Capitalization and Related Matters. (i) The authorized share capital of the Company consists of 600,000,000 shares, consisting of (i) 500,000,000 Common Shares and (ii) 100,000,000 Preferred Shares. (ii) As of the close of business on August 15, 2016 (the “Capitalization Date”), 23,624,014 Common Shares were issued and outstanding, and there were no Preferred Shares issued or outstanding. (iii) As of the Capitalization Date, Company Share Awards representing 2,319,471 Common Shares not subject to performance based vesting were issued and outstanding, Company Share Awards representing 659,800 Common Shares subject to performance based vesting (based on the maximum level of performance) were issued and outstanding, Company Share Options representing 3,185,313 Common Shares were issued and outstanding, of which 2,995,414 were vested and exercisable as of the Capitalization Date, and Company Warrants convertible into 2,000,000 Common Shares were exercisable. (iv) Section 3.6(a)(iv) of the Disclosure Letter sets forth as of the close of business on the Capitalization Date a list of each outstanding Company Equity Award and Company Warrant and (A) the name of the holder of such Company Equity Award and Company Warrant, (B) the number of Common Shares subject to such outstanding Company Equity Award (based on the maximum level of performance for each Company Share Award that is subject to performance based vesting), (C) the date on which such Company Equity Award and Company Warrant was granted or issued, (D) the exercise price of each Company Share Option and Company Warrant, (E) the expiration date of each Company Share Option and Company Warrant, (F) the extent to which such Company Equity Award is vested as of such date, (G) if such Company Equity Award has performance-vesting criteria and (H) the amount of accrued dividend equivalents with respect to each Company Share Award and Company Warrant. (v) Section 3.6(a)(v) of the Disclosure Letter sets forth as of the close of business on the Capitalization Date the aggregate exercise price of all Company Share Options that have a per share exercise price that is less than the Merger Consideration. (i) The outstanding Common Shares have been, and all Common Shares which may be issued pursuant to the exercise or settlement of outstanding Company Equity Awards and Company Warrants are or will be when issued, duly authorized and validly issued and are fully paid, and an acquirer of Common Shares has no obligation to make further payments for its purchase of Common Shares or contributions to the Company solely by reason of the Common Shares or its status as a member of a limited liability company. (ii) Except for the Common Shares issued and outstanding as of the Capitalization Date as set forth in Section 3.6(a) (and any Common Shares issued following such date and prior to the date hereof upon the settlement or exercise of Company Equity Awards or Company Warrants), and the Company Equity Awards and Company Warrants listed on Section 3.6(a) of the Disclosure Letter, as of the date hereof, except as set forth on Section 3.6(b) of the Disclosure Letter, no equity interests of the Company are outstanding and neither the Company nor any Subsidiary thereof has outstanding (A) any securities convertible into or exchangeable for any shares of equity interests of the Company, (B) 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 warrants, calls, repurchase rights, voting rights, commitments or claims of any other character relating to the issuance of, any equity interests of the Company or any stock or securities convertible into or exchangeable for any such equity interests, or (C) any stock appreciation rights, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any equity interests of the Company (the items in clauses (A), (B) and (C) immediately above, together with the Common Shares, being referred to herein collectively as the “Company Securities”). (iii) Neither the Company nor any Subsidiary thereof is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire, to grant any Person a right to subscribe for or acquire, or to register under the Securities Act, any Company Securities. (iv) Neither the Company nor any Subsidiary thereof has outstanding any bonds, debentures, notes or other similar 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 Shareholders of the Company or any such Subsidiary on any matter.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Cifc LLC)
Capitalization and Related Matters. (ia) The As of the date hereof, the authorized share capital stock of the Company consists of 600,000,000 shares, consisting 27,000,000 shares of Company Common Stock and 13,000,000 shares of Company Preferred Stock. As of the date hereof:
(i) 500,000,000 9,225,000 shares of Company Common Shares Stock are issued and (ii) 100,000,000 outstanding and 11,596,382 shares of Company Preferred Shares.Stock are issued and outstanding; and
(ii) As 551,075 shares of Company Common Stock are reserved for issuance and issuable upon or otherwise deliverable under the close of business on August 15Company’s 2004 Stock Incentive Plan, 2016 2005 Stock Incentive Plan and 2006 Stock Incentive Plan (collectively, the “Capitalization DateCompany Stock Plans”)) or otherwise in connection with the exercise of outstanding Company Options and the vesting of outstanding Other Stock Awards. Schedule 3.6(a)(ii) sets forth the names of all holders, 23,624,014 the number of shares of Company Common Shares were issued Stock covered thereby, the vesting schedule and outstanding, the exercise prices for the Company Options and there were no Preferred Shares issued or outstandingthe outstanding Other Stock Awards.
(iiib) As The outstanding shares of the Capitalization Date, Company Share Awards representing 2,319,471 Common Shares not subject to performance based vesting were issued and outstanding, Company Share Awards representing 659,800 Common Shares subject to performance based vesting (based on the maximum level of performance) were issued and outstanding, Company Share Options representing 3,185,313 Common Shares were issued and outstanding, of which 2,995,414 were vested and exercisable as of the Capitalization Date, Stock and Company Warrants convertible into 2,000,000 Common Shares were exercisable.
(iv) Section 3.6(a)(iv) of the Disclosure Letter sets forth as of the close of business on the Capitalization Date a list of each outstanding Company Equity Award and Company Warrant and (A) the name of the holder of such Company Equity Award and Company Warrant, (B) the number of Common Shares subject to such outstanding Company Equity Award (based on the maximum level of performance for each Company Share Award that is subject to performance based vesting), (C) the date on which such Company Equity Award and Company Warrant was granted or issued, (D) the exercise price of each Company Share Option and Company Warrant, (E) the expiration date of each Company Share Option and Company Warrant, (F) the extent to which such Company Equity Award is vested as of such date, (G) if such Company Equity Award has performance-vesting criteria and (H) the amount of accrued dividend equivalents with respect to each Company Share Award and Company Warrant.
(v) Section 3.6(a)(v) of the Disclosure Letter sets forth as of the close of business on the Capitalization Date the aggregate exercise price of all Company Share Options that have a per share exercise price that is less than the Merger Consideration.
Preferred Stock (i) The outstanding Common Shares have been, and all Common Shares which may be issued pursuant to the exercise or settlement of outstanding Company Equity Awards and Company Warrants are or will be when issued, been duly authorized and validly issued and are fully paid, paid and an acquirer of Common Shares has no obligation to make further payments for its purchase of Common Shares or contributions to the Company solely by reason of the Common Shares or its status as a member of a limited liability company.
nonassessable and (ii) Except for the Common Shares were issued in compliance with all applicable federal and state securities laws. All grants of Company Options and Other Stock Awards were validly issued and outstanding as properly approved by the Company’s Board of Directors in accordance with all applicable law and no such grants involved any “backdating” or similar practices with respect to the Capitalization Date effective date of grant. Except as set forth above in Section 3.6(a) (and any Common Shares issued following such date and prior to the date hereof upon the settlement or exercise of Company Equity Awards or Company WarrantsSchedule 3.6(b), and the Company Equity Awards and Company Warrants listed on Section 3.6(a) no shares of the Disclosure Letter, as of the date hereof, except as set forth on Section 3.6(b) of the Disclosure Letter, no equity interests capital stock of the Company are outstanding and neither the Company nor any Subsidiary thereof has does not have outstanding (A) any securities convertible into or exchangeable or exercisable for any shares of equity interests of the Companycapital stock, (B) including Company 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 warrants, 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 the Company is not subject to any obligation (contingent or otherwise) to repurchase rightsor otherwise acquire or retire, voting rightsor to register under the Securities Act, any shares of capital stock. Except as set forth above in Section 3.6(a), the Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter.
(c) All of the outstanding shares of capital stock of, or membership interests or other ownership interests in, each Subsidiary of the Company, as applicable, are validly issued, fully paid and nonassessable and are owned of record and beneficially by the Company, directly or indirectly. The Company has, as of the date hereof and shall have on the Closing Date, valid and marketable title to all of the shares of capital stock of, or membership interests or other ownership interests in, each Subsidiary of the Company, free and clear of any Liens other than Permitted Liens. Such outstanding shares of capital stock of, or membership interests or other ownership interests in, the Subsidiaries of the Company, as applicable, are the sole outstanding securities of such Subsidiaries; the Subsidiaries of the Company do not have outstanding any securities convertible into or exchangeable or exercisable for any capital stock of, or membership interests or other ownership interests in, such Subsidiaries, 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 claims of any other character relating to the issuance of, any equity capital stock of, or membership interests of the Company or other ownership interests in, such Subsidiaries, or any stock or securities convertible into or exchangeable or exercisable for any such equity interests, or (C) any capital stock appreciation rights, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits basedmembership interests or other ownership interests in, directly or indirectly, on the value or price of, any equity interests of such Subsidiaries; and neither the Company (the items in clauses (A), (B) and (C) immediately above, together with the Common Shares, being referred to herein collectively as the “Company Securities”).
(iii) Neither the Company nor or any Subsidiary thereof of its Subsidiaries is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire, to grant any Person a right to subscribe for or acquire, or to register under the Securities Act, any Company Securities.
(iv) Neither the Company nor capital stock of, or membership interests or other ownership interests in, any Subsidiary thereof has outstanding any bonds, debentures, notes or other similar 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 Shareholders of the Company or any such Subsidiary on any matterCompany.
Appears in 2 contracts
Sources: Merger Agreement (Babyuniverse, Inc.), Merger Agreement (eToys Direct, Inc.)
Capitalization and Related Matters. (ia) The As of the date hereof, the authorized share capital stock of the Company consists of 600,000,000 shares, consisting 1,600,000,000 shares of Company Common Stock and 200,000,000 shares of Company Preferred Stock. As of the date hereof:
(i) 500,000,000 89,954,431 shares of Company Common Shares and (ii) 100,000,000 Preferred Shares.
(ii) As of the close of business on August 15, 2016 (the “Capitalization Date”), 23,624,014 Common Shares were Stock are issued and outstanding, and there were are no shares of Company Preferred Shares Stock issued or outstanding.;
(ii) 4,807,071 shares of Company Common Stock are reserved for issuance and issuable upon or otherwise deliverable under the Company’s Second Amended 1997 Stock Option Plan, 2000 Long Term Incentive Plan and Employee Stock Purchase Plan (collectively, the “Company Stock Plans”) in connection with the exercise of outstanding Company Options and the vesting of outstanding Other Stock Awards. Schedule 3.6(a)(ii) sets forth the exercise prices for the Company Options;
(iii) As 13,638,600 shares of the Capitalization Date, Company Share Awards representing 2,319,471 Common Shares not subject to performance based vesting were issued Stock are reserved for issuance and outstanding, Company Share Awards representing 659,800 Common Shares subject to performance based vesting (based on the maximum level of performance) were issued and outstanding, Company Share Options representing 3,185,313 Common Shares were issued and outstanding, of which 2,995,414 were vested and exercisable issuable as of the Capitalization Date, and Company Warrants convertible into 2,000,000 Common Shares were exercisable.date hereof upon conversion of the Company’s 3.125% Convertible Senior Debentures due 2006 (the “Convertible Debentures”); and
(iv) Section 3,820,980 shares of Company Common Stock are reserved for issuance and 3,820,980 shares of Company Common Stock are issuable upon exercise of the Company Warrants. Schedule 3.6(a)(iv) of the Disclosure Letter sets forth as the names of the close all holders of business on the Capitalization Date a list of each outstanding Company Equity Award and Company Warrant and (A) the name of the holder of such Company Equity Award and Company WarrantWarrants, (B) the number of shares of Company Common Shares subject to such outstanding Company Equity Award (based on the maximum level of performance for each Company Share Award that is subject to performance based vesting), (C) the date on which such Company Equity Award Stock purchasable thereunder and Company Warrant was granted or issued, (D) the exercise price of each Company Share Option and Company Warrant, (Eprice(s) the expiration date of each Company Share Option and Company Warrant, (F) the extent to which such Company Equity Award is vested as of such date, (G) if such Company Equity Award has performance-vesting criteria and (H) the amount of accrued dividend equivalents with respect to each Company Share Award and Company Warranttherefor.
