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. Except as set forth on Schedule 3.3(b) and Schedule 3.3(a), there are no issued, reserved for issuance or outstanding (i) shares of capital stock of, or other equity or voting interests in, the Company; (ii) securities of the Company convertible into or exchangeable or exercisable for shares of capital stock of, or other equity or voting interests in, the Company or containing any profit participation features; or (iii) options, warrants, calls, subscriptions or other rights to acquire from the Company or other obligations of the Company to issue or allot, any capital stock or securities convertible into, or exchangeable or exercisable for, or evidencing the right to subscribe for, capital stock of, or other equity or voting interests in, the Company. There are no outstanding obligations of the Company to repurchase, redeem or otherwise acquire or retire for value any securities of the Company. There are no statutory or contractual equityholder preemptive or similar rights, rights of first refusal, rights of first offer or registration rights with respect to the Shares. Except for the Contracts to be terminated pursuant to Section 1.3(b)(iii), there are no agreements with respect to the voting or transfer of the Shares to which the Company is a party or, to the Knowledge of the Company, to which any Seller is a party. (e) Each Company Equity Plan and each Company Equity Award was duly approved by all necessary corporate action and in accordance with applicable Law. Each Company Equity Award was granted in accordance with the terms of the applicable Company Equity Plan and in compliance, in all material respects, with all applicable Laws. With respect to the Company Stock Options, (i) each grant was duly authorized no later than the date on which the grant of such option was by its terms to be effective on the date the option was granted by all necessary corporate action, (ii) each has an exercise price equal to no less than the fair market value of the underlying shares of Common Stock on the applicable grant date as determined by the Company’s board of directors in good faith, (iii) no Company Stock Option is subject to Section 409A of the Code, and (iv) each Company Stock Option intended to qualify as an “incentive stock option” under Section 422 of the Code so qualifies.
Appears in 1 contract
Capitalization and Related Matters. (a) Schedule 3.3(a) The authorized capital stock of the Disclosure Schedules sets forth Company consists of 15,000,000 shares of Company Common Stock, of which 5,485,392 shares have been issued and are outstanding as of the date hereof of this Agreement, and 1,000,000 shares of preferred stock, none of which have been issued and are outstanding as of the date of this Agreement. The Company holds 320,806 shares of its capital stock 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. Except as set forth in Section 2.1(a) of the Company Disclosure Schedule: (i) none of the number of authorized outstanding shares of Company Common Stock (including Company Restricted Stock) and Preferred Stock and is entitled or subject to any preemptive right, right of participation or any similar right; (ii) a true, correct and complete list none of the record holders outstanding shares of Company Common Stock is subject to any right of first refusal in favor of the Common Stock Company; and (iii) the Preferred Stock, listing for each Person including: (A) his, her or its name, and if Company is not a natural personparty to any Contract relating to the voting or registration of, its type or restricting any Person from purchasing, selling, pledging or otherwise disposing of entity and jurisdiction of incorporation (or organizationgranting any option or similar right with respect to), (B) the number of any 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 Common Stock. The Company has provided copies is not under any obligation, and is not bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of all such 83(b) ElectionsCompany Common Stock.
(b) Schedule 3.3(bAs of the date of this Agreement, (1) 327,387 shares of Company Common Stock are subject to issuance pursuant to Options granted and outstanding under the Stock Option Plans, and (2) 154,000 shares of Company Common Stock are subject to issuance pursuant to the Warrants. Section 2.1(b) of the Company Disclosure Schedules Schedule sets forth, forth the following information with respect to each Option that is outstanding 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 applicablethis Agreement: (i) the name of the holder thereof, optionee; (iiiii) the number of shares of Company Common Stock issuable thereunder, (iii) the expiration date, subject to such Option; (iv) the exercise price, price of such Option; and (v) the grant datedate on which the Option was granted. In addition, Section 2.1(b) of the Company Disclosure Schedule shall identify any outstanding Option that was not granted pursuant to a Stock Option Plan of the Company. The Company has made available to Parent accurate and complete copies of all plans and agreements pursuant to which the Company has issued outstanding Options.
