Capitalization and Related Matters Sample Clauses

Capitalization and Related Matters. (a) The authorized capital stock of the Acquiree consists of 50,000 Ordinary Shares, of which 50,000 shares are issued and outstanding. There are no outstanding or authorized options, warrants, calls, purchase agreements, participation agreements, subscription rights, conversion rights, exchange rights or other securities or contracts that could require the Acquiree to issue, sell or otherwise cause to become outstanding any of its authorized but unissued shares of capital stock or any securities convertible into, exchangeable for or carrying a right or option to purchase shares of capital stock or to create, authorize, issue, sell or otherwise cause to become outstanding any new class of capital stock. There are no outstanding stockholders’ agreements, voting trusts or arrangements, registration rights agreements, rights of first refusal or other contracts pertaining to the capital stock of the Acquiree. The issuance of all of the Ordinary Shares described in this Section 5.07(a) has been in compliance with the laws of the British Virgin Islands. All issued and outstanding shares of the Acquiree’s capital stock are duly authorized, validly issued, fully paid and nonassessable and have not been issued in violation of any preemptive or similar rights. The owners of the Ordinary Shares of the Acquiree own, and have good, valid and marketable title to, all the Ordinary Shares of the Acquiree. There are no outstanding contractual obligations (contingent or otherwise) of the Acquiree to retire, repurchase, redeem or otherwise acquire any outstanding shares of capital stock of, or other ownership interests in, the Acquiree or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any other Person. (b) The authorized capital stock of the HK Company consists of 10,000 Ordinary Shares, of which 100 shares are issued and outstanding. There are no outstanding or authorized options, warrants, calls, purchase agreements, participation agreements, subscription rights, conversion rights, exchange rights or other securities or contracts that could require the HK Company to issue, sell or otherwise cause to become outstanding any of its authorized but unissued shares of capital stock or any securities convertible into, exchangeable for or carrying a right or option to purchase shares of capital stock or to create, authorize, issue, sell or otherwise cause to become outstanding any new class of capital stock. There are no ou...

Capitalization and Related Matters. As of the Closing Date and immediately thereafter, the authorized capital stock of the Company and the shares of stock that are issued, outstanding and reserved for issuance upon exercise of warrants and Options and conversion of the Notes are as set forth on Schedule A. As of the Closing Date, the Company will not have outstanding any capital stock or securities convertible or exchangeable for any shares of its capital stock other than the warrants, Options and Notes as set forth in Schedule A, and will not have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock, other than the warrants and Options as set forth in Schedule A. As of the Closing Date, the Company will not be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock, except as set forth herein and the Charter Documents, respectively, as in effect on the date hereof. As of the Closing, all of the outstanding shares of the Company’s capital stock will be validly issued, fully paid and nonassessable. There are no statutory or contractual stockholders’ preemptive rights with respect to the issuance of the Notes hereunder. The Company has not violated any applicable federal or state securities laws in connection with the offer, sale or issuance of any of its capital stock, and the offer, sale and issuance of the Notes hereunder do not require registration under the Securities Act or any applicable state securities laws.