(vb) Section 3.6(a)(v) The outstanding shares of the Disclosure Letter sets forth as of the close of business on the Capitalization Date the aggregate exercise price of all Company Share Options that have a per share exercise price that is less than the Merger Consideration.
Common Stock (i) The outstanding Common Shares have been, and all Common Shares which may be issued pursuant to the exercise or settlement of outstanding Company Equity Awards and Company Warrants are or will be when issued, been duly authorized and validly issued and are fully paid, paid and an acquirer of Common Shares has no obligation to make further payments for its purchase of Common Shares or contributions to the Company solely by reason of the Common Shares or its status as a member of a limited liability company.
nonassessable and (ii) Except for the Common Shares were issued in compliance with all applicable federal and state securities laws. All grants of Company Options and Other Stock Awards were validly issued and outstanding as properly approved by the Company’s Board of Directors in accordance with all applicable law and no such grants involved any “backdating” or similar practices with respect to the Capitalization Date effective date of grant. Except as set forth above in Section 3.6(a) (and any Common Shares issued following such date and prior to the date hereof upon the settlement or exercise of Company Equity Awards or Company Warrants), and the Company Equity Awards and Company Warrants listed on Section 3.6(a) of the Disclosure Letter, as of the date hereof, except as set forth on Section 3.6(b) no shares of the Disclosure Letter, no equity interests capital stock of the Company are outstanding and neither outstanding. Except as set forth above in Section 3.6(a) or as required pursuant to Section 5.5 of this Agreement, the Company nor any Subsidiary thereof has does not have outstanding (A) any securities convertible into or exchangeable for any shares of equity interests of the Companycapital stock, (B) including Company 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 warrants, 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 for any capital stock; and the Company is not subject to any obligation (contingent or otherwise) to repurchase rightsor otherwise acquire or retire, voting rightsor to register under the Securities Act, any shares of capital stock. Except as set forth above in Section 3.6(a), the Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter. True and complete copies of the Company Warrants have been made available to Parent or its representatives.
(c) Except as set forth on Schedule 3.6(c), all of the outstanding shares of capital stock, or membership interests or other ownership interests of, each Subsidiary of the Company, as applicable, is validly issued, fully paid and nonassessable and is owned of record and beneficially by the Company, directly or indirectly. The Company has, as of the date hereof and shall have on the Closing Date, valid and marketable title to all of the shares of capital stock of, or membership interests or other ownership interests in, each Subsidiary of the Company, free and clear of any Liens other than Permitted Liens. Such outstanding shares of capital stock of, or membership interests or other ownership interests in, the Subsidiaries of the Company, as applicable, are the sole outstanding securities of such Subsidiaries; the Subsidiaries of the Company do not have outstanding any securities convertible into or exchangeable for any capital stock of, or membership interests or other ownership interests in, such Subsidiaries, 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 claims of any other character relating to the issuance of, any equity capital stock of, or membership interests of the Company or other ownership interests in, such Subsidiaries, or any stock or securities convertible into or exchangeable for any such equity interests, or (C) any capital stock appreciation rights, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits basedmembership interests or other ownership interests in, directly or indirectlysuch Subsidiaries; and except as required pursuant to Section 5.5 of this Agreement, on the value or price of, any equity interests of neither the Company (the items in clauses (A), (B) and (C) immediately above, together with the Common Shares, being referred to herein collectively as the “Company Securities”).
(iii) Neither the Company nor or any Subsidiary thereof of its Subsidiaries is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire, to grant any Person a right to subscribe for or acquire, or to register under the Securities Act, any Company Securities.
(iv) Neither the Company nor capital stock of, or membership interests or other ownership interests in, any Subsidiary thereof of the Company. The Company has outstanding any bondsmade available to Parent or its representatives true and correct copies of the organizational documents of C III Communications, debentures, notes or LLC (“CIII”) and all other similar 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 Shareholders of agreements between the Company or its Subsidiaries on the one hand and BCSI Inc. (“BCSI”) or its Subsidiaries on the other hand, with respect to CIII or BCSI’s interest therein. BCSI and its Affiliates hold in the aggregate the interest in CIII set forth on Schedule 3.6(c) and no other Person (other than the Company and its Subsidiaries) owns any such Subsidiary on any matterequity interest in CIII.
Appears in 2 contracts
Sources: Merger Agreement (Broadwing Corp), Merger Agreement (Broadwing Corp)
Capitalization and Related Matters. (ia) The As of the date hereof, the authorized share capital stock of the Company consists of 600,000,000 shares, consisting 100,000,000 shares of (i) 500,000,000 Company Common Shares Stock and (ii) 100,000,000 10,000,000 shares of Company Preferred Shares.
(ii) Stock. As of the close of business on August 153, 2016 2007:
(the “Capitalization Date”), 23,624,014 i) 7,099,229 shares of Company Common Shares were Stock are issued and outstanding, and there were are no shares of Company Preferred Shares Stock issued or outstanding.;
(iiiii) As 1,300,000 shares of Company Common Stock are reserved for issuance and issuable upon or otherwise deliverable under the Capitalization DateCompany’s 2006 Incentive Award Plan, the IsoTis, S.A. Stock Option Plan 2003/0, the IsoTis, S.A. Stock Option Plan 2003/1, the IsoTis, S.A. Stock Option Plan 2003/2 (collectively, the “Company Share Awards representing 2,319,471 Common Shares not subject to performance based vesting were issued and outstanding, Stock Plans”) in connection with the exercise of outstanding Company Share Awards representing 659,800 Common Shares subject to performance based vesting (based on the maximum level of performance) were issued and outstanding, Company Share Options representing 3,185,313 Common Shares were issued and outstanding, of which 2,995,414 were vested and exercisable as of the Capitalization Date, and Company Warrants convertible into 2,000,000 Common Shares were exercisable.
(iv) Options. Section 3.6(a)(iv3.6(a)(ii) of the Company Disclosure Letter sets forth as of the close of business on the Capitalization Date a list of forth, for each outstanding Company Equity Award and Company Warrant and Option, whether or not vested, the (Ax) the name of the holder of such Company Equity Award and Company WarrantOption, (B) the number of Common Shares subject to such outstanding Company Equity Award (based on the maximum level of performance for each Company Share Award that is subject to performance based vesting), (C) the date on which such Company Equity Award and Company Warrant was granted or issued, (Dy) the exercise price of each per share for such Company Share Option and Company Warrant, (Ez) the expiration date of each Company Share Option and Company Warrant, (F) the extent to which such Company Equity Award is vested as of such date, (G) if such Company Equity Award has performance-vesting criteria and (H) the amount of accrued dividend equivalents with respect to each Company Share Award and Company Warrant.Option; and
(viii) Section 3.6(a)(v) 681,297 shares of Company Common Stock were reserved for issuance, and were issued, pursuant to the consummation of the Disclosure Letter sets forth as Swiss Merger. The outstanding shares of the close of business on the Capitalization Date the aggregate exercise price of all Company Share Options that have a per share exercise price that is less than the Merger Consideration.
Common Stock (i) The outstanding Common Shares have been, and all Common Shares which may be issued pursuant to the exercise or settlement of outstanding Company Equity Awards and Company Warrants are or will be when issued, been duly authorized and validly issued and are fully paid, paid and an acquirer of Common Shares has no obligation to make further payments for its purchase of Common Shares or contributions to the Company solely by reason of the Common Shares or its status as a member of a limited liability company.
nonassessable and (ii) Except for the Common Shares were issued in compliance with all applicable federal, state and foreign securities laws. All grants of Company Options were validly issued and outstanding as properly approved by the Company’s Board of Directors or a duly authorized committee thereof (and all required approvals by the stockholders of the Capitalization Date Company have been obtained) no later than the date on which the grant of such Company Stock Option was by its terms to be effective in accordance with all applicable law and all grants of options to purchase equity interests of IsoTis, S.A. which were subsequently converted into Company Options were validly issued and properly approved by IsoTis, S.A.’s Board of Directors or a duly authorized committee thereof (and all required approvals by the stockholders of IsoTis, S.A. have been obtained) no later than the date on which the grant of such option was by its terms to be effective in accordance with all applicable law and, neither the Company nor IsoTis, S.A. has knowingly granted, and there is no and has been no policy or intentional practice by the Company or IsoTis, S.A. to grant, Company Stock Options or options to purchase equity interests of IsoTis, S.A., as applicable, prior to, or otherwise intentionally coordinate the grant of such options with, the release of material information regarding the Company or its Subsidiaries. Each Company Option was properly accounted for in all material respects in accordance with GAAP in the financial statements (including the related notes) of the Company and its Subsidiaries and disclosed in the filings of the Company and its Subsidiaries with the SEC in accordance with the Exchange Act and other applicable securities laws. Except as set forth above in Section 3.6(a) (and any Common Shares issued following such date and prior to the date hereof upon the settlement or exercise of Company Equity Awards or Company Warrants), and the Company Equity Awards and Company Warrants listed on Section 3.6(a) no shares of the Disclosure Letter, as of the date hereof, except as set forth on Section 3.6(b) of the Disclosure Letter, no equity interests capital stock of the Company are outstanding and neither the Company nor any Subsidiary thereof has does not have outstanding (A) any securities convertible into or exchangeable for any shares of equity interests of the Companycapital stock, (B) including Company 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 warrants, 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 for any capital stock; and the Company is not subject to any obligation (contingent or otherwise) to repurchase rightsor otherwise acquire or retire, voting rightsor to register under the Securities Act, any shares of capital stock. Except as set forth above in Section 3.6(a), the Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter.