(dc) 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. Except as set forth on Schedule 3.3(b) and Schedule 3.3(afor Options referred to in Section 2.1(b), there are is no issued, reserved for issuance or outstanding (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock of, or other equity or voting interests in, securities of the Company; , (ii) securities of the Company outstanding security, instrument or obligation that is or may become convertible into or exchangeable or exercisable for any shares of the capital stock of, or other equity or voting interests insecurities of the Company, the Company or containing any profit participation features; or (iii) options, warrants, calls, subscriptions or other stockholder rights to acquire from the Company or other obligations of the Company to issue or allot, any capital stock or securities convertible into, or exchangeable or exercisable for, or evidencing the right to subscribe for, capital stock of, or other equity or voting interests in, the Company. There are no outstanding obligations of the Company to repurchase, redeem or otherwise acquire or retire for value any securities of the Company. There are no statutory or contractual equityholder preemptive plan (or similar rights, rights of first refusal, rights of first offer plan commonly referred to as a "poison pill") or registration rights with respect to the Shares. Except for the Contracts to be terminated pursuant to Section 1.3(b)(iii), there are no agreements with respect to the voting or transfer of the Shares to Contract under which the Company is a party or, or may become obligated to the Knowledge of the Company, to which sell or otherwise issue any Seller is a party.
(e) Each Company Equity Plan and each Company Equity Award was duly approved by all necessary corporate action and in accordance with applicable Law. Each Company Equity Award was granted in accordance with the terms of the applicable Company Equity Plan and in compliance, in all material respects, with all applicable Laws. With respect to the Company Stock Options, (i) each grant was duly authorized no later than the date on which the grant of such option was by its terms to be effective on the date the option was granted by all necessary corporate action, (ii) each has an exercise price equal to no less than the fair market value of the underlying shares of Common Stock on the applicable grant date as determined by the Company’s board of directors in good faith, (iii) no Company Stock Option is subject to Section 409A of the Code, and (iv) each Company Stock Option intended to qualify as an “incentive its capital stock option” under Section 422 of the Code so qualifiesor any other securities.
Appears in 1 contract
Capitalization and Related Matters. (a) Schedule 3.3(a) The authorized capital stock of the Disclosure Schedules sets forth as Company consists of the date hereof (i) the number of authorized 10,000,000 shares of Common Stock (including Company Restricted Stock) and Preferred Stock and (ii) each, a true“Share” and, 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 Stockcollectively, the vesting status and schedule with respect to “Shares”). Of 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 forthauthorized shares, as of the date hereof, each there are issued and outstanding Company Stock Option and1,119,931 shares of Common Stock. At the close of business on October 28, to the extent applicable: (i) the type 2013, there were an aggregate of stock option (including whether an incentive or nonqualified stock option) and the name of the holder thereof, (ii) the number of 94,794 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 subject to such outstanding 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 AwardsOptions.
(cb) Schedule 3.3(c2.3(b) lists each holder of the Disclosure Schedules sets forth Shares, the number of Shares owned by each Shareholder as of the date hereof, each outstanding Company Warrant andand whether any of such Shares are unvested or subject to a repurchase option, to the extent applicable: (i) the name risk of forfeiture or other contractual right as of the holder thereofdate hereof. All Shares of capital stock in the Company are owned by the Shareholders, (ii) the number of shares of Common Stock issuable thereunder, (iii) the expiration date, (iv) the exercise pricerecord and beneficially, and (v) the grant date.