Capitalization and Related Matters. (a) Section 3.02(a) of the Company Disclosure Letter sets forth all of the issued and outstanding Equity Securities of each of the Company Entities. All of the Company Units are duly authorized and validly issued and, as of the date hereof, all of the outstanding Equity Securities of the Company Entities are held of record as set forth on Section 3.02(a) of the Company Disclosure Letter, free and clear of all Liens (other than Liens (i) arising under the Securities Act or applicable state securities Laws, (ii) arising under the Credit Facility and (iii) created or incurred by or at the direction of Buyer). (b) Except as set forth on Section 3.02(b) of the Company Disclosure Letter, (i) none of the Company Entities are subject to any obligation (contingent or otherwise) to issue, repurchase, redeem or otherwise acquire or retire any Equity Securities, (ii) there are no statutory or contractual preemptive rights, co-sale rights, rights of first refusal or similar rights or restrictions with respect to the Equity Securities of any Company Entity and (iii) except as set forth on Section 3.02(b) of the Company Disclosure Letter, to the Knowledge of the Company, there are no agreements or understandings among the holders of Equity Securities of the Company Entities or among any other Persons with respect to the voting or transfer of the Company Entities’ Equity Securities or with respect to any other aspect of the Company Entities’ governance. (c) Section 3.02(c) of the Company Disclosure Letter sets forth (x) the name of each Subsidiary of the Company, the jurisdiction of its incorporation or other organization, as applicable, and the Person(s) owning the outstanding Equity Securities of such Subsidiary and (y) a description of each Investment held by any Company Entity in another Person (other than in a Subsidiary). Except as set forth on Section 3.02(c) of the Company Disclosure Letter, the Company does not have any Subsidiaries and does not hold any Investment in any Person other than a Company Entity. No Company Entity has any obligation to make any Investment (whether by loan, capital contribution, purchase of securities or otherwise, and including any additional Investments) in any Person other than a Company Entity. Each of the Company’s Subsidiaries is duly organized or incorporated, as applicable, validly existing and (where applicable) in good standing under the laws of the jurisdiction of its incorporation or other organization, as applicable, posses...

Capitalization and Related Matters. (a) The authorized capital stock of Parent consists of 200,000,000 authorized shares of Parent Common Stock and 5,000,000 authorized shares of preferred stock, par value $0.01 per share (“Parent Preferred Stock”). As of 5:00 p.m. (Eastern time) on January 6, 2022 (the “Parent Capitalization Time”), 115,415,732 shares of Parent Common Stock were issued and outstanding and no shares of Parent Preferred Stock were issued and outstanding. As of the Parent Capitalization Time there were an aggregate of 4,388,281 shares of Parent Common Stock underlying issued and outstanding equity or equity-based awards (assuming maximum level of performance with respect to Parent restricted stock units). (b) The issued and outstanding shares of Parent Common Stock as of the Parent Capitalization Time (i) have been duly authorized and validly issued and are fully paid and nonassessable and (ii) were issued in compliance with all applicable U.S. federal and state securities laws in all material respects. As of the Parent Capitalization Time, except as set forth above in Section 4.6(a), no shares of capital stock of Parent are outstanding and Parent does not have outstanding any securities convertible into or exchangeable for any shares of capital stock of Parent, any rights to subscribe for or to purchase or any options for the purchase of, or any agreements providing for the issuance (contingent or otherwise) of, or any calls or commitments requiring the issuance of, any capital stock of Parent, or any stock or securities convertible into or exchangeable for any capital stock of Parent; and Parent is not subject to any obligation to repurchase or otherwise acquire or retire, or to register under the Securities Act, any shares of capital stock of Parent. As of the Parent Capitalization Time, Parent does not have outstanding any bonds, debentures, notes or other debt obligations the holders of which have the right to vote (or are convertible into or exercisable for securities having the right to vote) with the stockholders of Parent on any matter. Except as set forth above in Section 4.6(a), there are no outstanding stock options, restricted stock units, restricted stock, stock appreciation rights, “phantom” stock rights, performance units, or other compensatory rights or awards (in each case, issued by Parent or any of its Subsidiaries), that are convertible into or exercisable for a share of Parent Common Stock on a deferred basis or otherwise or other rights that are linked t...