(b) All of the outstanding shares of capital stock, or membership interests or other ownership interests of, each Subsidiary of the Company, as applicable, is validly issued, fully paid and nonassessable and is owned of record and beneficially by the Company, directly or indirectly. The Company has, as of the date hereof and shall have on the Closing Date, valid and marketable title to all of the shares of capital stock of, or membership interests or other ownership interests in, each Subsidiary of the Company, free and clear of any Liens other than Permitted Liens. Such outstanding shares of capital stock of, or membership interests or other ownership interests in, the Subsidiaries of the Company, as applicable, are the sole outstanding securities of such Subsidiaries; the Subsidiaries of the Company do not have outstanding any securities convertible into or exchangeable for any capital stock of, or membership interests or other ownership interests in, such Subsidiaries, 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 claims of any other character relating to the issuance of, any equity capital stock of, or membership interests of the Company or other ownership interests in, such Subsidiaries, or any stock or securities convertible into or exchangeable for any such equity interests, or (C) any capital stock appreciation rights, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits basedmembership interests or other ownership interests in, directly or indirectly, on the value or price of, any equity interests of such Subsidiaries; and neither the Company (the items in clauses (A), (B) and (C) immediately above, together with the Common Shares, being referred to herein collectively as the “Company Securities”).
(iii) Neither the Company nor or any Subsidiary thereof of its Subsidiaries is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire, to grant any Person a right to subscribe for or acquire, or to register under the Securities Act, any Company Securities.
(iv) Neither the Company nor capital stock of, or membership interests or other ownership interests in, any Subsidiary thereof has outstanding any bonds, debentures, notes or other similar 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 Shareholders of the Company or any such Subsidiary on any matterCompany.
Appears in 1 contract
Sources: Merger Agreement (Integra Lifesciences Holdings Corp)
Capitalization and Related Matters. (i) The authorized share capital of the Company consists of 600,000,000 shares, consisting of (i) 500,000,000 Common Shares and (ii) 100,000,000 Preferred Shares.
(ii) As of the close of business on August 15, 2016 (the “Capitalization Date”), 23,624,014 Common Shares were issued and outstanding, and there were no Preferred Shares issued or outstanding.
(iii) As of the Capitalization Date, Company Share Awards representing 2,319,471 Common Shares not subject to performance based vesting were issued and outstanding, Company Share Awards representing 659,800 Common Shares subject to performance based vesting (based on the maximum level of performance) were issued and outstanding, Company Share Options representing 3,185,313 Common Shares were issued and outstanding, of which 2,995,414 were vested and exercisable as of the Capitalization Date, and Company Warrants convertible into 2,000,000 Common Shares were exercisable.
(iv) Section 3.6(a)(iv) of the Disclosure Letter sets forth as of the close of business on the Capitalization Date a list of each outstanding Company Equity Award and Company Warrant and (A) the name of the holder of such Company Equity Award and Company Warrant, (B) the number of Common Shares subject to such outstanding Company Equity Award (based on the maximum level of performance for each Company Share Award that is subject to performance based vesting), (C) the date on which such Company Equity Award and Company Warrant was granted or issued, (D) the exercise price of each Company Share Option and Company Warrant, (E) the expiration date of each Company Share Option and Company Warrant, (F) the extent to which such Company Equity Award is vested as of such date, (G) if such Company Equity Award has performance-vesting criteria and (H) the amount of accrued dividend equivalents with respect to each Company Share Award and Company Warrant.
(v) Section 3.6(a)(v) of the Disclosure Letter sets forth as of the close of business on the Capitalization Date the aggregate exercise price of all Company Share Options that have a per share exercise price that is less than the Merger Consideration.
(i) The outstanding Common Shares have been, and all Common Shares which may be issued pursuant to the exercise or settlement of outstanding Company Equity Awards and Company Warrants are or will be when issued, duly authorized and validly issued and are fully paid, and an acquirer of Common Shares has no obligation to make further payments for its purchase of Common Shares or contributions to the Company solely by reason of the Common Shares or its status as a member of a limited liability company.
(ii) Except for the Common Shares issued and outstanding as of the Capitalization Date as set forth in Section 3.6(a) (and any Common Shares issued following such date and prior to the date hereof upon the settlement or exercise of Company Equity Awards or Company Warrants), and the Company Equity Awards and Company Warrants listed on Section 3.6(a) of the Disclosure Letter, as of the date hereof, except Buyer’s capital stock consists of (a) 100,000,000 authorized shares of common stock, $0.10 par value (“Buyer Stock”), 68,417,670 shares of which are issued and outstanding and (b) 5,000,000 authorized shares of preferred stock, par value $0.10 per share, none of which are outstanding. Buyer holds 301,335 shares of Buyer Stock as treasury stock and no shares of preferred stock in its treasury. Buyer has 3,498,110 shares of Buyer Stock reserved for issuance to officers, directors, employees and consultants of Buyer pursuant to its Amended and Restated 2004 Stock Incentive Plan, as amended from time to time, duly adopted by its Board of Directors and approved by Buyer’s stockholders. Of such reserved shares of Buyer Stock, 2,680,263 shares have been granted and are currently outstanding. Except as set forth on Section 3.6(b) of the Disclosure Letter, no equity interests of the Company are outstanding and neither the Company nor any Subsidiary thereof has outstanding (A) any securities convertible into or exchangeable for any shares of equity interests of the Company, (B) 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 warrants, calls, repurchase rights, voting rights, commitments or claims of any other character relating to the issuance of, any equity interests of the Company or any stock or securities convertible into or exchangeable for any such equity interests, or (C) any stock appreciation rights, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any equity interests of the Company (the items in clauses (ASchedule 4.4(a), (Bi) neither Buyer nor any of its Subsidiaries has outstanding any Equity Interests or any Commitments, other than the Equity Interests of Buyer issued to the public, Equity Interests and Commitments issued under Employee Benefit Plans of Buyer and Equity Interests of the Subsidiaries of Buyer that are owned by Buyer; and (Cii) immediately above, together with the Common Shares, being referred to herein collectively as the “Company Securities”).
(iii) Neither the Company neither Buyer nor any Subsidiary thereof of its Subsidiaries is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retireretire any Equity Interests of Buyer. All of the outstanding shares of Buyer Stock have been duly authorized, validly issued and are fully paid and non-assessable. The shares of Buyer Stock that may be issued upon conversion of any Buyer Note (the “Conversion Shares”) have been duly reserved for issuance upon conversion of the Buyer Notes and, when so issued, will be duly authorized, validly issued, fully paid and nonassessable shares of Buyer Stock and will be free and clear of all Encumbrances, other than restrictions imposed by securities Laws applicable to grant any Person a unregistered shares issued. Neither the issuance, sale or delivery of the Buyer Notes nor the issuance or delivery of the Conversion Shares is subject to any preemptive or other purchase right to subscribe for or acquire, of the Company’s stockholders or to register any right of first refusal or other right in favor of any Person. The consummation of the Transactions will not result in any anti-dilution adjustment or other similar adjustment to any of the Company’s outstanding securities. Other than as set forth on Schedule 4.4(b), there are no Contracts with respect to the voting or transfer of Buyer Stock. Except as set forth on Schedule 4.4(c) (such entities, the “Buyer Subsidiaries”), Buyer has no direct or indirect Subsidiaries. All of the issued and outstanding Equity Interests of each Buyer Subsidiary (A) that is a corporation have been duly authorized and are validly issued, fully paid, and nonassessable and (B) that is not a corporation have (i) been duly created pursuant to the Laws of the jurisdiction of such Buyer Subsidiary, (ii) have been issued and paid for in accordance with the Organizational Documents governing such Buyer Subsidiary, and (iii) are fully paid and non-assessable and require no further capital contribution. Buyer holds of record and owns beneficially all of the outstanding Equity Interests of the Buyer Subsidiaries, free and clear of any Encumbrances (other than restrictions under the Securities Act, any Company Securities.
(iv) Neither the Company nor any Subsidiary thereof has outstanding any bonds, debentures, notes or other similar debt obligations the holders of which have the right to vote (Act and state securities Laws). No Commitments exist or are convertible into authorized with respect to any Buyer Subsidiaries or exercisable for securities having the right to vote) their Equity Interests and no such Commitments will arise in connection with the Shareholders Transactions. No Buyer Subsidiary is obligated to redeem or otherwise acquire any of its Equity Interests. Each of the Company Buyer Subsidiaries is duly organized, validly existing and in good standing under the laws of the state of its jurisdiction, and is licensed or any such qualified to conduct its business and is in good standing in every jurisdiction where it is required to be so licensed or qualified, except where the failure to be so licensed or qualified would not individually or in the aggregate be reasonably likely to have a Buyer Material Adverse Effect. Each Buyer Subsidiary has the corporate power and authority to own or lease the assets it purports to own or lease and to carry on any matterits business in the manner currently conducted.
Appears in 1 contract
Capitalization and Related Matters. (ia) The authorized share capital stock of the Company consists of 600,000,000 shares500,000,000 shares of Common Stock, consisting 50,000,000 shares of Company Class B Common Stock, 210,000,000 shares of Company Class C Common Stock, and 100,000,000 shares of Company Preferred Stock. (i) 500,000,000 Common Shares and (ii) 100,000,000 Preferred Shares.
(ii) As of the close February 13, 2013, 60,508,304 shares of business on August 15, 2016 (the “Capitalization Date”), 23,624,014 Common Shares Stock were issued and outstanding, and there were no shares of Company Class B Common Stock, Company Class C Common Stock, or Company Preferred Shares Stock issued or outstanding.
, (ii) as of February 13, 2013, 179,794 shares of Common Stock were issuable upon or otherwise deliverable under the Company’s 2009 Stock Incentive Plan (the “Company Stock Plan”) in connection with the lapse of restrictions on Restricted Stock, (iii) As of the Capitalization Date, Company Share Awards representing 2,319,471 Common Shares not subject to performance based vesting were issued and outstanding, Company Share Awards representing 659,800 Common Shares subject to performance based vesting (based on the maximum level of performance) were issued and outstanding, Company Share Options representing 3,185,313 Common Shares were issued and outstanding, of which 2,995,414 were vested and exercisable as of February 13, 2013, 5,486,808 shares of Common Stock were issuable upon or otherwise deliverable under the Capitalization DateCompany Stock Plan in connection with the vesting of Restricted Stock Units, and Company Warrants convertible into 2,000,000 Common Shares were exercisable.
(iv) there are no Company Equity Awards outstanding that have been granted under an arrangement, Employee Benefit Plan or Contract other than the Company Stock Plan. Section 3.6(a)(iv3.6(a) of the Disclosure Letter sets forth as of the close of business on the Capitalization Date December 31, 2012 a list of each outstanding Company Equity Award and granted under the Company Warrant Stock Plan and (A) the name of the holder of such Company Equity Award and Company WarrantAward, (B) the number of shares of Common Shares Stock subject to such outstanding Company Equity Award (based on the maximum level of performance for each Company Share Award that is subject to performance based vesting)Award, (C) the date on which such Company Equity Award and Company Warrant was granted or issued, (D) the exercise price of each Company Share Option applicable vesting schedule and Company Warrant, (E) the expiration date of each Company Share Option and Company Warrant, (F) the extent to which such Company Equity Award is vested as of such date, date and (GE) if such Company Equity Award has performance-vesting criteria and (H) criteria. As promptly as practicable following the amount date of accrued dividend equivalents with respect this Agreement, the Company will provide or make available to each Company Share Award and Company Warrant.