(d) All Shares constitute the only issued and outstanding capital stock of the Shares have been duly authorized and validly issued, and are fully paid and non-assessableCompany. Immediately after To the Closing, the Buyer shall own all knowledge of the outstanding SharesCompany, each Shareholder owns his, her or its Shares in the Company free and clear of any Liens lien, claim, encumbrance, security interest, charge, pledge, equitable interest or other restriction or adverse claim of whatever nature, including any restrictions on use, transfer, receipt of income, voting or exercise of any other restrictions on transferattribute of ownership (collectively, other than restrictions on transfer arising under applicable federal and state securities Laws“Liens”). Except as set forth on Schedule 3.3(b) and Schedule 3.3(a2.3(b), all of the Shares (i) were duly authorized and validly issued; (ii) are fully paid and non-assessable without restriction on the right of transfer thereof; and (iii) were not, when issued, subject to any unwaived preemptive rights.
(c) Schedule 2.3(c)(i) lists each outstanding and unexercised Company Option, the holder thereof, the date of grant, the total number of shares of the Company’s Common Stock covered thereby, the vesting schedule, the number of shares of the Company’s Common Stock available for exercise thereunder as of the date hereof, the exercise price immediately prior to the Effective Time and, separately, at the Effective Time reflecting any acceleration of vesting or adjustment to the exercise price of such Company Option as a result of the Merger. Schedule 2.3(c)(ii) lists each exercised Company Option pursuant to which the Shares issued upon the exercise of such Company Option are not fully vested or otherwise remain subject to a repurchase option, risk of forfeiture or other similar contractual right as of the date hereof, the holder thereof, the exercise price, the number of Shares acquired upon exercise thereof, the dates of grant and exercise, the stock purchase agreement entered into in connection therewith, and any vesting schedule, including any acceleration of vesting as a result of the Merger.
(d) Except for the Company Options, (i) there are no issued, reserved for issuance authorized or outstanding (i) shares of capital stock of, or other equity or voting interests in, the Company; (iiA) securities of the Company convertible into or exchangeable or exercisable for shares of capital other than the Shares, (B) warrants, preemptive rights, calls, options, stock of, purchase rights or other equity or voting interests in, rights with respect to any securities of the Company or containing any profit participation features; securities or (iii) options, warrants, calls, subscriptions or other rights to acquire from the Company or other obligations of the Company to issue or allot, any capital stock or securities right convertible into, or exchangeable or exercisable for, or evidencing the right to subscribe for, any shares of the Company’s capital stock ofstock, or other equity (C) stock appreciation, phantom rights, profit participation or voting interests in, similar rights with respect to the Company. There are no outstanding obligations , and (ii) neither the Company nor to the knowledge of the Company any of the Shareholders is subject to any obligation to issue, sell, deliver, redeem, or otherwise transfer, acquire, repurchase, redeem or otherwise acquire or retire for value the Shares or any other securities of the Company. There are no statutory shareholder agreements, buy-sell agreements, voting trusts or contractual equityholder preemptive other agreements or similar rightsunderstandings to which the Company or any Subsidiary of the Company is a party or by which it is, rights of first refusal, rights of first offer or registration rights with respect to the Shares. Except for the Contracts to be terminated pursuant to Section 1.3(b)(iii), there are no agreements with respect to the voting or transfer any of the Shares are, bound, any such agreements previously in effect having been terminated on the date hereof.
(e) The Company Options may, in accordance with their respective terms, be treated in the manner provided for in this Agreement.
(f) All of the Shares, Company Options and other securities of the Company have been issued in accordance with applicable federal and state securities laws. The transactions contemplated by this Agreement are not subject to any preemptive rights.
(g) When paid in accordance with and subject to the terms of this Agreement, each of the amounts payable to the Shareholders under Section 1.5 has been calculated and will be paid in accordance with and subject to all terms of the Articles of Incorporation of the Company, all applicable Laws and any other agreements to which the Company is a party or, to the Knowledge of the Companyparty, to which any Seller is a party.
