital stock or other securities of Company, (ii) Company Contract in respect of any outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Company, or (iii) stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Company is or may become obligated to sell or from otherwise issue any Person. Except for the Company Option Plans, the Company has never adopted, sponsored or maintained any shares of its capital stock option plan or any other plan or agreement providing for equity compensation to any Personsecurities.
(bd) The authorized All outstanding shares of Company Common Stock, all outstanding Company Options and all outstanding shares of capital stock or membership interests, as applicable, of the Subsidiaries each Subsidiary of the Company is have been issued and granted in compliance with (i) all applicable securities Laws and other applicable Law and (ii) all requirements set forth in Section 3.4(bapplicable Contracts, except, in each case, where non-compliance does not have, and is not reasonably likely to have, a Company Material Adverse Effect.
(e) of the Company Disclosure Schedule. No Subsidiary has other capital stock authorized, issued or outstanding. All of the outstanding shares of capital stock or membership interests, as applicable, of the Subsidiaries companies identified in Section 2.1(a) of the Company are Disclosure Schedule have been duly authorized, validly issued, and, with respect to shares of capital stock, are fully paid and non-assessable and have been issued in accordance with the Subsidiary Organizational Documents. The outstanding shares of capital stock of each Subsidiary was not issued in violation ofnonassessable, and are not subject toowned beneficially and of record by Company, any preemptive rights free and are free from any restrictions on transfer, except for restrictions imposed by Federal or state securities or “blue sky” Laws. None of the outstanding shares of capital stock clear of any Subsidiaries was issued in violation of the Securities Act of 1933, as amended, or applicable state securities Laws. There are no bonds, debentures, notes or other indebtedness of any type whatsoever of the Subsidiaries 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 any shareholders of any Subsidiary of the Company may vote. Except as set forth in Section 3.4(b) of the Company Disclosure Schedule, there are no outstanding options, warrants, calls, demands, stock appreciation rights, Contracts or other rights of any nature to purchase, obtain or acquire or otherwise relating to, or any outstanding securities or obligations convertible into or exchangeable for, or any voting agreements with respect to, any shares of capital stock of the Subsidiaries of the Company or any other securities of the Subsidiaries of the Company and none of the Subsidiaries of the Company is obligated, pursuant to any securities, options, warrants, calls, demands, Contracts or other rights of any nature or otherwise, now or in the future, contingently or otherwise, to issue, deliver, sell, purchase or redeem any capital stock of the Subsidiaries of the Company, any other securities of the Subsidiaries of the Company or any interest in or assets of the Subsidiaries of the Company to or from any Person or to issue, deliver, sell, purchase or redeem any stock appreciation rights or other Contracts of the Subsidiaries of the Company relating to any capital stock or other securities of the Subsidiaries of the Company to or from any PersonEncumbrances.
Appears in 1 contract
Capitalization and Ownership. (a) The authorized capital stock of the Company consists solely of (i) 2,500,000 11,000,000 shares of Company Common Stock, of which 1,893,854 6,070,400 shares are issued and outstanding and 380,977 shares are held by the Company as treasury stock, (ii) 200,000 4,000 shares of preferred stock stock, of the Company, par value $0.01 per share (“Preferred Stock”): (a) 100,000 which 2,000 shares of Preferred Stock has been are designated Series A Preferred Stock, 600 shares are designated Series B Preferred Stock, and 1,400 shares are not designated. Of such authorized shares of which 80,263 preferred stock, 2,000 shares of Company Series A Preferred Stock are issued and outstanding and 718 shares are held by the Company as treasury stock, (b) 36,000 125 shares of Series B Preferred Stock has been designated Senior Preferred Stock, of which 17,850 shares are issued and outstanding, and (c) 15,000 shares of Preferred Stock has been designated Senior Series A Preferred Stock, of which 7,000 shares are issued and outstanding. Section 3.4(a) Each one share of the Company Disclosure Schedule sets forth, the amount Series A Preferred Stock and Series B Preferred Stock is convertible into 1,000 shares of Company Stock held by each ShareholderCommon Stock, together with subject to certain adjustments as set forth in the domicile address Company’s Second Amended and Restated Certificate of such Shareholder. The Company has no other capital stock authorized, issued or outstandingIncorporation. All of the issued and outstanding shares of the Company Capital Stock are have been duly authorized, authorized and validly issued, are fully paid and non-assessable nonassessable, and have been issued in accordance with were offered, issued, sold and delivered by the Company Charter Documents. The outstanding shares of Company Stock were not issued in violation ofcompliance with all applicable Laws including, and are not subject towithout limitation, any preemptive rights and are free from any restrictions on transfer, except for restrictions imposed by Federal or state securities or “blue sky” Securities Laws. None of the outstanding such shares of the Company’s capital stock was were issued in violation of the Securities Act of 1933, as amended, or applicable state securities Laws. There are no bonds, debentures, notes or other Indebtedness preemptive rights of any type whatsoever of the Company having the right to vote (past or convertible into, or exchangeable for, securities having the right to vote) on any matters on which any shareholders of the Company may votepresent stockholder. Except as set forth in Section 3.4(a) Schedule 4.3, no Right of any kind exists which obligates the Company Disclosure Schedule, except for the Equity Awards granted under the Company Option Plans and except for rights granted to Parent under this Agreementissue any of its capital stock.
(b) Except as set forth in Schedule 4.3, there are no (i) outstanding subscriptions, options, calls, warrants, callsconvertible or exchangeable security, demands, stock appreciation rights, Contracts other conversion right or other rights of any nature to purchase, obtain or acquire or otherwise relating tocommitment, or any outstanding securities other Right (whether or obligations convertible into or exchangeable for, or any voting agreements with respect to, not clearly exercisable) to acquire any shares of capital stock of the Company or any other securities of the Company and the Company is not obligated, pursuant to any securities, options, warrants, calls, demands, Contracts or other rights of any nature or otherwise, now or in the future, contingently or otherwise, to issue, deliver, sell, purchase or redeem any capital stock of the Company, any other securities of the Company or any interest in or assets of the Company to or from any Person or to issue, deliver, sell, purchase or redeem any stock appreciation rights or other Contracts of the Company relating to any capital stock or other securities of the Company to or from any Person. Except for the Company Option PlansCompany, the Company has never adopted(ii) outstanding securities, sponsored or maintained any stock option plan or any other plan or agreement providing for equity compensation to any Person.
(b) The authorized and outstanding capital stock of the Subsidiaries of the Company is set forth in Section 3.4(b) of the Company Disclosure Schedule. No Subsidiary has other capital stock authorized, issued or outstanding. All of the outstanding shares of capital stock of the Subsidiaries of the Company are duly authorized, validly issued, fully paid and non-assessable and have been issued in accordance with the Subsidiary Organizational Documents. The outstanding shares of capital stock of each Subsidiary was not issued in violation of, and are not subject to, any preemptive rights and are free from any restrictions on transfer, except for restrictions imposed by Federal or state securities or “blue sky” Laws. None of the outstanding shares of capital stock of any Subsidiaries was issued in violation of the Securities Act of 1933, as amended, or applicable state securities Laws. There are no bonds, debentures, notes or other indebtedness of any type whatsoever of the Subsidiaries 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 any shareholders of any Subsidiary of the Company may vote. Except as set forth in Section 3.4(b) of the Company Disclosure Schedule, there are no outstanding options, warrants, calls, demands, stock appreciation rights, Contracts or other rights of any nature to purchase, obtain or acquire or otherwise relating to, or any outstanding securities instruments or obligations that are or may become convertible into or exchangeable for, or any voting agreements with respect to, any for shares of capital stock of the Subsidiaries of the Company or any other securities of the Subsidiaries of the Company and none of the Subsidiaries of the Company is obligated, pursuant to any securities, options, warrants, calls, demands, Contracts or other rights of any nature or otherwise, now or in the future, contingently or otherwise, to issue, deliver, sell, purchase or redeem any capital stock of the Subsidiaries of the Company, any other securities of the Subsidiaries of the Company or any interest in or assets of the Subsidiaries of the Company to or from any Person or to issue, deliver, sell, purchase or redeem any stock appreciation rights or other Contracts of the Subsidiaries of the Company relating to any capital stock or other securities of the Subsidiaries Company, (iii) Contracts under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or other securities, or (iv) conditions or circumstances that may directly or indirectly give rise to or 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 the Company to capital stock or from any Personother securities of the Company.