(v) Section 3.6(a)(v) of the Disclosure Letter sets forth Parent a list as of the close of business on February 13, 2013 setting forth the Capitalization Date items specified by clauses (A)–(E) of the aggregate exercise price of all Company Share Options that have a per share exercise price that is less than the Merger Considerationpreceding sentence.
(ib) The outstanding shares of Common Shares Stock (i) have been, and all Common Shares which may be issued pursuant to the exercise or settlement of outstanding Company Equity Awards and Company Warrants are or will be when issued, been duly authorized and validly issued and are fully paidpaid and nonassessable, and an acquirer of Common Shares has no obligation to make further payments for its purchase of Common Shares or contributions to the Company solely by reason of the Common Shares or its status as a member of a limited liability company.
(ii) were issued in compliance with all applicable federal and state securities Laws. Except for the Common Shares Stock issued and outstanding as of the Capitalization Date February 13, 2013 as set forth in Section 3.6(a) (and any shares of Common Shares Stock issued following such date and prior to the date hereof upon the settlement or exercise of Company Equity Awards or Company WarrantsAwards), and the Company Equity Awards and Company Warrants listed on Section 3.6(a) of the Disclosure Letter, as or shares of the date hereof, except as set forth on Section 3.6(b) of the Disclosure LetterCommon Stock, no equity interests shares of capital stock of the Company are outstanding and neither the Company nor any Subsidiary thereof has outstanding (A) any securities convertible into or exchangeable for any shares of equity interests capital stock of the Company, (B) 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 warrants, calls, repurchase rights, voting rights, commitments or claims of any other character relating to the issuance of, any equity interests capital stock of the Company or any stock or securities convertible into or exchangeable for any such equity interestscapital stock, or (C) any stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any equity interests capital stock of the Company (the items in clauses (A), (B) and (C) immediately above, together with the Common Sharescapital stock of the Company, being referred to herein collectively as the “Company Securities”).
(iii) . Neither the Company nor any Subsidiary thereof is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire, to grant any Person a right to subscribe for or acquire, or to register under the Securities Act, any Company Securities.
(iv) . Neither the Company nor any Subsidiary thereof has outstanding any bonds, debentures, notes or other similar 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 Shareholders stockholders of the Company or any such Subsidiary on any matter.
Appears in 1 contract
Capitalization and Related Matters. (ia) The authorized share capital stock of the Company consists solely of 600,000,000 shares, consisting 18,500,000 shares of (i) 500,000,000 Common Shares and (ii) 100,000,000 Preferred Shares.
(ii) As of the close of business on August 15, 2016 (the “Capitalization Date”), 23,624,014 Common Shares were issued and outstanding, and there were no Preferred Shares issued or outstanding.
(iii) As of the Capitalization Date, Company Share Awards representing 2,319,471 Common Shares not subject to performance based vesting were issued and outstanding, Company Share Awards representing 659,800 Common Shares subject to performance based vesting (based on the maximum level of performance) were issued and outstanding, Company Share Options representing 3,185,313 Common Shares were issued and outstandingStock, of which 2,995,414 were vested and exercisable as of the Capitalization Date, and Company Warrants convertible into 2,000,000 Common Shares were exercisable.
12,162,777 shares (ivincluding 1,326,504 Restricted Shares) Section 3.6(a)(iv) of the Disclosure Letter sets forth as of the close of business on the Capitalization Date a list of each outstanding Company Equity Award and Company Warrant and (A) the name of the holder of such Company Equity Award and Company Warrant, (B) the number of Common Shares subject to such outstanding Company Equity Award (based on the maximum level of performance for each Company Share Award that is subject to performance based vesting), (C) the date on which such Company Equity Award and Company Warrant was granted or issued, (D) the exercise price of each Company Share Option and Company Warrant, (E) the expiration date of each Company Share Option and Company Warrant, (F) the extent to which such Company Equity Award is vested as of such date, (G) if such Company Equity Award has performance-vesting criteria and (H) the amount of accrued dividend equivalents with respect to each Company Share Award and Company Warrant.
(v) Section 3.6(a)(v) of the Disclosure Letter sets forth as of the close of business on the Capitalization Date the aggregate exercise price of all Company Share Options that have a per share exercise price that is less than the Merger Consideration.
(i) The outstanding Common Shares have been, and all Common Shares which may be issued pursuant to the exercise or settlement of outstanding Company Equity Awards and Company Warrants are or will be when issued, duly authorized and validly issued and are fully paid, and an acquirer of Common Shares has no obligation to make further payments for its purchase of Common Shares or contributions to the Company solely by reason of the Common Shares or its status as a member of a limited liability company.
(ii) Except for the Common Shares issued and outstanding as of the Capitalization Date as set forth in Section 3.6(a) date hereof (and any Common Shares issued following such date and prior to each, a “Share” and, collectively, the “Shares”). As of the date hereof upon the settlement or exercise hereof, there are an aggregate of (i) 2,603,510 shares of Common Stock subject to outstanding Company Equity Awards or Options and (ii) 242,563 shares of Common Stock subject to outstanding Company Warrants), and the Company Equity Awards and Company Warrants listed on Section 3.6(a.
(b) Schedule 2.3(b) lists each holder of the Disclosure LetterShares, the number of Shares owned by each Stockholder as of the date hereof, except and whether any of such Shares are unvested or subject to a repurchase option, risk of forfeiture or other contractual right as of the date hereof. All Shares of capital stock in the Company are owned by the Stockholders, of record and beneficially, and the Shares constitute the only issued and outstanding capital stock of the Company. Except as set forth in Schedule 2.3(b), to the knowledge of the Company, each Stockholder owns his, her or its Shares in the Company free and clear of any 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 attribute of ownership (collectively, “Liens”). Except as set forth on Section 3.6(b) Schedule 2.3(b), all of the Disclosure LetterShares were duly authorized and validly issued; are fully paid and non-assessable without restriction on the right of transfer thereof; and were not, no equity interests when issued, subject to any unwaived preemptive rights.
(c) Schedule 2.3(c)(i) lists each outstanding and unexercised Company Warrant, the holder thereof, the number of shares of the Company’s Common Stock available for exercise thereunder, 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 are Warrant as a result of the Merger, the date of grant and any vesting schedule. Schedule 2.3(c)(ii) lists each outstanding and neither unexercised Company Option as of the date hereof, the holder thereof, the number of shares of the Company’s Common Stock available for exercise thereunder, the exercise price and, separately, reflecting any acceleration of vesting or adjustment to the exercise price of such Company Option as a result of the Merger, the date of grant and any vesting schedule. Schedule 2.3(c)(iii) lists each exercised Company Option as of the date hereof 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. Schedule 2.3(c)(iv) lists each stock purchase or other agreement (other than agreements entered into in connection with the exercise of unvested Company Options) as of the date hereof pursuant to which Restricted Shares outstanding as of the date hereof were acquired (other than Restricted Shares listed in Schedule 2.3(c)(iii)), the name of the Stockholder who is a party to the agreement, the number of shares of the Company’s Common Stock acquired thereunder, the date of the agreement, and any vesting schedule, including any acceleration of vesting as a result of the Merger. The stock purchase agreements listed in Schedule 2.3(c)(iii) and in Schedule 2.3(c)(iv) are, collectively, the “Restricted Share Purchase Agreements.”
(d) Except for the Company nor any Subsidiary thereof has Options, the Company Warrants, and the Restricted Share Purchase Agreements, (i) there are no authorized or outstanding (A) any securities convertible into or exchangeable for any shares of equity interests of the CompanyCompany other than the Shares, (B) any rights to subscribe for or to purchase or any options for the purchase ofwarrants, or any agreements providing for the issuance (contingent or otherwise) of, or any warrantspreemptive rights, calls, repurchase rightsoptions, voting rights, commitments stock purchase rights or claims of other rights with respect to any other character relating to the issuance of, any equity interests securities of the Company or any stock securities or securities right convertible into into, exchangeable for, or exchangeable for evidencing the right to subscribe for, any such equity interestsshares of the Company’s capital stock, or (C) any stock appreciation appreciation, phantom rights, contingent value rights, “phantom” stock profit participation or similar securities or rights that are derivative ofwith respect to the Company, or provide economic benefits based, directly or indirectly, on and (ii) neither the value or price of, any equity interests Company nor to the knowledge of the Company (any of the items in clauses (A), (B) and (C) immediately above, together with the Common Shares, being referred to herein collectively as the “Company Securities”).
(iii) Neither the Company nor any Subsidiary thereof Stockholders is subject to any obligation (contingent or otherwise) to repurchase issue, sell, deliver, redeem, or otherwise acquire or retiretransfer, to grant any Person a right to subscribe for or acquire, repurchase, or to register under retire the Securities ActShares or any other securities of the Company. There are no stockholder agreements, any Company Securities.
(iv) Neither the Company nor any Subsidiary thereof has outstanding any bondsbuy-sell agreements, debentures, notes voting trusts or other similar debt obligations the holders of agreements or understandings to which have the right to vote (or are convertible into or exercisable for securities having the right to vote) with the Shareholders of the Company or any such Subsidiary of the Company is a party or by which it is, or to the knowledge of the Company, any of the Shares are, bound.
(e) The Company Options and Company Warrants may, in accordance with their respective terms, be treated in the manner provided for in this Agreement.
(f) All of the Shares, Company Options, Company Warrants 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 Stockholders under Section 1.5 and as set forth on Schedule 1.5(b)(ii) has been calculated in accordance with and subject to all terms of the Certificate of Incorporation of the Company, all applicable Laws and any matterother agreements to which the Company is a party, to which the Company is subject or by which the Company is bound.
Appears in 1 contract
Sources: Merger Agreement (Ixia)
Capitalization and Related Matters. (ia) The authorized share capital stock of the Company consists of 600,000,000 shares120,000,000 shares of Company Common Stock and 35,000,000 shares of preferred stock, consisting of par value $0.01 per share (the “Company Preferred Stock”). On the date hereof:
(i) 500,000,000 1,617,625 shares of Company Common Shares Stock are issued and outstanding, including 6,780 restricted shares of Company Common Stock (ii) 100,000,000 Preferred Shares.“Restricted Stock”),
(ii) As 8,700,000 shares of the close of business on August 15, 2016 (the “Capitalization Date”), 23,624,014 Common Shares were Company Preferred Stock are issued and outstanding, and there were no all of which are designated Series B Preferred Shares issued or outstanding.Stock,
(iii) As 1,173 shares of Company Common Stock are held by the Capitalization Date, Company Share Awards representing 2,319,471 Common Shares not subject to performance based vesting were issued and outstanding, as treasury shares; no shares of Company Share Awards representing 659,800 Common Shares subject to performance based vesting (based on Preferred Stock are held by the maximum level of performance) were issued and outstanding, Company Share Options representing 3,185,313 Common Shares were issued and outstanding, of which 2,995,414 were vested and exercisable as of the Capitalization Date, and Company Warrants convertible into 2,000,000 Common Shares were exercisable.treasury shares,
(iv) Section 3.6(a)(iv) an aggregate of 112,427 shares of Company Common Stock are reserved and available for issuance pursuant to the Disclosure Letter sets forth as Company Plans, and of the close of business on the Capitalization Date a list of each outstanding Company Equity Award and Company Warrant and such shares (A) the name 70,953 shares of the holder of such Company Equity Award Common Stock are subject to issuance pursuant to outstanding Company Options, and Company Warrant, (B) the number 6,780 shares of Company Common Shares Stock are subject to such issuance pursuant to outstanding Company Equity Award (based on the maximum level of performance for each Company Share Award that is subject to performance based vesting)Restricted Stock and RSU grants, (C) the date on which such Company Equity Award and Company Warrant was granted or issued, (D) the exercise price of each Company Share Option and Company Warrant, (E) the expiration date of each Company Share Option and Company Warrant, (F) the extent to which such Company Equity Award is vested as of such date, (G) if such Company Equity Award has performance-vesting criteria and (H) the amount of accrued dividend equivalents with respect to each Company Share Award and Company Warrant.and
(v) an aggregate of 1,385,178 shares of Company Common Stock are reserved and available for issuance upon the exercise of Company Warrants. Other than the Company Plans, there is no plan or other Contract providing for the grant of options, securities or other rights exercisable or exchangeable for or into shares of Company Common Stock by the Company or any of its Subsidiaries. No shares of Company Common Stock are owned by any Subsidiary of the Company. Section 3.6(a)(v3.06(a) of the Company Disclosure Letter Schedule sets forth as of the close of business on the Capitalization Date the aggregate exercise price of all Company Share Options that have a per share exercise price that is less than the Merger Consideration.