(e) Each Company Equity Plan and each Company Equity Award was duly approved by all necessary corporate action and in accordance with applicable Law. Each Company Equity Award was granted in accordance with the terms of the applicable Company Equity Plan and in compliance, in all material respects, with all applicable Laws. With respect to the Company Stock Options, (i) each grant was duly authorized no later than the date on is subject or by which the grant of such option was by its terms to be effective on the date the option was granted by all necessary corporate action, (ii) each has an exercise price equal to no less than the fair market value of the underlying shares of Common Stock on the applicable grant date as determined by the Company’s board of directors in good faith, (iii) no Company Stock Option is subject to Section 409A of the Code, and (iv) each Company Stock Option intended to qualify as an “incentive stock option” under Section 422 of the Code so qualifiesbound.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Ixia)
Capitalization and Related Matters. (a1) Schedule 3.3(a) As of the Disclosure Schedules sets opening of business on the date of this Agreement, and from the opening of business on such date until immediately prior to the Closing on the Closing Date, the capitalization of the Company shall be as set forth on Schedule 3.03(a)(1); and (2) as of immediately following the Closing and the Debenture Exchange, the capitalization of the Company (including the number of Fully-Diluted Shares as of immediately following the Closing and the Debenture Exchange) shall be as set forth on Schedule 3.03(a)(2); in each case, assuming that during the period beginning as of immediately prior to the opening of business on the date hereof of this Agreement and ending on the Closing Date: (i) none of the number of authorized shares of Common Stock (including Company Restricted Stock) and Preferred Stock and Debentures are converted; (ii) a true, correct and complete list none of the record holders 2024 Warrants and none of the Common Stock and options outstanding under the Preferred Stock, listing for each Person including: Company’s 2019 Incentive Award Plan are exercised; (Aiii) his, her or its name, and if not a natural person, its type none of entity and jurisdiction of incorporation or organization, (B) the number of shares of Shares owned by such Person, restricted stock units outstanding under the Company’s 2019 Incentive Award Plan vest; and (Civ) with respect to Company Restricted Stock, no awards outstanding under the vesting status and schedule with respect to such Company Restricted Stock, the Company Equity Company’s 2019 Incentive Award 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) Electionsare forfeited.
(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. Except as set forth on Schedule 3.3(b3.03(b) and Schedule 3.3(a)as contemplated by the Transaction Agreements, there are no issued, reserved for issuance or outstanding (i) shares of capital stock of, or other equity or voting interests inthan the 2024 Warrants, the Company; Debentures and the Contingent Shares, no Company Entity has outstanding any securities (iiincluding options, warrants, purchase rights, subscription rights, conversion rights or similar rights) securities of the Company convertible into or exchangeable or exercisable for shares any of capital stock of, or other equity or voting interests in, the Company its Equity Securities or containing any profit participation features; , nor any rights or (iii) options to subscribe for or to purchase its Equity Securities or any securities convertible into or exchangeable for its Equity Securities or any equity appreciation rights or phantom equity plan, nor any promises to issues any such securities, rights or options, warrants, calls, subscriptions or other rights to acquire from the Company or other obligations (ii) none of the Company Entities are, and immediately following the Closing none will be, subject to issue any obligation (contingent or allot, any capital stock or securities convertible into, or exchangeable or exercisable for, or evidencing the right to subscribe for, capital stock of, or other equity or voting interests in, the Company. There are no outstanding obligations of the Company otherwise) to repurchase, redeem or otherwise acquire or retire for value any securities Equity Securities or make or pay any dividends or distributions in respect of any Equity Securities, (iii) there are no, and immediately following the Company. There are no Closing there will not be, any, statutory or contractual equityholder preemptive or similar rights, co-sale rights, rights of first refusal, refusal or similar rights of first offer or registration rights restrictions with respect to the Shares. Except for Equity Securities of any Company Entity, (iv) no Company Entity has violated any applicable federal, provincial or state securities Laws in connection with the Contracts to be terminated pursuant to Section 1.3(b)(iii)offer, sale or issuance of any of its Equity Securities, and (v) other than the Stockholders’ Agreement, dated December 19, 2019, by and among Pivotal Acquisition Corp., affiliates of Carlyle Equity Opportunity GP, L.P. and Revolution Growth III, LP and certain other signatories thereto, as amended and the Existing RRA, there are no agreements among the Company and the holders of Equity Securities of the Company Entities, or among the Company and any other Persons, or, to the actual knowledge of the Company’s management, among holders of Equity Securities of the Company, in each case, 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. All of the outstanding Equity Securities of each Company Entity are, and immediately following the Closing shall be, duly authorized, validly issued, fully paid and non-assessable. Subject only to the Company Stockholder Approval, the Consideration Shares to which be issued at the Company is a party orClosing have been duly authorized and, to the Knowledge of the Company, to which any Seller is a party.