Capitalization and Related Matters. (a) The authorized capital stock of the Company consists of 443,333,333 shares of Company Common Stock and 10,000,000 shares of preferred stock (the “Company Preferred Stock”). As of October 28, 2016, 359,917,389 shares of Company Common Stock were issued and outstanding, and there are no shares of Company Preferred Stock issued or outstanding. As of October 14, 2016, there were (i) 6,432,858 shares of Company Common Stock underlying outstanding and unvested Company RSU Awards, assuming maximum achievement of any applicable performance goals and (ii) 13,302,150 shares of Company Common Stock available for issuance under the Company Stock Plan (determined assuming maximum achievement of any applicable performance goals with respect to then-outstanding and unvested Company RSU Awards). (b) The issued and outstanding shares of Company Common Stock (i) have been duly authorized and validly issued and are fully paid and nonassessable and (ii) were issued in compliance with all applicable U.S. federal and state securities laws. Except as set forth above in Section 3.6(a), and except for (x) shares of Company Common Stock issued since October 14, 2016 pursuant to Company RSU Awards outstanding as of October 14, 2016 and (y) shares of the Company Common Stock issuable in the ordinary course of business consistent with past practice to satisfy a Company-match pursuant to any defined contribution Company Benefit Plan that contains a cash or deferred arrangement intended to meet the requirements of Section 401(k) of the Code, no shares of capital stock of the Company are issued and outstanding and the Company does not have outstanding any securities convertible into or exchangeable for any shares of capital stock of the Company, any rights to subscribe for or to purchase or any options for the purchase of, or any agreements providing for the issuance (contingent or otherwise) of, or any calls, commitments or known claims of any other character relating to the issuance of, any capital stock of the Company, or any stock or securities convertible into or exchangeable for any capital stock of the Company; and, other than pursuant to the Stockholder Rights Agreement, dated as of April 10, 2011, by and between the Company and the Stockholder, the Company is not subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire, or to register under the Securities Act, any shares of capital stock of the Company. The Company does not have outsta...

Capitalization and Related Matters. (a) As of the date hereof, the authorized capital stock of Parent consists of 50,000,000 shares of Parent Common Stock and 10,000,000 shares of Parent Preferred Stock. As of the date hereof: (i) 5,646,470 shares of Parent Common Stock are issued and outstanding and no shares of Parent Preferred Stock are issued and outstanding; (ii) 132,000 shares of Parent Common Stock are reserved for issuance and issuable upon or otherwise deliverable under the Parent’s 2005 Stock Incentive Plan (the “Parent Stock Plan”) or otherwise in connection with the exercise of outstanding options to purchase Parent Common Stock (“Parent Options”). Schedule 4.6(a)(ii) sets forth the names of all holders, the number of shares of Parent Common Stock covered thereof, the vesting schedule and the exercise prices for the Parent Options and the outstanding shares of restricted Parent Common Stock; and (iii) 334,669 shares of Parent Common Stock are reserved for issuance and issuable upon exercise of warrants to purchase Parent Common Stock (“Parent Warrants”). Schedule 4.6(a)(iii) sets forth the names of all holders of Parent Warrants, the number of shares of Parent Common Stock purchasable thereunder and the exercise price(s) therefor. (b) The outstanding shares of Parent Common Stock (i) have been duly authorized and validly issued and are fully paid and nonassessable and (ii) were issued in compliance with all applicable federal and state securities laws. All grants of Parent Options were validly issued and properly approved by Parent’s Board of Directors in accordance with all applicable law and no such grants involved any “backdating” or similar practices with respect to the effective date of grant. Except as set forth above in Section 4.6(a) or Schedule 4.6(b), no shares of capital stock of Parent are outstanding and Parent does not have outstanding any securities convertible into or exchangeable or exercisable for any shares of capital stock, including Parent Options, any rights to subscribe for or to purchase or any options for the purchase of, or any agreements providing for the issuance (contingent or otherwise) of, or any calls, commitments or known claims of any other character relating to the issuance of, any capital stock, or any stock or securities convertible into or exchangeable or exercisable for any capital stock; and Parent is not subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire, or to register under the Securities Act...