(i) The outstanding Common Shares have been, true and all Common Shares which may be issued pursuant to the exercise or settlement of outstanding Company Equity Awards and Company Warrants are or will be when issued, duly authorized and validly issued and are fully paid, and an acquirer of Common Shares has no obligation to make further payments for its purchase of Common Shares or contributions to the Company solely by reason of the Common Shares or its status as a member of a limited liability company.
(ii) Except for the Common Shares issued and outstanding as of the Capitalization Date as set forth in Section 3.6(a) (and any Common Shares issued following such date and prior to the date hereof upon the settlement or exercise of Company Equity Awards or Company Warrants), and the Company Equity Awards and Company Warrants listed on Section 3.6(a) of the Disclosure Letter, complete list as of the date hereof, except as set forth on Section 3.6(bof (x) all outstanding Company Options, the number of shares of Company Common Stock (or other capital stock) subject thereto, the grant dates, expiration dates and exercise prices thereof, the names of the Disclosure Letter, no equity interests of the Company are outstanding holders thereof and neither the Company nor any Subsidiary thereof has outstanding (A) any securities convertible into whether or exchangeable for any shares of equity interests of the Company, (B) 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 warrants, calls, repurchase rights, voting rights, commitments or claims of any other character relating to the issuance of, any equity interests not each holder is a current employee of the Company or any of its Subsidiaries and whether or not such Company Option is intended to qualify as an “incentive stock option” under Section 422 of the Code, (y) all outstanding shares of Restricted Stock and RSUs, the number of shares of Company Common Stock (or other capital stock) subject thereto (as applicable), the grant dates, the dates any forfeiture or repurchase conditions lapse, any repurchase prices and the names of the holders thereof and whether or not each holder is a current employee of the Company or any of its Subsidiaries and (z) all outstanding Company Warrants, the number of shares of Company Common Stock (or other capital stock) subject thereto, the issuance dates, the maturity or expiration dates, the exercise or conversion prices and the names of the holders thereof. All outstanding Company Stock Options, shares of Restricted Stock and RSUs are evidenced by written award agreements, in each case in the forms set forth in Section 3.01(a) of the Company Disclosure Schedule, and no award agreement relating to any outstanding Company Stock Option, Restricted Stock or RSU contains terms that are inconsistent with such forms. Copies of all Instruments evidencing Company Warrants have been made available to Parent prior to the date hereof.
(b) On the date hereof, no shares of capital stock of, or other equity or voting interests in, the Company, or any securities convertible into into, or exchangeable for for, any such equity interestsstock, interests or securities, or (C) any options, warrants, shares of deferred stock, restricted stock awards, stock appreciation or depreciation rights, contingent value dividend equivalent rights, “phantom” stock awards or similar securities other calls or rights to acquire or receive any such stock, interests or securities, or other rights that are derivative linked in any way to the value of the Company Common Stock or the value of the Company or any part thereof, were issued, reserved for issuance or outstanding. Except as expressly permitted under Section 5.01(a)(i) of this Agreement, since the date hereof, there have been no issuances by the Company of shares of capital stock of, or provide economic benefits basedother equity or voting interests in, directly the Company, or indirectlyany securities convertible into, on or exchangeable for, any such stock, interests or securities, or any options, warrants, shares of deferred stock, restricted stock awards, restricted stock unit awards, stock appreciation or depreciation rights, dividend equivalent rights, “phantom” stock awards or other calls or rights to acquire or receive any such stock, interests or securities, or other rights that are linked in any way to the value or price of, any equity interests of the Company (Common Stock or the items in clauses (A), (B) and (C) immediately above, together with value of the Common Shares, being referred to herein collectively as the “Company Securities”)or any part thereof.
(iiic) Neither All outstanding shares of capital stock of the Company nor any Subsidiary thereof is are, and all shares which are issuable pursuant to the Company Plans shall be, when issued in accordance with the terms thereof, duly authorized, validly issued, fully paid and nonassessable and not subject to or issued in violation of any obligation (contingent purchase option, call or otherwise) put option, right of first offer or refusal, preemptive right, subscription right or any similar right under any provision of the PBCL, the Company Organizational Documents or any Contract to repurchase which the Company is a party or otherwise acquire or retirebound. Except as set forth in Section 3.06(a), to grant any Person a right to subscribe for or acquire, or to register under the Securities Act, any Company Securities.
there are no (ivi) Neither the Company nor any Subsidiary thereof has outstanding any bonds, debentures, notes or other similar debt evidences of indebtedness of the Company or any of its Subsidiaries and (ii) securities or other instruments or obligations of the holders Company or any of its Subsidiaries, in each case, the value of which is based upon or derived from any capital stock of, or other equity or voting interest in, the Company or which has or which by its terms may have at any time (whether actual or contingent) the right to vote (or are which is convertible into into, or exchangeable or exercisable for for, securities having the right to vote) on any matters on which holders of Company Common Stock may vote (whether generally in the election of Company directors or in respect of any other matter for which holders of Company Common Stock are entitled to vote as a matter of Law or pursuant to the Company Organizational Documents). Except as set forth in Section 3.06(a), there are no securities, options, warrants, calls, rights or Contracts of any kind to which the Company or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries is bound, obligating the Company or any of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock of, or other equity or voting interests in, or securities convertible into, or exchangeable or exercisable for, shares of capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or obligating the Company or any of its Subsidiaries to issue, grant, extend or enter into any such security, option, warrant, call, right or Contract. With respect to the Company Options, (A) each Company Option intended to qualify as an “incentive stock option” under Section 422 of the Code so qualifies, (B) each grant of a Company Option was duly authorized no later than the date on which the grant of such Company Option was by its terms to be effective by all necessary corporate action, including, as applicable, approval by the Company Board (or a duly constituted and authorized committee thereof) and any required shareholder approval by the necessary number of votes or written consents, and the award agreement governing such grant (if any) was duly executed and delivered by each party thereto, (C) each such grant was made in accordance with the Shareholders terms of the Company Plans, the Exchange Act and all other applicable Laws and regulatory rules or requirements, including the rules of NASDAQ, (D) the per share exercise price of each Company Option was not less than the fair market value of a share of Company Common Stock on the applicable date of grant of such Company Option and (E) each such grant was properly accounted for in accordance with GAAP in the financial statements (including the related notes) of the Company and disclosed in the Company SEC Reports in accordance with the Exchange Act and all other applicable Laws. Except as set forth in Section 3.06(a) and except for the outstanding shares of Restricted Stock and RSUs or except pursuant to the cashless exercise, if any, or Tax withholding provisions under which the Company Options, Restricted Stock and RSUs were granted, there are no outstanding contractual or other obligations of the Company or any of its Subsidiaries to (I) repurchase, redeem or otherwise acquire any shares of capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries or (II) vote or dispose of any shares of capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries is a party to any voting agreements with respect to any shares of capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries and, to the Company’s Knowledge, there are no irrevocable proxies and no voting agreements or voting trusts with respect to any shares of capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries. All outstanding Company Securities may by their terms be treated in accordance with Sections 1.08, 1.09 and 1.10.
(d) The Company has registered the Company Common Stock pursuant to Section 12(b) or (g) of the Exchange Act and is in full compliance with all reporting requirements of the Exchange Act and all NASDAQ requirements for the continued listing and quotation of the Company Common Stock on the NASDAQ, including applicable corporate governance requirements. On August 31, 2007, the Office of General Counsel of the NASDAQ Listing Qualifications Hearings issued a final written decision granting the Company’s request for continued listing on the NASDAQ, and, to the Company’s Knowledge, there is no threat of the termination or discontinuance of the eligibility of the Common Stock for such Subsidiary on any matterlisting.
(e) No appraisal or dissenters rights are available to the holders of the Shares pursuant to Section 1571 of the PBCL.
Appears in 1 contract
Sources: Merger Agreement (Verticalnet Inc)
Capitalization and Related Matters. (ia) The As of the date hereof, the authorized share capital stock of the Company consists of 600,000,000 shares, consisting 1,600,000,000 shares of Company Common Stock and 200,000,000 shares of Company Preferred Stock. As of the date hereof:
(i) 500,000,000 89,954,431 shares of Company Common Shares and (ii) 100,000,000 Preferred Shares.
(ii) As of the close of business on August 15, 2016 (the “Capitalization Date”), 23,624,014 Common Shares were Stock are issued and outstanding, and there were are no shares of Company Preferred Shares Stock issued or outstanding.;
(ii) 4,807,071 shares of Company Common Stock are reserved for issuance and issuable upon or otherwise deliverable under the Company's Second Amended 1997 Stock Option Plan, 2000 Long Term Incentive Plan and Employee Stock Purchase Plan (collectively, the "Company Stock Plans") in connection with the exercise of outstanding Company Options and the vesting of outstanding Other Stock Awards. Schedule 3.6(a)(ii) sets forth the exercise prices for the Company Options;
(iii) As 13,638,600 shares of the Capitalization Date, Company Share Awards representing 2,319,471 Common Shares not subject to performance based vesting were issued Stock are reserved for issuance and outstanding, Company Share Awards representing 659,800 Common Shares subject to performance based vesting (based on the maximum level of performance) were issued and outstanding, Company Share Options representing 3,185,313 Common Shares were issued and outstanding, of which 2,995,414 were vested and exercisable issuable as of the Capitalization Date, and Company Warrants convertible into 2,000,000 Common Shares were exercisable.date hereof upon conversion of the Company's 3.125% Convertible Senior Debentures due 2006 (the "Convertible Debentures"); and
(iv) Section 3,820,980 shares of Company Common Stock are reserved for issuance and 3,820,980 shares of Company Common Stock are issuable upon exercise of the Company Warrants. Schedule 3.6(a)(iv) of the Disclosure Letter sets forth as the names of the close all holders of business on the Capitalization Date a list of each outstanding Company Equity Award and Company Warrant and (A) the name of the holder of such Company Equity Award and Company WarrantWarrants, (B) the number of shares of Company Common Shares subject to such outstanding Company Equity Award (based on the maximum level of performance for each Company Share Award that is subject to performance based vesting), (C) the date on which such Company Equity Award Stock purchasable thereunder and Company Warrant was granted or issued, (D) the exercise price of each Company Share Option and Company Warrant, (Eprice(s) the expiration date of each Company Share Option and Company Warrant, (F) the extent to which such Company Equity Award is vested as of such date, (G) if such Company Equity Award has performance-vesting criteria and (H) the amount of accrued dividend equivalents with respect to each Company Share Award and Company Warranttherefor.