Appears in 1 contract
Capitalization and Ownership. (a) The authorized share capital stock of the Company consists is US$105,353.08 divided into 250,000,000 Company Ordinary Shares and 102,853,089 Company Preferred Shares. A total of (i) 2,500,000 shares of Common Stock, of which 1,893,854 shares 15,530,453 Company Ordinary Shares and 100,222,361 Company Preferred Shares are issued and outstanding and 380,977 shares are held by the Company as treasury stock, (ii) 200,000 shares of preferred stock of the Company, par value $0.01 per share (“Preferred Stock”): (a) 100,000 shares date hereof. The numbers of Preferred Stock has been designated Series A Preferred Stock, of which 80,263 shares are issued and outstanding and 718 shares are held by the Company as treasury stock, (b) 36,000 shares of Preferred Stock has been designated Senior Preferred Stock, of which 17,850 shares are issued and outstanding, and (c) 15,000 shares of Preferred Stock has been designated Senior Series A Preferred Stock, of which 7,000 shares are issued and outstanding. Section 3.4(a) of the Company Disclosure Schedule sets forth, the amount of Company Stock Shares held by each ShareholderShareholder as of the date hereof are set forth in Schedule 4.2, together with no Shares are issued as of the domicile address date hereof that are not set forth in Schedule 4.2 and no such Shares shall be issued as of such Shareholder. The the Closing Date that are not set forth in Schedule 4.2 except for Company has no other capital stock authorized, Ordinary Shares issued pursuant to the exercise of Company Share Options or outstandingCompany Warrants listed in Schedule 4.2 or pursuant to the conversion of Company Preferred Shares in issue on the date hereof. All of the outstanding shares of the Company Stock are duly authorized, validly issued, fully paid and non-assessable and Shares have been duly authorized and validly issued in accordance with the Company Charter Documents. The outstanding shares of Company Stock and are fully paid, were not issued in violation ofof the terms of any Contract binding upon the Company, and are not subject to, any preemptive rights were issued in compliance with all applicable Charter Documents of the Company and are free from any restrictions on transfer, except for restrictions imposed by Federal or in material compliance all applicable federal and state securities or “blue sky” Laws. None of the outstanding shares of the Company’s capital stock was issued in violation of the Securities Act of 1933, as amended, or applicable state securities LawsLaws and regulations. There are no bonds, debentures, notes undeclared or other Indebtedness of accrued but unpaid dividends with respect to any type whatsoever 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 any shareholders of the Company may voteShares. Except as set forth in Section 3.4(a) of the Company Disclosure Schedule, except for the Equity Awards granted under the Company Option Plans and except for rights granted to Parent under this Agreementon Schedule 4.2, there are no outstanding optionspreemptive rights with respect to the issuance of the Shares. The Company has complied with all preemptive rights associated with the Shares. Except as set forth on Schedule 4.2, warrantsor pursuant to the Company Share Option Plan, callsCompany Options, demandsCompany Preferred Shares, Company Warrants, this Agreement, the Irrevocable Undertaking or the Offer Documents, there are: (i) no existing Contracts, stock appreciation rights, Contracts or other rights of any nature to purchase, obtain or acquire or otherwise relating to, or any outstanding securities or obligations convertible into or exchangeable for, or any voting agreements with respect to, any shares of capital stock of the Company or any other securities of the Company and the Company is not obligated, pursuant to any securitiessubscriptions, options, warrants, calls, demands, Contracts commitments or other rights of any nature or otherwise, now or in the future, contingently or otherwise, character to issue, deliver, sell, purchase or redeem any capital stock of otherwise acquire from the Company, or the Company’s Knowledge, any other securities Company shareholder, at any time, or upon the happening of the Company or any interest in or assets of the Company to or from stated event, any Person or to issue, deliver, sell, purchase or redeem any stock appreciation rights or other Contracts of the Company relating to any capital stock Shares or other securities of the Company to Company, whether or from any Person. Except for not presently issued; (ii) no securities of the Company Option Plansthat are convertible into or exchangeable for Shares or other securities of the Company; (iii) no existing Contracts, trusts or powers of attorney with respect to the voting or disposition of the Shares held of record or beneficially by each Shareholder, to which the Company has never adopted, sponsored or maintained any stock option plan an officer or any other plan or agreement providing for equity compensation to any Person.
(b) The authorized and outstanding capital stock of the Subsidiaries director of the Company is set forth in Section 3.4(b) of a party or to which the Company Disclosure Schedule. No Subsidiary has other capital stock authorized, issued or outstanding. All of the outstanding shares of capital stock of the Subsidiaries of the Company are duly authorized, validly issued, fully paid Knowledge; and non-assessable and have been issued in accordance with the Subsidiary Organizational Documents. The outstanding shares of capital stock of each Subsidiary was not issued in violation of, and are not subject to, any preemptive rights and are free from any restrictions on transfer, except for restrictions imposed by Federal or state securities or “blue sky” Laws. None of the outstanding shares of capital stock of any Subsidiaries was issued in violation of the Securities Act of 1933, as amended, or applicable state securities Laws. There are (iv) no bonds, debentures, notes or other indebtedness of any type whatsoever of the Subsidiaries 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 any shareholders of any Subsidiary of the Company may vote. Except as set forth in Section 3.4(b) of the Company Disclosure Schedule, there are no outstanding options, warrants, calls, demandsexisting Contracts, stock appreciation rights, Contracts or other rights of any nature to purchase, obtain or acquire or otherwise relating to, or any outstanding securities or obligations convertible into or exchangeable for, or any voting agreements with respect to, any shares of capital stock of the Subsidiaries of the Company or any other securities of the Subsidiaries of the Company and none of the Subsidiaries of the Company is obligated, pursuant to any securitiessubscriptions, options, warrants, calls, demands, Contracts commitments or other rights of any nature character to purchase or otherwiseotherwise acquire from the Company any such convertible or exchangeable securities. The rules of the Company Share Option Plan permit the granting of Company Share Options over Company Ordinary Shares which when aggregated with the number of Company Ordinary Shares issued pursuant to the exercise of Company Share Options does not exceed 16,130,000. Schedule 4.2 sets forth, now with respect to each outstanding Company Share Option, (i) the identity of the grantee, (ii) the address of such grantee, (iii) the per share exercise price of such Company Share Option, (iv) the number of Company Ordinary Shares issuable upon exercise of such Company Share Option, and (v) the vesting schedule of such Company Share Option, including the extent to which such Company Share Option is vested to date. Schedule 4.2 also sets forth, with respect to each outstanding Company Warrant, (i) the identity of the Warrant holder, (ii) the address of such Warrant holder, (iii) the per share exercise price of such Company Warrant, and (iv) the number of Company Ordinary Shares issuable upon exercise of such Company Warrant. No Subsidiary of the Company owns Shares. Except as described in Schedule 4.2, there are no options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which the Company is a party or by which it is bound obligating the Company to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. The holders of Company Share Options will be given, or will have properly waived, any required notice prior to the Transactions and all such rights will be treated as provided for this Agreement. As a result of the Transactions, including the Compulsory Acquisition, Acquiror will be the sole record and beneficial owner of all outstanding shares in capital of the Company and all rights to acquire or receive shares in the future, contingently or otherwise, to issue, deliver, sell, purchase or redeem any capital stock of the Subsidiaries of the Company, any other securities of whether or not such shares in the Subsidiaries capital of the Company or any interest in or assets of the Subsidiaries of the Company to or from any Person or to issue, deliver, sell, purchase or redeem any stock appreciation rights or other Contracts of the Subsidiaries of the Company relating to any capital stock or other securities of the Subsidiaries of the Company to or from any Personare outstanding.