(e) Each Company Equity Plan when issued and each Company Equity Award was duly approved by all necessary corporate action and in accordance with applicable Law. Each Company Equity Award was granted delivered in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable and the applicable Company issuance thereof is not subject to any preemptive or other similar right.
(c) Schedule 3.03(c) sets forth each Subsidiary of the Company, including the name of each Subsidiary of the Company, the jurisdiction of its incorporation or organization, as applicable, and the Person(s) owning the outstanding Equity Plan and in compliance, in all material respects, with all applicable Laws. With respect to the Company Stock Options, (i) each grant was duly authorized no later than the date on which the grant Securities of such option was Subsidiary. No Company Entity has any obligation to make any Investment (whether by its terms to be effective on the date the option was granted by all necessary corporate actionloan, (ii) each has an exercise price equal to no less than the fair market value capital contribution, purchase of the underlying shares of Common Stock on the applicable grant date as determined by the Company’s board of directors in good faith, (iii) no Company Stock Option is subject to Section 409A of the Codesecurities or otherwise, and (ivincluding any additional Investments) each Company Stock Option intended to qualify as an “incentive stock option” under Section 422 of the Code so qualifiesin any Person.
Appears in 1 contract
Capitalization and Related Matters. (a1) Schedule 3.3(a) As of the Disclosure Schedules sets opening of business on the date of this Agreement, and from the opening of business on such date until immediately prior to the Closing on the Closing Date, the capitalization of the Company shall be as set forth on Schedule 3.03(a)(1); and (2) as of immediately following the Closing and the Debenture Exchange, the capitalization of the Company (including the number of Fully-Diluted Shares as of immediately following the Closing and the Debenture Exchange) shall be as set forth on Schedule 3.03(a)(2); in each case, assuming that during the period beginning as of immediately prior to the opening of business on the date hereof of this Agreement and ending on the Closing Date: (i) none of the number of authorized shares of Common Stock (including Company Restricted Stock) and Preferred Stock and Debentures are converted; (ii) a true, correct and complete list none of the record holders 2024 Warrants and none of the Common Stock and options outstanding under the Preferred Stock, listing for each Person including: Company’s 2019 Incentive Award Plan are exercised; (Aiii) his, her or its name, and if not a natural person, its type none of entity and jurisdiction of incorporation or organization, (B) the number of shares of Shares owned by such Person, restricted stock units outstanding under the Company’s 2019 Incentive Award Plan vest; and (Civ) with respect to Company Restricted Stock, no awards outstanding under the vesting status and schedule with respect to such Company Restricted Stock, the Company Equity Company’s 2019 Incentive Award 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) Electionsare forfeited.