(vb) Section 3.6(a)(v) The outstanding shares of the Disclosure Letter sets forth as of the close of business on the Capitalization Date the aggregate exercise price of all Company Share Options that have a per share exercise price that is less than the Merger Consideration.
Common Stock (i) The outstanding Common Shares have been, and all Common Shares which may be issued pursuant to the exercise or settlement of outstanding Company Equity Awards and Company Warrants are or will be when issued, been duly authorized and validly issued and are fully paid, paid and an acquirer of Common Shares has no obligation to make further payments for its purchase of Common Shares or contributions to the Company solely by reason of the Common Shares or its status as a member of a limited liability company.
nonassessable and (ii) Except for the Common Shares were issued in compliance with all applicable federal and state securities laws. All grants of Company Options and Other Stock Awards were validly issued and outstanding as properly approved by the Company's Board of Directors in accordance with all applicable law and no such grants involved any "backdating" or similar practices with respect to the Capitalization Date effective date of grant. Except as set forth above in Section 3.6(a) (and any Common Shares issued following such date and prior to the date hereof upon the settlement or exercise of Company Equity Awards or Company Warrants), and the Company Equity Awards and Company Warrants listed on Section 3.6(a) of the Disclosure Letter, as of the date hereof, except as set forth on Section 3.6(b) no shares of the Disclosure Letter, no equity interests capital stock of the Company are outstanding and neither outstanding. Except as set forth above in Section 3.6(a) or as required pursuant to Section 5.5 of this Agreement, the Company nor any Subsidiary thereof has does not have outstanding (A) any securities convertible into or exchangeable for any shares of equity interests of the Companycapital stock, (B) including Company 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 warrants, 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 for any capital stock; and the Company is not subject to any obligation (contingent or otherwise) to repurchase rightsor otherwise acquire or retire, voting rightsor to register under the Securities Act, any shares of capital stock. Except as set forth above in Section 3.6(a), the Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter. True and complete copies of the Company Warrants have been made available to Parent or its representatives.
(c) Except as set forth on Schedule 3.6(c), all of the outstanding shares of capital stock, or membership interests or other ownership interests of, each Subsidiary of the Company, as applicable, is validly issued, fully paid and nonassessable and is owned of record and beneficially by the Company, directly or indirectly. The Company has, as of the date hereof and shall have on the Closing Date, valid and marketable title to all of the shares of capital stock of, or membership interests or other ownership interests in, each Subsidiary of the Company, free and clear of any Liens other than Permitted Liens. Such outstanding shares of capital stock of, or membership interests or other ownership interests in, the Subsidiaries of the Company, as applicable, are the sole outstanding securities of such Subsidiaries; the Subsidiaries of the Company do not have outstanding any securities convertible into or exchangeable for any capital stock of, or membership interests or other ownership interests in, such Subsidiaries, 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 claims of any other character relating to the issuance of, any equity capital stock of, or membership interests of the Company or other ownership interests in, such Subsidiaries, or any stock or securities convertible into or exchangeable for any such equity interests, or (C) any capital stock appreciation rights, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits basedmembership interests or other ownership interests in, directly or indirectlysuch Subsidiaries; and except as required pursuant to Section 5.5 of this Agreement, on the value or price of, any equity interests of neither the Company (the items in clauses (A), (B) and (C) immediately above, together with the Common Shares, being referred to herein collectively as the “Company Securities”).
(iii) Neither the Company nor or any Subsidiary thereof of its Subsidiaries is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire, to grant any Person a right to subscribe for or acquire, or to register under the Securities Act, any Company Securities.
(iv) Neither the Company nor capital stock of, or membership interests or other ownership interests in, any Subsidiary thereof of the Company. The Company has outstanding any bondsmade available to Parent or its representatives true and correct copies of the organizational documents of C III Communications, debentures, notes or LLC ("CIII") and all other similar 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 Shareholders of agreements between the Company or its Subsidiaries on the one hand and BCSI Inc. ("BCSI") or its Subsidiaries on the other hand, with respect to CIII or BCSI's interest therein. BCSI and its Affiliates hold in the aggregate the interest in CIII set forth on Schedule 3.6(c) and no other Person (other than the Company and its Subsidiaries) owns any such Subsidiary on any matterequity interest in CIII.
Appears in 1 contract
Capitalization and Related Matters. (ia) The As of the date hereof, the authorized share capital stock of the Company consists of 600,000,000 shares110,000,000 Company Common Shares and 45,000,000 shares of Convertible Preferred Stock. As of April 7, consisting of 2011: (i) 500,000,000 61,064,896 Company Common Shares and (ii) 100,000,000 18,000,000 shares of Convertible Preferred Shares.Stock are issued and outstanding;
(ii) As of the close of business on August 15, 2016 8,539,957 Company Common Shares (the “Capitalization DateCompany Share Reserve”), 23,624,014 ) are reserved for issuance and issuable upon or otherwise deliverable under the 2003 Global Crossing Limited Stock Incentive Plan. The Global Crossing Share Reserve represents 870,096 Company Common Shares were issued issuable upon the exercise of outstanding Company Options, 7,045,853 Company Common Shares issuable upon the settlement of outstanding Company RSUs assuming maximum payout and outstanding, 624,008 Company Common Shares remaining available for issuance or delivery under the 2003 Global Crossing Limited Stock Incentive Plan after the exercise of all such Company Options and there were no Preferred Shares issued or outstanding.settlement of all such Company RSUs assuming maximum payout. Schedule 3.6(a)(ii) sets forth the exercise prices for the Company Options and the vesting schedule for each outstanding Company Option and Company RSU; and
(iii) As 18,000,000 Company Common Shares are reserved for issuance and issuable upon conversion of the Capitalization DateCompany’s 2% Cumulative Preferred Shares, Company Share Awards representing 2,319,471 Common Shares not subject to performance based vesting were issued and outstandingpar value $0.10 per share, Company Share Awards representing 659,800 Common Shares subject to performance based vesting (based on the maximum level of performance) were issued and outstanding, Company Share Options representing 3,185,313 Common Shares were issued and outstanding, of which 2,995,414 were vested and exercisable as of the Capitalization Date, and Company Warrants convertible into 2,000,000 Common Shares were exercisable“Convertible Preferred Stock”).
(ivb) Section 3.6(a)(iv) of the Disclosure Letter sets forth as of the close of business on the Capitalization Date a list of each The issued and outstanding Company Equity Award and Company Warrant and (A) the name of the holder of such Company Equity Award and Company Warrant, (B) the number of Common Shares subject to such outstanding Company Equity Award (based on the maximum level and shares of performance for each Company Share Award that is subject to performance based vesting), (C) the date on which such Company Equity Award and Company Warrant was granted or issued, (D) the exercise price of each Company Share Option and Company Warrant, (E) the expiration date of each Company Share Option and Company Warrant, (F) the extent to which such Company Equity Award is vested as of such date, (G) if such Company Equity Award has performance-vesting criteria and (H) the amount of accrued dividend equivalents with respect to each Company Share Award and Company Warrant.
(v) Section 3.6(a)(v) of the Disclosure Letter sets forth as of the close of business on the Capitalization Date the aggregate exercise price of all Company Share Options that have a per share exercise price that is less than the Merger Consideration.
Convertible Preferred Stock (i) The outstanding Common Shares have been, and all Common Shares which may be issued pursuant to the exercise or settlement of outstanding Company Equity Awards and Company Warrants are or will be when issued, been duly authorized and validly issued and are fully paid, paid and an acquirer of Common Shares has no obligation to make further payments for its purchase of Common Shares or contributions nonassessable and (ii) were issued in compliance with all applicable U.S. federal and state securities laws and any non-U.S. securities laws. With respect to the Company solely by reason Options, (i) the per share exercise price of each Company Option was not less than the fair market value of a Company Common Share on the applicable date of grant, as determined in accordance with the terms of the Common Shares or its status as a member applicable Company Benefit Plan and, to the extent applicable, sections 409A and 422 of a limited liability company.
the Code, (ii) Except each such grant was properly accounted for in all material respects in accordance with GAAP in the Common Shares issued financial statements and outstanding as no change is expected in respect of any prior financial statement relating to expenses for stock compensation and (iii) to the Knowledge of the Capitalization Date Company, there is no pending audit, investigation or inquiry by any governmental agency or by the Company with respect to the Company’s stock option granting practices or other equity compensation practices. Except as set forth above in Section 3.6(a) (and any Common Shares issued following such date and prior to the date hereof upon the settlement or exercise of Company Equity Awards or Company Warrants), and the Company Equity Awards and Company Warrants listed on Section 3.6(a) no shares of the Disclosure Letter, as of the date hereof, except as set forth on Section 3.6(b) of the Disclosure Letter, no equity interests capital stock of the Company are issued and outstanding and neither the Company nor any Subsidiary thereof has does not have outstanding (A) any securities convertible into or exchangeable for any shares of equity interests of the Companycapital stock, (B) including Company 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 warrants, 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 for any capital stock; and, except as set forth on Schedule 3.6(b), 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. Except as set forth above in Section 3.6(a), the Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the shareholders of the Company on any matter. Except as set forth above in Section 3.6(a), there are no outstanding stock options, restricted stock units, restricted stock, stock appreciation rights, voting “phantom” stock rights, performance units, or other compensatory rights or awards (in each case, issued by the Company or any of its Subsidiaries), that are convertible into or exercisable for a Company Common Share on a deferred basis or otherwise or other rights that are linked to, or based upon, the value of Company Common Shares. All Company Options and Company RSUs are evidenced by award agreements in the forms previously made available to Parent.
(c) The Company has no rights plan, “poison-pill” or other similar agreement or arrangement or any anti-takeover provision in the Company Organizational Documents that is, or at the Effective Time shall be, applicable to the Company, the Company Common Shares, the Convertible Preferred Stock, the Amalgamation or the other transactions contemplated by this Agreement and the Amalgamation Agreement.