Appears in 1 contract
Sources: Transaction Agreement (Avocent Corp)
Capitalization and Ownership. (a) The authorized issued share capital stock of the Company consists of (i) 2,500,000 17,132 ordinary shares with a paid up share capital of Common Stock, of which 1,893,854 shares are issued and outstanding and 380,977 shares are held by the Company as treasury stock, (ii) 200,000 shares of preferred stock of the Company, par value $0.01 per share (“Preferred Stock”): (a) 100,000 shares of Preferred Stock has been designated Series A Preferred Stock, of which 80,263 shares are issued and outstanding and 718 shares are held by the Company as treasury stock, (b) 36,000 shares of Preferred Stock has been designated Senior Preferred Stock, of which 17,850 shares are issued and outstanding, and (c) 15,000 shares of Preferred Stock has been designated Senior Series A Preferred Stock, of which 7,000 shares are issued and outstanding. Section 3.4(a) of the Company Disclosure Schedule sets forth, the amount of Company Stock held by each Shareholder, together with the domicile address of such Shareholder. The Company has no other capital stock authorized, issued or outstandingAU$7,157,519.68. All of the outstanding shares Shares are owned legally and, except where a Seller expressly enters into this Agreement as trustee of a trust, beneficially by the Sellers in the amounts and series as listed on Exhibit A, free and clear of any Liens. All of the Company Stock Shares have been duly authorized and are duly authorized, validly issued, fully paid and non-assessable no money is owing in respect of them. The Shares were issued and have been issued granted in accordance compliance with (i) all applicable securities Laws and (ii) the Company’s Organizational Documents and any Contract to which any Seller or the Company Charter Documentsis a party. The outstanding shares of Company Stock were not issued in violation ofThere are not, and are not subject tonor have there ever been, any preemptive rights and are free from any restrictions on transfer, except for restrictions imposed by Federal or state securities or “blue sky” Laws. None rights of first refusal with respect to the issuance of the outstanding shares of Shares. Other than the Company’s capital stock was issued in violation of Shares and the Securities Act of 1933Options set forth on Exhibit A, as amended, or applicable state securities Laws. There are no bonds, debentures, notes or other Indebtedness of any type whatsoever of the Company having does not have outstanding any other Equity Interests.
(b) Other than the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which any shareholders of the Company may vote. Except as set forth in Section 3.4(a) of the Company Disclosure Schedule, except for the Equity Awards granted under the Company Option Plans and except for rights granted to Parent under this AgreementOptions, there are no outstanding options(a) existing Contracts, warrantssubscriptions, phantom equity rights, equity appreciation rights, calls, demandsor commitments to purchase or otherwise acquire from any Seller or the Company at any time, stock appreciation rights, Contracts or other rights upon the happening of any nature to purchasestated event, obtain any Company Securities, whether or acquire not presently issued or otherwise relating tooutstanding, or any outstanding securities or obligations (b) Equity Interests of the Company that are convertible into or exchangeable forfor Company Securities, or any voting agreements with respect to(c) Contracts, any shares of capital stock of the Company or any other securities of the Company and the Company is not obligated, pursuant to any securitiessubscriptions, options, warrants, calls, demands, Contracts calls or other rights of any nature or otherwise, now or in the future, contingently or otherwise, to issue, deliver, sell, purchase or redeem otherwise acquire from the Company any capital stock such convertible or exchangeable securities.
(c) Other than the Organizational Documents of the Company, any there are no (i) voting agreements, voting trusts, proxies, or other securities agreements or understandings with respect to the Shares, or (ii) arrangements or understandings relating to the registration, sale or transfer (including agreements relating to rights of the Company or any interest in or assets of the Company to or from any Person or to issuefirst refusal, deliver, sell, purchase or redeem any stock appreciation “co-sale” rights or other Contracts “drag-along” rights) of the any Company relating to any capital stock or other securities of the Company to or from any Person. Except for the Company Option PlansSecurity.
(d) Other than as set forth on Schedule 5.3, the Company has never adopteddoes not own or control, sponsored directly or maintained indirectly, any stock option plan membership interest, partnership interest, joint venture interest, other equity or ownership interest or any other plan or agreement providing for equity compensation to Capital Stock of any Person.
(b) The authorized and outstanding capital stock of the Subsidiaries of the Company is set forth in Section 3.4(b) of the Company Disclosure Schedule. No Subsidiary has other capital stock authorized, issued or outstanding. All of the outstanding shares of capital stock of the Subsidiaries of the Company are duly authorized, validly issued, fully paid and non-assessable and have been issued in accordance with the Subsidiary Organizational Documents. The outstanding shares of capital stock of each Subsidiary was not issued in violation of, and are not subject to, any preemptive rights and are free from any restrictions on transfer, except for restrictions imposed by Federal or state securities or “blue sky” Laws. None of the outstanding shares of capital stock of any Subsidiaries was issued in violation of the Securities Act of 1933, as amended, or applicable state securities Laws. There are no bonds, debentures, notes or other indebtedness of any type whatsoever of the Subsidiaries 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 any shareholders of any Subsidiary of the Company may vote. Except as set forth in Section 3.4(b) of the Company Disclosure Schedule, there are no outstanding options, warrants, calls, demands, stock appreciation rights, Contracts or other rights of any nature to purchase, obtain or acquire or otherwise relating to, or any outstanding securities or obligations convertible into or exchangeable for, or any voting agreements with respect to, any shares of capital stock of the Subsidiaries of the Company or any other securities of the Subsidiaries of the Company and none of the Subsidiaries of the Company is obligated, pursuant to any securities, options, warrants, calls, demands, Contracts or other rights of any nature or otherwise, now or in the future, contingently or otherwise, to issue, deliver, sell, purchase or redeem any capital stock of the Subsidiaries of the Company, any other securities of the Subsidiaries of the Company or any interest in or assets of the Subsidiaries of the Company to or from any Person or to issue, deliver, sell, purchase or redeem any stock appreciation rights or other Contracts of the Subsidiaries of the Company relating to any capital stock or other securities of the Subsidiaries of the Company to or from any Person.