(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. Except as set forth on Schedule 3.3(b3.03(b) and Schedule 3.3(a)as contemplated by the Transaction Agreements, there are no issued, reserved for issuance or outstanding (i) shares of capital stock of, or other equity or voting interests inthan the 2024 Warrants, the Company; Debentures and the Contingent Shares, no Company Entity has outstanding any securities (iiincluding options, warrants, purchase rights, subscription rights, conversion rights or similar rights) securities of the Company convertible into or exchangeable or exercisable for shares any of capital stock of, or other equity or voting interests in, the Company its Equity Securities or containing any profit participation features; , nor any rights or (iii) options to subscribe for or to purchase its Equity Securities or any securities convertible into or exchangeable for its Equity Securities or any equity appreciation rights or phantom equity plan, nor any promises to issues any such securities, rights or options, warrants, calls, subscriptions or other rights to acquire from the Company or other obligations (ii) none of the Company Entities are, and immediately following the Closing none will be, subject to issue any obligation (contingent or allot, any capital stock or securities convertible into, or exchangeable or exercisable for, or evidencing the right to subscribe for, capital stock of, or other equity or voting interests in, the Company. There are no outstanding obligations of the Company otherwise) to repurchase, redeem or otherwise acquire or retire for value any securities Equity Securities or make or pay any dividends or distributions in respect of any Equity Securities, (iii) there are no, and immediately following the Company. There are no Closing there will not be, any, statutory or contractual equityholder preemptive or similar rights, co-sale rights, rights of first refusal, refusal or similar rights of first offer or registration rights restrictions with 107514262.13 respect to the Shares. Except for Equity Securities of any Company Entity, (iv) no Company Entity has violated any applicable federal, provincial or state securities Laws in connection with the Contracts to be terminated pursuant to Section 1.3(b)(iii)offer, sale or issuance of any of its Equity Securities, and (v) other than the Stockholders’ Agreement, dated December 19, 2019, by and among Pivotal Acquisition Corp., affiliates of Carlyle Equity Opportunity GP, L.P. and Revolution Growth III, LP and certain other signatories thereto, as amended and the Existing RRA, there are no agreements among the Company and the holders of Equity Securities of the Company Entities, or among the Company and any other Persons, or, to the actual knowledge of the Company’s management, among holders of Equity Securities of the Company, in each case, 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. All of the outstanding Equity Securities of each Company Entity are, and immediately following the Closing shall be, duly authorized, validly issued, fully paid and non-assessable. Subject only to the Company Stockholder Approval, the Consideration Shares to which be issued at the Company is a party orClosing have been duly authorized and, to the Knowledge of the Company, to which any Seller is a party.
(e) Each Company Equity Plan when issued and each Company Equity Award was duly approved by all necessary corporate action and in accordance with applicable Law. Each Company Equity Award was granted delivered in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable and the applicable Company issuance thereof is not subject to any preemptive or other similar right.
(c) Schedule 3.03(c) sets forth each Subsidiary of the Company, including the name of each Subsidiary of the Company, the jurisdiction of its incorporation or organization, as applicable, and the Person(s) owning the outstanding Equity Plan and in compliance, in all material respects, with all applicable Laws. With respect to the Company Stock Options, (i) each grant was duly authorized no later than the date on which the grant Securities of such option was Subsidiary. No Company Entity has any obligation to make any Investment (whether by its terms to be effective on the date the option was granted by all necessary corporate actionloan, (ii) each has an exercise price equal to no less than the fair market value capital contribution, purchase of the underlying shares of Common Stock on the applicable grant date as determined by the Company’s board of directors in good faith, (iii) no Company Stock Option is subject to Section 409A of the Codesecurities or otherwise, and (ivincluding any additional Investments) each Company Stock Option intended to qualify as an “incentive stock option” under Section 422 of the Code so qualifiesin any Person.
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Capitalization and Related Matters. (a) Schedule 3.3(a) of the Disclosure Schedules sets forth as of the date hereof (i) the number of The 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 capital 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 consists of all award agreements evidencing the Company Equity Awards.
two million (c2,000,000) 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 thereundercommon stock, (iii) of which 957,012 shares are issued and outstanding and constitute the expiration date, (iv) the exercise price, and (v) the grant date.
(d) Shares. All of the Shares have been duly authorized and validly issued, and are fully paid and non-assessable, and are owned of record and beneficially by Sellers, 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. 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, transfer other than restrictions on transfer arising under applicable federal and state securities Laws.