(d) All of the outstanding shares of capital stock, or membership interests or other ownership interests of, each Subsidiary of the Company, as applicable, are validly issued, fully paid and nonassessable and, except as set forth on Schedule 3.6(d), are owned of record and beneficially by the Company, directly or indirectly. The Company has, as of the date hereof and shall have on the Closing Date, valid and marketable title to all of the shares of capital stock of, or membership interests or other ownership interests in, each Subsidiary of the Company, free and clear of any Liens other than Permitted Liens. Such outstanding shares of capital stock of, or membership interests or other ownership interests in, the Subsidiaries of the Company, as applicable, are the sole outstanding securities of such Subsidiaries; the Subsidiaries of the Company do not have outstanding any securities convertible into or exchangeable for any capital stock of, or membership interests or other ownership interests in, such Subsidiaries, 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 claims of any other character relating to the issuance of, any equity capital stock of, or membership interests of the Company or other ownership interests in, such Subsidiaries, or any stock or securities convertible into or exchangeable for any such equity interests, or (C) any capital stock appreciation rights, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits basedmembership interests or other ownership interests in, directly or indirectly, on the value or price of, any equity interests of such Subsidiaries; and neither the Company (the items in clauses (A), (B) and (C) immediately above, together with the Common Shares, being referred to herein collectively as the “Company Securities”).
(iii) Neither the Company nor or any Subsidiary thereof of its Subsidiaries is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire, to grant any Person a right to subscribe for or acquire, or to register under the Securities Act, any Company Securities.
(iv) Neither the Company nor capital stock of, or membership interests or other ownership interests in, any Subsidiary thereof has outstanding any bonds, debentures, notes or other similar 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 Shareholders of the Company or any such Subsidiary on any matterCompany.
Appears in 1 contract
Capitalization and Related Matters. (ia) The As of the date hereof, the authorized share capital stock of the Company consists of 600,000,000 shares, consisting 55,000,000 shares of Company Common Stock and 38,670,716 shares of Company Preferred Stock. As of the date hereof: (i) 500,000,000 3,890,973 shares of Company Common Shares Stock are issued and (ii) 100,000,000 outstanding and 38,443,420 shares of Company Preferred Shares.Stock are issued and outstanding;
(ii) As 8,839,505 shares of Company Common Stock are reserved for issuance and issuable upon or otherwise deliverable under the Company’s 1996 Stock Option Plan and 2000 Stock Plan (collectively, the “Company Stock Plans”) or otherwise in connection with the exercise of outstanding Company Options and the vesting of outstanding Other Stock Awards. Section 3.6(a)(ii) of the close Company Disclosure Schedule sets forth the names of business on August 15all holders, 2016 (the “Capitalization Date”)number of shares of Company Common Stock covered thereby, 23,624,014 Common Shares were issued the vesting schedule and outstanding, the exercise prices for the Company Options and there were no Preferred Shares issued or outstanding.the outstanding Other Stock Awards;
(iii) 2,173,843 shares of Company Common Stock are reserved for issuance and issuable upon exercise of the Company Warrants (other than the GE Preferred Warrant). As of the Capitalization Datedate hereof, Company Share Awards representing 2,319,471 Common Shares not subject to performance based vesting were issued 181,818 shares of Series B Preferred Stock are reserved for issuance and outstanding, Company Share Awards representing 659,800 Common Shares subject to performance based vesting (based on the maximum level of performance) were issued and outstanding, Company Share Options representing 3,185,313 Common Shares were issued and outstanding, of which 2,995,414 were vested and exercisable as issuable upon exercise of the Capitalization DateGE Preferred Warrant and, after the Conversion and immediately prior to the Closing, 181,818 shares of Company Common Stock will be reserved for issuance and issuable upon exercise of the GE Preferred Warrant. Section 3.6(a)(ii) of the Company Disclosure Schedule sets forth the names of all holders of Company Warrants, the number of shares of Company Common Stock and Company Warrants convertible into 2,000,000 Preferred Stock (including the class and series thereof) issuable thereunder, the respective exercise prices for such Company Common Shares were exercisable.Stock and Company Preferred Stock and the respective expiration dates of the Company Warrants; and
(iv) Section 3.6(a)(iv) of the Disclosure Letter sets forth as of the close of business on the Capitalization Date a list of each outstanding Company Equity Award and Company Warrant and (A) the name of the holder of such Company Equity Award and Company Warrant, (B) the number of shares of Company Common Shares subject Stock required to such be issued in order to effect the Conversion, including, without limitation, the conversion of all Bridge Notes outstanding Company Equity Award (based on immediate prior to the maximum level of performance Effective Time, will be reserved for each Company Share Award that is subject issuance not less than one Business Day prior to performance based vesting), (C) the date on which such Company Equity Award and Company Warrant was granted or issued, (D) the exercise price of each Company Share Option and Company Warrant, (E) the expiration date of each Company Share Option and Company Warrant, (F) the extent to which such Company Equity Award is vested as of such date, (G) if such Company Equity Award has performance-vesting criteria and (H) the amount of accrued dividend equivalents with respect to each Company Share Award and Company WarrantClosing Date.
(vb) Section 3.6(a)(v) The outstanding shares of the Disclosure Letter sets forth as of the close of business on the Capitalization Date the aggregate exercise price of all Company Share Options that have a per share exercise price that is less than the Merger Consideration.
Common Stock and Company Preferred Stock (i) The outstanding Common Shares have been, and all Common Shares which may be issued pursuant to the exercise or settlement of outstanding Company Equity Awards and Company Warrants are or will be when issued, been duly authorized and validly issued and are fully paid, paid and an acquirer of Common Shares has no obligation to make further payments for its purchase of Common Shares or contributions to the Company solely by reason of the Common Shares or its status as a member of a limited liability company.
nonassessable and (ii) Except for the Common Shares were issued in compliance with all applicable federal and state securities laws. All grants of Company Options and Other Stock Awards were validly issued and outstanding as properly approved by the Company’s Board of Directors in accordance with all applicable law and no such grants involved any “backdating” or similar practices with respect to the Capitalization Date effective date of grant. Except as set forth above in Section 3.6(a) (and any Common Shares issued following such date and prior to the date hereof upon the settlement or exercise of Company Equity Awards or Company Warrants), and the Company Equity Awards and Company Warrants listed on Section 3.6(a) no shares of the Disclosure Letter, as of the date hereof, except as set forth on Section 3.6(b) of the Disclosure Letter, no equity interests capital stock of the Company are outstanding and neither the Company nor does not have outstanding any Subsidiary thereof has outstanding (A) any options, warrants or other securities convertible into or exchangeable or exercisable for any shares of equity interests of the Company, (B) capital stock or any rights to subscribe for or to purchase or any options for the purchase ofotherwise acquire, or any agreements providing for the issuance (contingent or otherwise) of, or any warrants, calls, repurchase rights, voting rights, commitments or known claims of any other character relating to the issuance of, any equity interests capital stock of the Company Company, or any stock or securities convertible into or exchangeable or exercisable for any such equity interests, or (C) any capital stock appreciation rights, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any equity interests of the Company (the items in clauses (A), (B) Company; and (C) immediately above, together with the Common Shares, being referred to herein collectively as the “Company Securities”).
(iii) Neither the Company nor any Subsidiary thereof is not subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire, to grant any Person a right to subscribe for or acquire, or to register under the Securities Act, any Company Securities.
(iv) Neither shares of capital stock. Except as set forth above in Section 3.6(a), the Company nor any Subsidiary thereof has does not have outstanding any bonds, debentures, notes or other similar debt obligations the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the Shareholders stockholders of the Company or any such Subsidiary on any matter.
Appears in 1 contract
Sources: Merger Agreement (Oracle Healthcare Acquisition Corp.)
Capitalization and Related Matters. (ia) The authorized share capital stock of the Company consists of 600,000,000 shares16,000,000 shares of Company Common Stock and 1,000,000 shares of preferred stock, consisting par value $.10 per share, of the Company (i) 500,000,000 Common Shares and (ii) 100,000,000 the “Preferred Shares.
(ii) As of Stock”). At the close of business on August 15October 26, 2016 2007:
(the “Capitalization Date”), 23,624,014 i) 10,976,549 shares of Company Common Shares were Stock are issued and outstanding, including no restricted shares of Company Common Stock,
(ii) no shares of Preferred Stock are issued and there were no Preferred Shares issued or outstanding.,
(iii) As 89,205 shares of Company Common Stock are held by the Capitalization Date, Company Share Awards representing 2,319,471 Common Shares not subject to performance based vesting were issued and outstanding, Company Share Awards representing 659,800 Common Shares subject to performance based vesting (based on the maximum level of performance) were issued and outstanding, Company Share Options representing 3,185,313 Common Shares were issued and outstanding, of which 2,995,414 were vested and exercisable as of the Capitalization Date, and Company Warrants convertible into 2,000,000 Common Shares were exercisable.treasury shares,
(iv) Section 3.6(a)(iv) an aggregate of 1,974,994 shares of Company Common Stock are reserved and available for issuance pursuant to the Disclosure Letter sets forth as Company’s 2004 Stock and Incentive Award Plan, 1983 Stock Option Plan and 1984 Stock Option Plan (the “Company Option Plans”), and of the close such shares, 1,278,819 shares of business on the Capitalization Date a list of each Company Common Stock are subject to issuance pursuant to outstanding Company Equity Award and Company Warrant and (A) the name of the holder of such Company Equity Award and Company Warrant, (B) the number of Common Shares subject to such outstanding Company Equity Award (based on the maximum level of performance for each Company Share Award that is subject to performance based vesting), (C) the date on which such Company Equity Award and Company Warrant was granted or issued, (D) the exercise price of each Company Share Option and Company Warrant, (E) the expiration date of each Company Share Option and Company Warrant, (F) the extent to which such Company Equity Award is vested as of such date, (G) if such Company Equity Award has performance-vesting criteria and (H) the amount of accrued dividend equivalents with respect to each Company Share Award and Company Warrant.Options and
(v) Section 3.6(a)(v) an aggregate of the Disclosure Letter sets forth as 104,395 shares of the close of business on the Capitalization Date the aggregate exercise price of all Company Share Options that have a per share exercise price that is less than the Merger Consideration.
(i) The outstanding Common Shares have been, Stock are reserved and all Common Shares which may be issued available for issuance pursuant to the exercise or settlement of outstanding Company Equity Awards and Company Warrants are or will be when issued, duly authorized and validly issued and are fully paid, and an acquirer of Common Shares has no obligation to make further payments for its purchase of Common Shares or contributions to Company’s 1985 Employee Stock Purchase Plan (together with the Company solely by reason of Option Plans, the Common Shares or its status as a member of a limited liability company.
(ii) Except for “Company Plans”). Other than the Common Shares issued Company Plans and outstanding as of the Capitalization Date as set forth in Section 3.6(a) (and any Common Shares issued following such date and prior to the date hereof upon the settlement or exercise of Company Equity Awards or Company Warrants), and the Company Equity Awards and Company Warrants listed on Section 3.6(a3.06(a) of the Company Disclosure LetterSchedule, there is no plan or other Contract providing for the grant of options, securities or other rights exercisable or exchangeable for or into shares of Company Common Stock by the Company or any of its Subsidiaries. No shares of Company Common Stock are owned by any Subsidiary of the Company. Section 3.06(a) of the Company Disclosure Schedule sets forth a true and complete list as of the date hereof, except as set forth on Section 3.6(bof all outstanding Company Options, the number of shares of Company Common Stock (or other capital stock) subject thereto, the grant dates, expiration dates, exercise prices and vesting schedules thereof, the names of the Disclosure Letter, no equity interests of the Company are outstanding holders thereof and neither the Company nor any Subsidiary thereof has outstanding (A) any securities convertible into whether or exchangeable for any shares of equity interests of the Company, (B) 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 warrants, calls, repurchase rights, voting rights, commitments or claims of any other character relating to the issuance of, any equity interests not each holder is a current employee of the Company or any of its Subsidiaries and whether or not such Company Option is intended to qualify as an “incentive stock option” under Section 422 of the Code.