Appears in 1 contract
Capitalization and Ownership. The Company is authorized to issue 30,000,000 common shares (a) The authorized capital stock of the Company consists of (i) 2,500,000 shares of “Common StockShares”), of which 1,893,854 shares are issued and outstanding and 380,977 shares are held by the Company as treasury stock, (ii) 200,000 shares of preferred stock of the Company, par value $0.01 per share (“Preferred Stock”): (a) 100,000 shares of Preferred Stock has been designated Series A Preferred Stock, of which 80,263 shares are issued and outstanding and 718 shares are held by the Company as treasury stock, (b) 36,000 shares of Preferred Stock has been designated Senior Preferred Stock, of which 17,850 shares 3,879,729 are issued and outstanding, and 20,000,000 preferred shares (c) 15,000 “Preferred Shares”), 6,000,000 shares of Preferred Stock has been which are designated Senior as Series A Preferred Stock, Shares (“Series A Preferred Shares”) and of which 7,000 5,054,309 shares are issued and outstandingoutstanding as of the date hereof, 7,000,000 shares which are designated as Series B Preferred Shares (“Series B Preferred Shares”), and of which 5,499,999 shares are issued and outstanding as of the date hereof, 7,000,000 shares which are designated as Series C Preferred Shares (“Series C Preferred Shares”), and of which 6,000,000 are issued and outstanding as of the date hereof. Section 3.4(a) 3.4 of the Company Disclosure Schedule sets forth, as of the amount date hereof, a complete and accurate list of (a) all Shareholders, indicating the number of Company Stock Capital Shares held by each, and (b) all outstanding options to purchase Common Shares pursuant to the Shares Option Plan or otherwise (“Options”), indicating (i) the holder thereof and his or her state of residence, (ii) the number and class or series of Company Capital Shares subject to each ShareholderOption, together with and (iii) the domicile address exercise price, date of such Shareholder. The Company has no other capital stock authorizedgrant, issued or outstandingand vesting schedule (including, without limitation, early exercise rights, if any) for each Option. All of the outstanding shares Options will terminate and be of no further force or effect at or immediately prior to the Effective Time, and neither the Company, the Purchaser, the Merger Sub nor the Surviving Company will, thereafter, have any Liability or obligation, including any obligation to pay any Merger Consideration with respect thereto, except as expressly provided in this Agreement. All of the issued and outstanding Company Stock are Capital Shares are, and all Company Capital Shares that may be issued upon exercise of Options will be (upon issuance in accordance with their terms), duly authorized, validly issued, fully paid paid, nonassessable and non-assessable free of all preemptive rights. All of the issued and outstanding Company Capital Shares which may previously have been issued subject to a right of repurchase in accordance with the Company Charter Documents. The outstanding shares of Company Stock were not issued in violation of, and are not subject to, any preemptive rights and are free from any restrictions on transfer, except for restrictions imposed by Federal or state securities or “blue sky” Laws. None of the outstanding shares of the Company’s capital stock was issued in violation of the Securities Act of 1933, as amended, or applicable state securities Laws. There are no bonds, debentures, notes or other Indebtedness of any type whatsoever favor of the Company having the right to vote (or convertible intoany other Person, or exchangeable forotherwise subject to “vesting” provisions, securities having are fully vested by lapse of time and no longer subject to any repurchase right, without regard to any acceleration in connection with the right to vote) on any matters on which any shareholders of Merger. Other than the Company may vote. Except as set forth Options listed in Section 3.4(a) 3.4 of the Company Disclosure Schedule, except for as of the Equity Awards granted under the Company Option Plans and except for rights granted to Parent under this Agreementdate hereof, there are no outstanding or authorized options, warrants, calls, demands, stock appreciation rights, Contracts agreements or other rights of any nature commitments to purchase, obtain or acquire or otherwise relating to, or any outstanding securities or obligations convertible into or exchangeable for, or any voting agreements with respect to, any shares of capital stock of the Company or any other securities of the Company and which the Company is not obligateda party or which are binding upon the Company providing for the issuance or redemption of any Company Capital Shares. All issued and outstanding Company Capital Shares are held or owned free and clear of any restrictions on transfer (other than restrictions under securities and other applicable Law), pursuant to any securitiesclaims, security interests, options, warrants, rights, contracts, calls, commitments, equities and demands. No holder of Indebtedness of the Company has any right to convert or exchange such Indebtedness for Company Capital Shares. There are no outstanding or authorized shares appreciation, Contracts phantom shares or other similar rights with respect to the Company. There are no agreements to which the Company is a party or by which it is bound with respect to the voting (including, without limitation, voting trusts or proxies), registration, or sale or transfer (including, without limitation, agreements relating to preemptive rights, rights of first refusal, co-sale rights or “drag-along” rights) of any nature or otherwise, now or in securities of the future, contingently or otherwise, to issue, deliver, sell, purchase or redeem any capital stock Company. To the Knowledge of the Company, there are no agreements among other parties to which the Company is not a party and by which it is not bound, with respect to the voting (including, without limitation, voting trusts or proxies) or sale or transfer (including, without limitation, agreements relating to rights of first refusal, co-sale rights or “drag-along” rights) of any other securities of the Company or any interest in or assets of the Company to or from any Person or to issue, deliver, sell, purchase or redeem any stock appreciation rights or other Contracts of the Company relating to any capital stock or other securities of the Company to or from any Person. Except for the Company Option Plans, the Company has never adopted, sponsored or maintained any stock option plan or any other plan or agreement providing for equity compensation to any Person.
(b) The authorized and outstanding capital stock of the Subsidiaries of the Company is set forth in Section 3.4(b) of the Company Disclosure Schedule. No Subsidiary has other capital stock authorized, issued or outstandingCompany. All of the outstanding shares of capital stock of issued and Outstanding Company Capital Shares and Options were issued and granted in compliance with applicable securities laws. In the Subsidiaries of the Company are duly authorizedMerger, validly issued, fully paid and non-assessable and have been issued in accordance with the Subsidiary Organizational Documents. The outstanding shares of capital stock of each Subsidiary was not issued in violation of, and are not subject to, any preemptive rights and are free from any restrictions on transfer, except for restrictions imposed by Federal or state securities or “blue sky” Laws. None all of the outstanding Company Capital shares of capital stock of any Subsidiaries was issued in violation of the Securities Act of 1933, as amended, or applicable state securities Laws. There are no bonds, debentures, notes or other indebtedness of any type whatsoever of the Subsidiaries of the Company having the right entitled to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which any shareholders of any Subsidiary of the Company may vote. Except as set forth in Section 3.4(b) of the Company Disclosure Schedule, there are no outstanding options, warrants, calls, demands, stock appreciation rights, Contracts or other rights of any nature to purchase, obtain or acquire or otherwise relating to, or any outstanding securities or obligations convertible into or exchangeable for, or any voting agreements with respect to, any shares of capital stock of the Subsidiaries of the Company or any other securities of the Subsidiaries of the Company and none of the Subsidiaries of the Company is obligated, pursuant to any securities, options, warrants, calls, demands, Contracts or other rights of any nature or otherwise, now or in the future, contingently or otherwise, to issue, deliver, sell, purchase or redeem any capital stock of the Subsidiaries of the Company, any other securities of the Subsidiaries of the Company or any interest in or assets of the Subsidiaries of the Company to or from any Person or to issue, deliver, sell, purchase or redeem any stock appreciation rights or other Contracts of the Subsidiaries of the Company relating to any capital stock or other securities of the Subsidiaries of the Company to or from any Persona single class.
Appears in 1 contract
Capitalization and Ownership. (a) The As of the date of this Agreement, the entire authorized capital stock of the Company consists of (i) 2,500,000 2,000,000 shares of Company Common Stock, of which 1,893,854 shares are issued Stock and outstanding and 380,977 shares are held by the Company as treasury stock, (ii) 200,000 900,000 shares of preferred stock of the Company, par value $0.01 per share (“Preferred Stock”): (a) 100,000 shares of Preferred Stock has been designated Series A Preferred Stock, of which 80,263 19,000 shares are have been designated as Junior Preferred Stock, 107,500 shares have been designated as Series A Preferred Stock and 495,000 shares have been designated as Series B Preferred Stock. The issued and outstanding and 718 shares are held by the Company as treasury stock, (b) 36,000 shares of Preferred Stock has been designated Senior Company Common Stock, Junior Preferred Stock, of which 17,850 shares are issued and outstanding, and (c) 15,000 shares of Preferred Stock has been designated Senior Series A Preferred StockStock and Series B Preferred Stock are owned of record and, of which 7,000 shares are issued and outstanding. Section 3.4(a) to the knowledge of the Company Disclosure Schedule sets forthCompany, beneficially, by the amount of Company Stock held by each Shareholder, together with the domicile address of such Shareholder. The Company has no other capital stock authorized, issued or outstandingStockholders shown on EXHIBITS A-1 through A-3 hereof. All of the presently outstanding shares of capital stock of the Company Stock have been validly authorized and issued and are duly authorized, validly issued, fully paid and non-assessable and have been issued in accordance with the Company Charter Documents. The outstanding shares of Company Stock were not issued in violation of, and are not subject to, any preemptive rights and are free from any restrictions on transfer, except for restrictions imposed by Federal or state securities or “blue sky” Laws. None of the outstanding shares of the Company’s capital stock was issued in violation of the Securities Act of 1933, as amended, or applicable state securities Laws. There are no bonds, debentures, notes or other Indebtedness of any type whatsoever 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 any shareholders of the Company may votenonassessable. Except as set forth provided in Section 3.4(a) of Schedule 3.03(a), the Company Disclosure Schedule, except for the Equity Awards granted under the Company Option Plans has not issued any other shares of its capital stock and except for rights granted to Parent under this Agreement, there are no outstanding options, warrants, calls, demands, stock appreciation rights, Contracts subscriptions or other rights of any nature or obligations to purchase, obtain purchase or acquire or otherwise relating toany of such shares, or nor any outstanding securities or obligations convertible into or exchangeable forfor such shares. Except as disclosed on Schedule 3.03(a) or as contemplated under this Agreement, or any voting there are no agreements with respect to, any shares of capital stock of the Company or any other securities of the Company and to which the Company is not obligateda party or has knowledge regarding the issuance, pursuant to any securitiesregistration, optionsvoting or transfer of its outstanding shares of its capital stock. Except as set forth on Schedule 3.03(a), warrants, calls, demands, Contracts or other rights of any nature or otherwise, now or in the future, contingently or otherwise, to issue, deliver, sell, purchase or redeem no dividends are accrued but unpaid on any capital stock of the Company, any other securities of the Company or any interest in or assets of the Company to or from any Person or to issue, deliver, sell, purchase or redeem any stock appreciation rights or other Contracts of the Company relating to any capital stock or other securities of the Company to or from any Person. Except for the Company Option Plans, the Company has never adopted, sponsored or maintained any stock option plan or any other plan or agreement providing for equity compensation to any Person.