(b) Schedule 3.3(b) contains a complete and correct list of each outstanding Company Option, including (i) the holder, (ii) the date of grant, (iii) the number of shares of Company common stock subject to such Company Option at the time of grant, (iv) the number of shares of Company common stock subject to such Company Option as of the date of this Agreement, (v) the exercise price per share of Company common stock subject to such Company Option, (vi) the vesting schedule (including the number of vested and unvested shares of Company common stock subject to such Company Option as of the date of this Agreement), (vii) whether such Company Option constitutes an “incentive stock option” within the meaning of Section 422 of the Code, (viii) the date on which such Company Option expires and (ix) any accelerated vesting provisions (including specifying whether the vesting of such Company Option shall be subject to any acceleration in connection with the transactions contemplated by this Agreement). Except Accurate and complete copies of each agreement evidencing a Company Option has been made available to Buyer. All Company Options have been appropriately authorized by the Company’s Board of Directors or an appropriate committee thereof as of the applicable date of grant, including approval of the option exercise price or the methodology for determining the option exercise price and the substantive award terms, and have otherwise been granted in all material respects in compliance with applicable Law and the terms set forth in applicable Contracts. Each Company Option may, by its terms, be treated at the Closing as set forth in Section 1.2(a).All Company Options have an exercise price that has never been and is not less than the fair market value of the Company common stock on the date the Company Option was granted (within the meaning of United States Treasury Regulation §1.409A-1(b)(5)(vi)(B)). No Company Options have been retroactively granted, nor has the exercise price of any Company Option been determined retroactively or in contravention of any applicable Law.
(c) Each Optionholder is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated by the Securities and Exchange Commission, as presently in effect under the Securities Act. Other than the Shares described in Section 3.3(a) and the Company Options disclosed on Schedule 3.3(b) and Schedule 3.3(a)of the Disclosure Schedules, there are no issued, reserved for issuance or outstanding (i) shares of capital stock of, or other equity or voting interests in, the Company; (ii) securities of the Company convertible into or exchangeable or exercisable for shares of capital stock of, or other equity or voting interests in, the Company or containing any profit participation features; or (iii) outstanding or promised options, restricted stock units, warrants, calls, subscriptions or other rights to acquire from the Company or other obligations of the Company to issue or allot, any capital stock or securities convertible into, or exchangeable or exercisable for, or evidencing the right to subscribe for, capital stock of, or other equity or voting interests in, the Company. There are no outstanding obligations of the Company to repurchase, redeem or otherwise acquire or retire for value any securities of the Company. There are no statutory or contractual equityholder preemptive or similar rights, rights of first refusal, rights of first offer or registration rights with respect to the Shares. Except for the Contracts to be terminated pursuant to Section 1.3(b)(iii), there There are no agreements with respect to the voting or transfer of the Shares to which the Company is a party orparty. Other than the Company Options disclosed on Schedule 3.3(b) of the Disclosure Schedules and other options granted by the Company that been exercised or expired, the Company has not at any time issued or granted, and there are no outstanding or authorized, compensatory equity or equity-linked interests with respect to the Knowledge of capital stock of, or other equity or voting interests in, the Company, to which including without limitation, any Seller is a partyoptions, appreciation rights, restricted stock or stock unit awards, phantom equity or similar awards or rights.
(e) Each Company Equity Plan and each Company Equity Award was duly approved by all necessary corporate action and in accordance with applicable Law. Each Company Equity Award was granted in accordance with the terms of the applicable Company Equity Plan and in compliance, in all material respects, with all applicable Laws. With respect to the Company Stock Options, (i) each grant was duly authorized no later than the date on which the grant of such option was by its terms to be effective on the date the option was granted by all necessary corporate action, (ii) each has an exercise price equal to no less than the fair market value of the underlying shares of Common Stock on the applicable grant date as determined by the Company’s board of directors in good faith, (iii) no Company Stock Option is subject to Section 409A of the Code, and (iv) each Company Stock Option intended to qualify as an “incentive stock option” under Section 422 of the Code so qualifies.
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