Capitalization and Related Matters. The authorized capital stock of the Acquiree consists of 50,000 Ordinary Shares, of which 100 shares are issued and outstanding. There are no outstanding or authorized options, warrants, calls, purchase agreements, participation agreements, subscription rights, conversion rights, exchange rights or other securities or contracts that could require the Acquiree to issue, sell or otherwise cause to become outstanding any of its authorized but unissued shares of capital stock or any securities convertible into, exchangeable for or carrying a right or option to purchase shares of capital stock or to create, authorize, issue, sell or otherwise cause to become outstanding any new class of capital stock. There are no outstanding stockholders’ agreements, voting trusts or arrangements, registration rights agreements, rights of first refusal or other contracts pertaining to the capital stock of the Acquiree. The issuance of all of the Ordinary Shares described in this Section 5.07 has been in compliance with the laws of the British Virgin Islands. All issued and outstanding shares of the Acquiree’s capital stock are duly authorized, validly issued, fully paid and nonassessable and have not been issued in violation of any preemptive or similar rights. The owners of the Ordinary Shares of the Acquiree own, and have good, valid and marketable title to, all the Ordinary Shares of the Acquiree. There are no outstanding contractual obligations (contingent or otherwise) of the Acquiree to retire, repurchase, redeem or otherwise acquire any outstanding shares of capital stock of, or other ownership interests in, the Acquiree or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any other Person.

Capitalization and Related Matters. (i) Schedule I sets forth the outstanding capital stock of the Company immediately following the Closing. Immediately following the consummation of the transactions contemplated hereby, the Company shall have no outstanding stock or securities convertible or exchangeable for stock or containing any profit participation features, nor shall it have outstanding any rights or options to subscribe for or to purchase its stock or any stock or securities convertible into or exchangeable for its stock or any stock appreciation rights or phantom stock plans, except as set forth on Schedule I. Immediately following the consummation of the transactions contemplated hereby and by the Ancillary Documents, all of the outstanding Purchased Shares of the Company shall be validly issued. (ii) The Company has no subsidiaries other than ER Acquisition, Inc. All of the authorized, issued and outstanding equity securities of ER Acquisition, Inc. are owned by the Company. (iii) The Company has not conducted any business prior to the date hereof and has no, and prior to the Closing Date will have no, assets, liabilities or obligations of any nature other than those incident to its formation and pursuant to this Agreement and the transactions contemplated by the Merger Documents and the Ancillary Agreements.

Capitalization and Related Matters. (a) Schedule 3.3(a) of the Disclosure Schedules sets forth as of the date hereof (i) the number of authorized shares of Common Stock (including Company Restricted Stock) and Preferred Stock and (ii) a true, correct and complete list of the record holders of the Common Stock and the Preferred Stock, listing for each Person including: (A) his, her or its name, and if not a natural person, its type of entity and jurisdiction of incorporation or organization, (B) the number of shares of Shares owned by such Person, and (C) with respect to Company Restricted Stock, the vesting status and schedule with respect to such Company Restricted Stock, the Company Equity Plan pursuant to which such Company Restricted Stock was granted, and whether a valid and timely election under Section 83(b) of the Code (an “83(b) Election”) was filed in connection with any such Company Restricted Stock. The Company has provided copies of all such 83(b) Elections. (b) Schedule 3.3(b) of the Disclosure Schedules sets forth, as of the date hereof, each outstanding Company Stock Option and, to the extent applicable: (i) the type of stock option (including whether an incentive or nonqualified stock option) and the name of the holder thereof, (ii) the number of shares of Common Stock issuable thereunder, (iii) the expiration date, (iv) the exercise price, (v) the grant date, (vi) the vesting schedule (including any acceleration terms applicable to such Company Stock Option and (vii) whether an 83(b) Election was timely remitted to the Internal Revenue Service. All Company Stock Options were issued pursuant to the Company Equity Plans. The Company has provided or otherwise made available to Buyer accurate and complete copies of the Company Equity Plans and the form of all award agreements evidencing the Company Equity Awards. (c) Schedule 3.3(c) of the Disclosure Schedules sets forth , as of the date hereof, each outstanding Company Warrant and, to the extent applicable: (i) the name of the holder thereof, (ii) the number of shares of Common Stock issuable thereunder, (iii) the expiration date, (iv) the exercise price, and (v) the grant date. (d) All of the Shares have been duly authorized and validly issued, and are fully paid and non-assessable. Immediately after the Closing, the Buyer shall own all of the outstanding Shares, free and clear of any Liens or any other restrictions on transfer, other than restrictions on transfer arising under applicable federal and state securities Laws. Ex...