(b) The authorized and outstanding issued capital stock of the Subsidiaries Subsidiary and the names and ownership interest of the Company each holder of such capital stock is as set forth in Section 3.4(b) of the Company Disclosure ScheduleSchedule 3.03(b). No Subsidiary has other capital stock authorizedExcept as set forth on Schedule 3.03(b), issued or outstanding. All of the there are no outstanding shares of capital stock of the Subsidiaries of the Company are duly authorized, validly issued, fully paid Subsidiary and non-assessable and have been issued in accordance with the Subsidiary Organizational Documents. The outstanding shares of capital stock of each Subsidiary was not issued in violation of, and are not subject to, any preemptive rights and are free from any restrictions on transfer, except for restrictions imposed by Federal or state securities or “blue sky” Laws. None of the outstanding shares of capital stock of any Subsidiaries was issued in violation of the Securities Act of 1933, as amended, or applicable state securities Laws. There are no bonds, debentures, notes or other indebtedness of any type whatsoever of the Subsidiaries 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 any shareholders of any Subsidiary of the Company may vote. Except as set forth in Section 3.4(b) of the Company Disclosure Schedule, there are no outstanding options, warrants, calls, demands, stock appreciation rights, Contracts subscriptions or other rights of any nature or obligations to purchase, obtain purchase or acquire or otherwise relating toany of such shares of capital stock, or nor any outstanding securities or obligations convertible into or exchangeable forfor such shares. There is no agreement pending or contemplated to which the Subsidiary is a party regarding the issuance, registration, voting or any voting agreements with respect to, transfer of any shares of capital stock of the Subsidiaries of the Company or any other securities of the Subsidiaries of the Company and none of the Subsidiaries of the Company is obligated, pursuant to any securities, options, warrants, calls, demands, Contracts or other rights of any nature or otherwise, now or in the future, contingently or otherwise, to issue, deliver, sell, purchase or redeem any capital stock of the Subsidiaries of the Company, any other securities of the Subsidiaries of the Company or any interest in or assets of the Subsidiaries of the Company to or from any Person or to issue, deliver, sell, purchase or redeem any stock appreciation rights or other Contracts of the Subsidiaries of the Company relating to any capital stock or other securities of the Subsidiaries of the Company to or from any PersonSubsidiary.
Appears in 1 contract
Sources: Stock Purchase and Redemption Agreement (Neff Corp)
Capitalization and Ownership. (a) The authorized capital stock membership units of the Company CRV consists of (i) 2,500,000 shares of Common Stock, 1,000 units of which 1,893,854 shares 1,000 units are issued and outstanding and 380,977 shares are held by to the Company Members as treasury stock, (iiset forth on Section 2.2(a) 200,000 shares of preferred stock of the Company, par value $0.01 per share (“Preferred Stock”): (a) 100,000 shares Disclosure Schedule. The authorized membership units of Preferred Stock has been designated Series A Preferred Stock, DRV consists of 3,454.54 units of which 80,263 shares 3,454.54 units are issued and outstanding to the Members as set forth on Section 2.2(a) of the Disclosure Schedule. The issued and 718 shares are held by outstanding units of CRV and DRV, collectively, constitute the Company as treasury stock, Units.
(b) 36,000 shares of Preferred Stock has been designated Senior Preferred Stock, of which 17,850 shares are issued and outstanding, and (c) 15,000 shares of Preferred Stock has been designated Senior Series A Preferred Stock, of which 7,000 shares are issued and outstanding. Section 3.4(a) All of the Company Disclosure Schedule sets forth, the amount of Company Stock held by each Shareholder, together with the domicile address of such Shareholder. The Company has no other capital stock authorized, issued or outstanding. All of the outstanding shares of the Company Stock Units are duly authorized, validly issued, fully paid and non-assessable and have been issued in accordance with the Company Charter Documents. The outstanding shares of Company Stock were not issued in violation ofpaid, and are not subject to, any preemptive rights and are free from any restrictions on transfer, except for restrictions imposed by Federal or state securities or “blue sky” Laws. None of the outstanding shares of the Company’s capital stock was issued in violation of the Securities Act of 1933, as amended, or applicable state securities Lawsnonassessable. There are no bonds, debentures, notes outstanding or other Indebtedness of any type whatsoever of the Company having the right to vote (or authorized securities convertible into, or exchangeable for, securities having the right to vote) on any matters on which any shareholders of the Company may vote. Except as set forth in Section 3.4(a) of the Company Disclosure Schedule, except for the Equity Awards granted under the Company Option Plans and except for rights granted to Parent under this Agreement, there are no outstanding options, warrants, calls, demands, stock appreciation rights, Contracts or other rights of any nature to purchase, obtain or acquire or otherwise relating to, or any outstanding securities or obligations convertible into or exchangeable for, or any voting agreements with respect to, any shares of capital stock of carrying the Company or any other securities of the Company and the Company is not obligated, pursuant right to any securities, options, warrants, calls, demands, Contracts or other rights of any nature or otherwise, now or in the future, contingently or otherwise, to issue, deliver, sell, purchase or redeem any capital stock of the Company, any other acquire equity securities of the Company or any subscriptions, warrants, options, rights (including preemptive rights), or other arrangements or commitments obligating the Company to issue or dispose of any of its securities or any ownership interest in or assets therein. The Sellers hold of record and own beneficially all of the Company to or from any Person or to issueUnits, deliver, sell, purchase or redeem any stock appreciation rights or other Contracts of the Company relating to any capital stock or other securities of the Company to or from any Person. Except for the Company Option Plans, the Company has never adopted, sponsored or maintained any stock option plan or any other plan or agreement providing for equity compensation to any Person.
(b) The authorized free and outstanding capital stock of the Subsidiaries of the Company is set forth in Section 3.4(b) of the Company Disclosure Schedule. No Subsidiary has other capital stock authorized, issued or outstanding. All of the outstanding shares of capital stock of the Subsidiaries of the Company are duly authorized, validly issued, fully paid and non-assessable and have been issued in accordance with the Subsidiary Organizational Documents. The outstanding shares of capital stock of each Subsidiary was not issued in violation of, and are not subject to, any preemptive rights and are free from any restrictions on transfer, except for restrictions imposed by Federal or state securities or “blue sky” Laws. None of the outstanding shares of capital stock clear of any Subsidiaries was issued in violation of the Securities Act of 1933Taxes, as amended, or applicable state securities Laws. There are no bonds, debentures, notes or other indebtedness of any type whatsoever of the Subsidiaries 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 any shareholders of any Subsidiary of the Company may vote. Except as set forth in Section 3.4(b) of the Company Disclosure Schedule, there are no outstanding options, warrants, calls, demands, stock appreciation rights, Contracts or other rights of any nature to purchase, obtain or acquire or otherwise relating to, or any outstanding securities or obligations convertible into or exchangeable for, or any voting agreements with respect to, any shares of capital stock of the Subsidiaries of the Company or any other securities of the Subsidiaries of the Company and none of the Subsidiaries of the Company is obligated, pursuant to any securitiesliens, options, warrants, callspurchase rights, demandscontracts, Contracts commitments, equities, charges, claims, pledges, voting trusts, voting agreements, proxies, security holder or similar agreements, encumbrances, or restrictions on transfer (other rights of any nature or otherwisethan applicable securities law STOCK PURCHASE AGREEMENT 6 restrictions) (“Encumbrances”), now or other than those restrictions on transfers, if any, contained in the future, contingently or otherwise, to issue, deliver, sell, purchase or redeem any capital stock Company’s Organizational Documents and set forth on Section 2.2(b) of the Subsidiaries Disclosure Schedule. The consummation of the Company, transactions contemplated hereby will not cause any other securities of the Subsidiaries of Encumbrance to be created or suffered upon the Company Units, other than Encumbrances created or any interest in or assets of suffered by the Subsidiaries of the Company to or from any Person or to issue, deliver, sell, purchase or redeem any stock appreciation rights or other Contracts of the Subsidiaries of the Company relating to any capital stock or other securities of the Subsidiaries of the Company to or from any PersonBuyer.
Appears in 1 contract
Capitalization and Ownership. (a) The authorized share capital stock of the Company consists and each of (ithe Subsidiaries is set forth in Section 3.4(a) 2,500,000 shares of Common Stock, the Company Disclosure Schedule. The Shares represent all of which 1,893,854 shares are the issued and outstanding and 380,977 shares are held by in the capital of the Company as treasury stock, (ii) 200,000 shares of preferred stock of the Company, par value $0.01 per share (“Preferred Stock”): (a) 100,000 shares of Preferred Stock has been designated Series A Preferred Stock, of which 80,263 shares are issued and outstanding and 718 shares are held by the Company as treasury stock, (b) 36,000 shares of Preferred Stock has been designated Senior Preferred Stock, of which 17,850 shares are issued and outstanding, and (c) 15,000 shares of Preferred Stock has been designated Senior Series A Preferred Stock, of which 7,000 shares are issued and outstandingeach Subsidiary. Section 3.4(a) of the Company Disclosure Schedule sets forth, forth a complete and accurate list of all Company Shareholders as of the amount date hereof and the number and type of Company Stock Shares held by each Shareholder, together with the domicile address of such Shareholder. The Company has no other capital stock authorized, issued or outstandingeach. All of the outstanding shares securities of each Subsidiary are owned of record and beneficially by one or more of the Company Stock are duly authorizedAcquired Companies, validly issued, fully paid free and non-assessable and have been issued in accordance with clear of all Encumbrances other than Permitted Encumbrances. Neither the Company Charter Documents. The outstanding shares nor any of Company Stock were not the Subsidiaries has any other equity securities issued in violation of, and are not subject to, any preemptive rights and are free from any restrictions on transferor outstanding, except for restrictions imposed by Federal or state securities or “blue sky” Laws. None of the outstanding shares of the Company’s capital stock was issued in violation of the Securities Act of 1933, as amended, or applicable state securities Laws. There are no bonds, debentures, notes or other Indebtedness of any type whatsoever 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 any shareholders of the Company may voteOptions. Except as set forth in Section 3.4(a) of the Company Disclosure Schedule, except for prior to and as of the Equity Awards granted under the Company Option Plans and except for rights granted to Parent under date of this Agreement, there are no outstanding optionsdividends have been declared, warrants, calls, demands, stock appreciation rights, Contracts reserved or other rights of any nature to purchase, obtain or acquire or otherwise relating to, or any outstanding securities or obligations convertible into or exchangeable for, or any voting agreements set aside with respect to, any shares of capital stock of the Company or any other securities of the Company and the Company is not obligated, pursuant to any securities, options, warrants, calls, demands, Contracts or other rights of any nature or otherwise, now or Shares. The Conversion Rate (as defined in the future, contingently or otherwise, to issue, deliver, sell, purchase or redeem any capital stock restated articles of the Company, any other securities of ) with respect to the Company or any interest in or assets of the Company to or from any Person or to issue, deliver, sell, purchase or redeem any stock appreciation rights or other Contracts of the Company relating to any capital stock or other securities of the Company to or from any Person. Except for the Company Option Plans, the Company has never adopted, sponsored or maintained any stock option plan or any other plan or agreement providing for equity compensation to any PersonPreference Shares is one.
(b) The authorized and outstanding capital stock of the Subsidiaries of the Company is set forth in Section 3.4(b) of the Company Disclosure Schedule sets forth for each Subsidiary:
(i) its current and prior name and jurisdiction of incorporation or organization;
(ii) its authorized share capital; and
(iii) the number of issued and outstanding shares of its authorized share capital and the record and beneficial owners thereof.
(c) No Acquired Company owns, controls or has any rights to acquire, directly or indirectly, any shares or other securities of any Person, except for the Subsidiaries.
(d) The Company Stock Option Plan is the only stock option or equity related plan, program or agreement maintained by the Company or to which the Company is a party. Section 3.4(d) of the Company Disclosure Schedule sets forth a complete and accurate list, as of the date specified therein, of the number and class of Common Shares subject to outstanding Company Options. There are currently 20,216,252 Class A Common Shares reserved for issuance under the Company Stock Option Plan and Section 3.4(d) of the Company Disclosure Schedule sets forth a list of all Company Options granted to date under the Company Stock Option Plan and, with respect to each Company Option, the name of the holder thereof, the number of Class A Common Shares subject to such Company Option, the Exercise Price, the date of grant, the exercise period and the vesting schedule. The Company has delivered or made available to the Purchaser and the Parent complete and accurate copies of all Company Stock Plans and the form of option agreement evidencing Company Options and any other agreements relating to other equity based awards.
(e) Except as set forth in this Section 3.4 or as set forth in Sections 3.4(e)(i) through (v) of the Company Disclosure Schedule. No Subsidiary has other capital stock authorized:
(i) there are no equity securities of any class of any Acquired Company, issued or any security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding. ;
(ii) there are no options, warrants, equity securities, calls, rights or other Contracts to which any Acquired Company is a party or by which any Acquired Company is bound obligating any Acquired Company to issue, exchange, transfer, deliver or sell, or cause to be issued, exchanged, transferred, delivered or sold, additional shares or other equity interests of any Acquired Company or any security or rights convertible into or exchangeable or exercisable for any such shares or other equity interests, or obligating any Acquired Company to grant, extend, accelerate the vesting of, otherwise modify or amend or enter into any such option, warrant, equity security, call, right, or Contract;
(iii) there are no Contracts to which any Acquired Company or, to the Knowledge of the Company, any Company Securityholder, is a party or by which any Acquired Company or, to the Knowledge of the Company, any Company Securityholder is bound with respect to the voting (including voting trusts or proxies), registration under any Securities Law (including the qualification of a prospectus under Canadian Securities Law), or the sale or transfer (including Contracts imposing transfer restrictions) of any shares or other equity interests of any Acquired Company;
(iv) the Company does not have any outstanding share appreciation rights, phantom shares, performance based rights or similar rights or obligations; and
(v) no holder of indebtedness of any Acquired Company has any right to convert or exchange such indebtedness for any equity securities or other securities of any Acquired Company, and no holders of outstanding indebtedness of any Acquired Company have any rights to vote for the election of directors of any Acquired Company or to vote on any other matter.
(f) All of the outstanding shares of capital stock Shares and all of the Subsidiaries issued and outstanding equity securities of the Company are each Subsidiary have been duly authorized, validly issued, issued and are outstanding as fully paid and non-assessable and have been issued shares in accordance with the Subsidiary Organizational Documentscapital of the Company or the Subsidiaries, as the case may be. The Shares and the issued and outstanding shares of capital stock equity securities of each Subsidiary was are not subject to, and were not issued in violation of, any purchase option, right of first refusal, pre-emptive right, subscription right or any similar right and are not subject to, any preemptive rights and are free from any restrictions on transferwere issued in compliance with all applicable Laws, except for restrictions imposed by Federal or state securities or “blue sky” Laws. None of the outstanding shares of capital stock of any Subsidiaries was issued in violation of the Securities Act of 1933, as amended, or applicable state securities Laws. There are no bonds, debentures, notes or other indebtedness of any type whatsoever of the Subsidiaries 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 any shareholders of any Subsidiary of the Company may vote. Except as set forth disclosed in Section 3.4(b3.4(f) of the Company Disclosure Schedule, there .
(g) There are no outstanding optionsobligations, warrantscontingent or otherwise, callsof any Acquired Company to repurchase, demands, stock appreciation rights, Contracts redeem or otherwise acquire any shares or other rights equity interests of any nature Acquired Company. No Acquired Company is subject to purchaseany obligation or requirement to provide funds to or make any investment (in the form of a loan, obtain capital contribution or acquire or otherwise relating to, or otherwise) in any outstanding securities or obligations convertible into or exchangeable for, or any voting agreements with respect to, any shares of capital stock of the Subsidiaries of the Company Subsidiary or any other securities Person. Except to the extent arising pursuant to applicable take-over or similar Laws, there is no rights agreement, "poison pill" anti-take-over plan or other similar agreement or understanding to which any of the Subsidiaries of the Company and none of the Subsidiaries of the Company Acquired Companies is obligated, pursuant a party or by which it or they are bound with respect to any securities, options, warrants, calls, demands, Contracts or other rights equity security of any nature or otherwise, now or in the future, contingently or otherwise, to issue, deliver, sell, purchase or redeem class of any capital stock of the Subsidiaries of the Acquired Company, any other securities of the Subsidiaries of the Company or any interest in or assets of the Subsidiaries of the Company to or from any Person or to issue, deliver, sell, purchase or redeem any stock appreciation rights or other Contracts of the Subsidiaries of the Company relating to any capital stock or other securities of the Subsidiaries of the Company to or from any Person.
Appears in 1 contract
Sources: Arrangement Agreement (Radisys Corp)
Capitalization and Ownership. (a) The authorized capital stock of the Company consists solely of (i) 2,500,000 32,000,000 shares of common stock, par value $0.001 (“Common Stock”), of which 1,893,854 16,918,987 shares are issued and outstanding and 380,977 shares are held by as of the Company as treasury stockdate hereof, (ii) 200,000 4,546,404 shares of preferred stock of the Companydesignated as Series A Preferred Stock (“Series A Preferred Stock”), par value $0.01 per share 0.001, all of which are issued and outstanding as of the date hereof, and 2,426,844 shares of preferred stock designated as Series B Preferred Stock (“Series B Preferred Stock”): (a) 100,000 shares of Preferred Stock has been designated Series A Preferred Stock), par value $0.001, of which 80,263 2,254,844 shares are issued and outstanding and 718 shares are held by as of the Company as treasury stock, (b) 36,000 shares of Preferred Stock has been designated Senior Preferred Stock, of which 17,850 shares are issued and outstanding, and (c) 15,000 shares of Preferred Stock has been designated Senior Series A Preferred Stock, of which 7,000 shares are issued and outstandingdate hereof. Section 3.4(a) 3.4 of the Company Disclosure Schedule sets forth, as of the amount date hereof, a complete and accurate list of all Stockholders of record, indicating the number of shares of Company Capital Stock held of record by each Shareholder, together with the domicile address of such Shareholdereach. The Company has no other capital stock authorizedprovided to the Purchaser a complete and accurate list as of the date of this Agreement of all outstanding Options, issued indicating the holders thereof, the number and class or outstandingseries of Company Capital Stock subject to each Option, the exercise price and date of grant for each Option. All of the Options will terminate and be of no further force or effect at or immediately prior to the Effective Time, and none of the Company, the Purchaser, the Merger Sub or the Surviving Corporation will, thereafter, have any Liability or obligation, including any obligation to pay any Merger Consideration with respect thereto. All of the issued and outstanding shares of the Company Capital Stock are duly authorized, validly issued, fully paid paid, nonassessable and non-assessable free of all preemptive rights. All of the issued and have been issued in accordance with the Company Charter Documents. The outstanding shares of Company Capital Stock were not issued which may previously have been subject to a right of repurchase in violation of, and are not subject to, any preemptive rights and are free from any restrictions on transfer, except for restrictions imposed by Federal or state securities or “blue sky” Laws. None of the outstanding shares of the Company’s capital stock was issued in violation of the Securities Act of 1933, as amended, or applicable state securities Laws. There are no bonds, debentures, notes or other Indebtedness of any type whatsoever 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 any shareholders of the Company may vote. Except as set forth in Section 3.4(a) of the Company Disclosure Schedule, except for the Equity Awards granted under the Company Option Plans and except for rights granted to Parent under this Agreement, there are no outstanding options, warrants, calls, demands, stock appreciation rights, Contracts or other rights of any nature to purchase, obtain or acquire or otherwise relating to, or any outstanding securities or obligations convertible into or exchangeable for, or any voting agreements with respect to, any shares of capital stock favor of the Company or any other securities Person, or otherwise subject to “vesting” provisions are fully vested by lapse of the Company time and the Company is not obligated, pursuant no longer subject to any securitiesrepurchase right, without regard to any acceleration in connection with the Merger. There are no outstanding or authorized options, warrants, callsrights, demandsagreements or commitments to which the Company is a party or which are binding upon the Company providing for the issuance or redemption of any shares of Company Capital Stock. No holder of Indebtedness of the Company has any right to convert or exchange such Indebtedness for Company Capital Stock. There are no outstanding or authorized stock appreciation, Contracts phantom stock or other similar rights with respect to the Company. There are no agreements to which the Company is a party or by which it is bound with respect to the voting (including voting trusts or proxies), registration under the Securities Act, or any foreign securities Law, or sale or transfer (including agreements relating to preemptive rights, rights of first refusal, co-sale rights or “drag-along” rights) of any nature or otherwise, now or in the future, contingently or otherwise, to issue, deliver, sell, purchase or redeem any capital stock securities of the Company, any other securities of the Company or any interest in or assets of the Company to or from any Person or to issue, deliver, sell, purchase or redeem any stock appreciation rights or other Contracts of the Company relating to any capital stock or other securities of the Company to or from any Person. Except for the Company Option Plans, the Company has never adopted, sponsored or maintained any stock option plan or any other plan or agreement providing for equity compensation to any Person.
(b) The authorized and outstanding capital stock of the Subsidiaries of the Company is set forth in Section 3.4(b) of the Company Disclosure Schedule. No Subsidiary has other capital stock authorized, issued or outstanding. All of the issued and outstanding shares of capital stock of the Subsidiaries of the Company are duly authorized, validly issued, fully paid and non-assessable and have been Capital Stock were issued in accordance compliance with the Subsidiary Organizational Documentsapplicable federal and state securities laws. The outstanding shares of capital stock of each Subsidiary was not issued in violation of, and are not subject to, any preemptive rights and are free from any restrictions on transfer, except for restrictions imposed by Federal or state securities or “blue sky” Laws. None of the outstanding shares of capital stock of any Subsidiaries was issued in violation of the Securities Act of 1933, as amended, or applicable state securities Laws. There are no bonds, debentures, notes or other indebtedness of any type whatsoever of the Subsidiaries of the Company having Capital Stock is held of record by the right to vote (or convertible into, or exchangeable for, securities having Stockholders in the right to vote) on any matters on which any shareholders of any Subsidiary of the Company may vote. Except as number and type set forth in Section 3.4(b) of the Company Disclosure Schedule, there are no outstanding options, warrants, calls, demands, stock appreciation rights, Contracts or other rights of any nature to purchase, obtain or acquire or otherwise relating to, or any outstanding securities or obligations convertible into or exchangeable for, or any voting agreements with respect to, any shares of capital stock of the Subsidiaries of the Company or any other securities of the Subsidiaries of the Company and none of the Subsidiaries of the Company is obligated, pursuant to any securities, options, warrants, calls, demands, Contracts or other rights of any nature or otherwise, now or opposite their names as provided in the future, contingently or otherwise, to issue, deliver, sell, purchase or redeem any capital stock of the Subsidiaries of the Company, any other securities of the Subsidiaries of the Company or any interest in or assets of the Subsidiaries of the Company to or from any Person or to issue, deliver, sell, purchase or redeem any stock appreciation rights or other Contracts of the Subsidiaries of the Company relating to any capital stock or other securities of the Subsidiaries of the Company to or from any PersonFinal Merger Consideration Allocation Schedule.
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Capitalization and Ownership. 4.3.1 Company's capital stock consists of (a) The authorized capital stock of the Company consists of (i) 2,500,000 65,200,000 shares of Common Stockcommon stock, $0.001 par value per share, of which 1,893,854 only 21,678,498 shares are currently issued and outstanding (the "Company Common Stock") and (b) 8,109,062 shares of preferred stock, $0.001 par value per share, of which 4,609,062 shares are designated as a class of preferred stock known as "Series A Preferred Stock," and 3,500,000 shares are designated as a class of preferred stock known as "Series B Preferred Stock ." 4,596,593 shares of Series A Preferred Stock are currently issued and outstanding and 380,977 shares are held by the Company as treasury stock, (ii) 200,000 3,369,403 shares of preferred stock of the Company, par value $0.01 per share (“Preferred Stock”): (a) 100,000 shares of Series B Preferred Stock has been designated Series A Preferred Stock, of which 80,263 shares are currently issued and outstanding and 718 shares are held by (collectively, the "Company Preferred Stock"). Schedule 4.3.1 sets forth the stock holdings of Company as treasury stock, (b) 36,000 shares of Preferred Stock has been designated Senior Preferred Stock, of which 17,850 shares are issued and outstanding, and (c) 15,000 shares of Preferred Stock has been designated Senior Series A Preferred Stock, of which 7,000 shares are issued and outstanding. Section 3.4(a) of the Company Disclosure Schedule sets forthdate of this Agreement, including the amount name and address of Company Stock held each Stockholder and the number of Shares per class owned by each Shareholder, together with the domicile address of such Shareholder. The Company has no other capital stock authorized, issued or outstandingStockholder. All of the outstanding shares of Company Common Stock and the Company Preferred Stock are have been duly authorized, authorized and validly issued, are fully paid and non-assessable and have been issued in accordance with the Company Charter Documents. The outstanding shares of Company Stock nonassessable, were not issued in violation ofof the terms of any Contract binding upon Company, and are not subject to, any preemptive rights were issued in compliance with all applicable Charter Documents of Company and are free from any restrictions on transfer, except for restrictions imposed by Federal or all applicable federal and state securities or “"blue sky” Laws" laws and regulations. None Options to purchase 7,250,129 shares of Company Common Stock (the "Company Options"), including, without limitation, the option grants made by the Company to ▇▇▇▇▇▇ ▇▇▇▇▇ on November 13, 2000 and December 7, 2000, and a warrant issued to Dell USA L.P. to purchase 312,500 shares of Company Common Stock (the "Company Warrant") are outstanding as of the outstanding shares date of this Agreement. No equity securities of Company, other than the Company’s capital stock was Company Common Stock, the Company Preferred Stock, the Company Options and the Company Warrant, are issued in violation of the Securities Act of 1933, as amended, or applicable state securities Lawsoutstanding. There are no bonds, debentures, notes or other Indebtedness of any type whatsoever preemptive rights to purchase authorized but unissued shares 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 any shareholders of Common Stock and the Company may votePreferred Stock. Except as set forth in Section 3.4(a) above or on Schedule 4.3.1, as of the Company Disclosure Scheduledate of this Agreement there are: (i) no existing Contracts, except for the Equity Awards granted under the Company Option Plans and except for rights granted to Parent under this Agreement, there are no outstanding options, warrants, calls, demands, stock appreciation rights, Contracts or other rights of any nature to purchase, obtain or acquire or otherwise relating to, or any outstanding securities or obligations convertible into or exchangeable for, or any voting agreements with respect to, any shares of capital stock of the Company or any other securities of the Company and the Company is not obligated, pursuant to any securitiessubscriptions, options, warrants, calls, demands, Contracts commitments or other rights of any nature character to purchase or otherwise, now or in the future, contingently or otherwiseotherwise acquire from Company or, to issuethe Company's knowledge, deliver, sell, purchase or redeem any capital stock of the CompanyStockholders, at any other securities time, or upon the happening of the Company or any interest in or assets of the Company to or from any Person or to issuestated event, deliver, sell, purchase or redeem any stock appreciation rights or other Contracts of the Company relating to any capital stock or other securities of the Company to Company, whether or from any Person. Except for the Company Option Plans, the Company has never adopted, sponsored or maintained any stock option plan or any other plan or agreement providing for equity compensation to any Person.
(b) The authorized and outstanding capital stock of the Subsidiaries of the Company is set forth in Section 3.4(b) of the Company Disclosure Schedule. No Subsidiary has other capital stock authorized, not presently issued or outstanding. All of the outstanding shares of capital stock of the Subsidiaries of the Company are duly authorized, validly issued, fully paid and non-assessable and have been issued in accordance with the Subsidiary Organizational Documents. The outstanding shares of capital stock of each Subsidiary was not issued in violation of, and are not subject to, any preemptive rights and are free from any restrictions on transfer, except for restrictions imposed by Federal or state securities or “blue sky” Laws. None of the outstanding shares of capital stock of any Subsidiaries was issued in violation of the Securities Act of 1933, as amended, or applicable state securities Laws. There are no bonds, debentures, notes or other indebtedness of any type whatsoever of the Subsidiaries of the Company having the right to vote ; (or convertible into, or exchangeable for, securities having the right to voteii) on any matters on which any shareholders of any Subsidiary of the Company may vote. Except as set forth in Section 3.4(b) of the Company Disclosure Schedule, there are no outstanding options, warrants, calls, demands, stock appreciation rights, Contracts or other rights securities of any nature to purchase, obtain or acquire or otherwise relating to, or any outstanding securities or obligations Company that are convertible into or exchangeable for, or any voting agreements with respect to, any shares of for capital stock of the Subsidiaries of the Company or any other securities of the Subsidiaries of the Company Company; and none of the Subsidiaries of the Company is obligated(iii) no existing Contracts, pursuant to any securitiessubscriptions, options, warrants, calls, demands, Contracts commitments or other rights of any nature or otherwise, now or in the future, contingently or otherwise, to issue, deliver, sell, purchase or redeem otherwise acquire from Company any capital stock of the Subsidiaries of the Company, any other securities of the Subsidiaries of such convertible or exchangeable securities.
4.3.2 There are no accrued but unpaid dividends on the Company or any interest in or assets of the Subsidiaries of the Company to or from any Person or to issue, deliver, sell, purchase or redeem any stock appreciation rights or other Contracts of the Subsidiaries of the Company relating to any capital stock or other securities of the Subsidiaries of the Company to or from any PersonPreferred Stock.
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Sources: Merger Agreement (Systems & Computer Technology Corp)