(b) On the date hereof, except for the Company Options and as set forth in Section 3.06(a) of the Company Disclosure Schedule, no shares of capital stock of, or other equity or voting interests in, the Company, or any securities convertible into into, or exchangeable for for, any such equity interestsstock, interests or securities, or (C) any options, warrants, shares of deferred stock, restricted stock awards, restricted stock units, stock appreciation or depreciation rights, contingent value performance stock awards and performance stock units, dividend equivalent rights, “phantom” stock awards or similar securities other agreements (to which the Company or any of its Subsidiaries is a party) or calls or rights to acquire or receive any such stock, interests or securities, or other rights that are derivative of, or provide economic benefits based, directly or indirectly, on linked in any way to the value or price of, any equity interests of the Company (Common Stock or the items in clauses (A)value of the Company or any part thereof, (B) and (C) immediately abovewere issued, together with the Common Shares, being referred to herein collectively as the “Company Securities”)reserved for issuance or outstanding.
(iiic) Neither All outstanding shares of capital stock of the Company nor any Subsidiary thereof is are, and all shares which are issuable pursuant to the Company Plans shall be, when issued in accordance with the terms thereof, duly authorized, validly issued, fully paid and non-assessable and not subject to or issued in violation of any obligation (contingent purchase option, call or otherwise) put option, right of first offer or refusal, preemptive right, subscription right or any similar right under any provision of the DGCL, the Company Organizational Documents or any Contract to repurchase which the Company is a party or otherwise acquire or retirebound. Except as set forth in Section 3.06(a), to grant any Person a right to subscribe for or acquire, or to register under the Securities Act, any Company Securities.
there are no (ivi) Neither the Company nor any Subsidiary thereof has outstanding any bonds, debentures, notes or other similar debt evidences of indebtedness of the Company or any of its Subsidiaries and (ii) securities or other instruments or obligations of the holders Company or any of its Subsidiaries, in each case, the value of which is based upon or derived from any capital stock of, or other equity or voting interest in, the Company or which has or which by its terms may have at any time (whether actual or contingent) the right to vote (or are which is convertible into into, or exchangeable or exercisable for for, securities having the right to vote) on any matters on which holders of Company Common Stock may vote whether generally in the election of Company directors or in respect of any other matter for which holders of Company Common Stock are entitled to vote as a matter of Law or pursuant to the Company Organizational Documents. With respect to the Company Options, (A) each Company Option intended to qualify as an “incentive stock option” under Section 422 of the Code so qualifies, (B) each grant of a Company Option was duly authorized no later than the date on which the grant of such Company Option was by its terms to be effective by all necessary corporate action, including, as applicable, approval by the Company Board (or a duly constituted and authorized committee thereof) and any required stockholder approval by the necessary number of votes or written consents, and the award agreement governing such grant (if any) was duly executed and delivered by each party thereto, (C) each such grant was made in accordance with the Shareholders terms of the Company Plans, the Exchange Act and all other applicable Laws and regulatory rules or any requirements, including the rules of NASDAQ, (D) the per share exercise price of each Company Option was not less than the fair market value of a share of Company Common Stock on the applicable date of grant of such Subsidiary on any matterCompany Option and (E) each such grant was properly accounted for in accordance with U.S. GAAP in the financial statements (including the related notes) of the Company and disclosed in the Company SEC Reports in accordance with the Exchange Act and all other applicable Laws. The provisions of the Company Option Plans and the grant agreements governing the Company Options permit the Company Options to be treated in accordance with Section 1.09.
Appears in 1 contract
Sources: Merger Agreement (E-Z-Em, Inc.)
Capitalization and Related Matters. (ia) The authorized share capital stock of the Company consists of 600,000,000 sharestwo million (2,000,000) shares of common stock, consisting of (i) 500,000,000 Common which 957,012 shares are issued and outstanding and constitute the Shares. All of the Shares have been duly authorized and (ii) 100,000,000 Preferred validly issued, 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, 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.
(iib) As of the close of business on August 15, 2016 (the “Capitalization Date”), 23,624,014 Common Shares were issued Schedule 3.3(b) contains a complete and outstanding, and there were no Preferred Shares issued or outstanding.
(iii) As of the Capitalization Date, Company Share Awards representing 2,319,471 Common Shares not subject to performance based vesting were issued and outstanding, Company Share Awards representing 659,800 Common Shares subject to performance based vesting (based on the maximum level of performance) were issued and outstanding, Company Share Options representing 3,185,313 Common Shares were issued and outstanding, of which 2,995,414 were vested and exercisable as of the Capitalization Date, and Company Warrants convertible into 2,000,000 Common Shares were exercisable.
(iv) Section 3.6(a)(iv) of the Disclosure Letter sets forth as of the close of business on the Capitalization Date a correct list of each outstanding Company Equity Award and Company Warrant and Option, including (Ai) the name of the holder of such Company Equity Award and Company Warrantholder, (Bii) the date of grant, (iii) the number of Common Shares shares of Company common stock subject to such outstanding Company Equity Award Option at the time of grant, (based on iv) the maximum level number of performance for each shares of Company Share Award that is common stock subject to performance based vestingsuch 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), (Cvii) 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 Equity Award Option expires and (ix) any accelerated vesting provisions (including specifying whether the vesting of such Company Warrant was granted or issued, (D) Option shall be subject to any acceleration in connection with the exercise price transactions contemplated by this Agreement). Accurate and complete copies of each agreement evidencing a Company Share Option and has been made available to Buyer. All Company Warrant, (E) Options have been appropriately authorized by the expiration date Company’s Board of each Company Share Option and Company Warrant, (F) the extent to which such Company Equity Award is vested as of such date, (G) if such Company Equity Award has performance-vesting criteria and (H) the amount of accrued dividend equivalents with respect to each Company Share Award and Company Warrant.
(v) Section 3.6(a)(v) of the Disclosure Letter sets forth Directors or an appropriate committee thereof as of the close applicable date of business on grant, including approval of the Capitalization Date the aggregate option exercise price of all Company Share Options that have a per share or the methodology for determining the option exercise price that is less than and the Merger Consideration.
(i) The outstanding Common Shares have beensubstantive award terms, and have otherwise been granted in all Common Shares which may material respects in compliance with applicable Law and the terms set forth in applicable Contracts. Each Company Option may, by its terms, be issued pursuant to treated at the exercise or settlement of outstanding Company Equity Awards and Company Warrants are or will be when issued, duly authorized and validly issued and are fully paid, and an acquirer of Common Shares has no obligation to make further payments for its purchase of Common Shares or contributions to the Company solely by reason of the Common Shares or its status as a member of a limited liability company.
(ii) Except for the Common Shares issued and outstanding as of the Capitalization Date Closing as set forth in Section 3.6(a) (1.2(a).All Company Options have an exercise price that has never been and any Common Shares issued following such date and prior to is not less than the fair market value of the Company common stock on the date hereof upon the settlement 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 exercise in contravention of Company Equity Awards or Company Warrants)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 Equity Awards and Company Warrants listed Options disclosed on Section 3.6(aSchedule 3.3(b) of the Disclosure LetterSchedules, as 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 date hereofCompany convertible into or exchangeable or exercisable for shares of capital stock of, except as set forth 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. There are no agreements with respect to the voting or transfer of the Shares to which the Company is a party. Other than the Company Options disclosed on Section 3.6(bSchedule 3.3(b) of the Disclosure Letter, no equity interests of Schedules and other options granted by the Company are outstanding and neither that been exercised or expired, the Company nor has not at any Subsidiary thereof has time issued or granted, and there are no outstanding (A) any securities convertible into or exchangeable for any shares of authorized, compensatory equity or equity-linked interests of with respect to the capital stock of, or other equity or voting interests in, the Company, (B) 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 warrants, calls, repurchase rights, voting rights, commitments or claims of any other character relating to the issuance ofincluding without limitation, any equity interests of the Company or any stock or securities convertible into or exchangeable for any such equity interestsoptions, or (C) any stock appreciation rights, contingent value rights, “phantom” restricted stock or stock unit awards, phantom equity or similar securities awards or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any equity interests of the Company (the items in clauses (A), (B) and (C) immediately above, together with the Common Shares, being referred to herein collectively as the “Company Securities”)rights.
(iii) Neither the Company nor any Subsidiary thereof is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire, to grant any Person a right to subscribe for or acquire, or to register under the Securities Act, any Company Securities.
(iv) Neither the Company nor any Subsidiary thereof has outstanding any bonds, debentures, notes or other similar 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 Shareholders of the Company or any such Subsidiary on any matter.
Appears in 1 contract
Capitalization and Related Matters. (ia) The As of the date hereof, the authorized share capital stock of the Company consists of 600,000,000 shares, consisting 100,000,000 shares of (i) 500,000,000 Company Common Shares Stock and (ii) 100,000,000 10,000,000 shares of Company Preferred Shares.
(ii) Stock. As of the close of business on August 153, 2016 2007:
(the “Capitalization Date”), 23,624,014 i) 7,099,229 shares of Company Common Shares were Stock are issued and outstanding, and there were are no shares of Company Preferred Shares Stock issued or outstanding.;
(iiiii) As 1,300,000 shares of Company Common Stock are reserved for issuance and issuable upon or otherwise deliverable under the Capitalization DateCompany's 2006 Incentive Award Plan, the IsoTis, S.A. Stock Option Plan 2003/0, the IsoTis, S.A. Stock Option Plan 2003/1, the IsoTis, S.A. Stock Option Plan 2003/2 (collectively, the "Company Share Awards representing 2,319,471 Common Shares not subject to performance based vesting were issued and outstanding, Stock Plans") in connection with the exercise of outstanding Company Share Awards representing 659,800 Common Shares subject to performance based vesting (based on the maximum level of performance) were issued and outstanding, Company Share Options representing 3,185,313 Common Shares were issued and outstanding, of which 2,995,414 were vested and exercisable as of the Capitalization Date, and Company Warrants convertible into 2,000,000 Common Shares were exercisable.
(iv) Options. Section 3.6(a)(iv3.6(a)(ii) of the Company Disclosure Letter sets forth as of the close of business on the Capitalization Date a list of forth, for each outstanding Company Equity Award and Company Warrant and Option, whether or not vested, the (Ax) the name of the holder of such Company Equity Award and Company WarrantOption, (B) the number of Common Shares subject to such outstanding Company Equity Award (based on the maximum level of performance for each Company Share Award that is subject to performance based vesting), (C) the date on which such Company Equity Award and Company Warrant was granted or issued, (Dy) the exercise price of each per share for such Company Share Option and Company Warrant, (Ez) the expiration date of each Company Share Option and Company Warrant, (F) the extent to which such Company Equity Award Option; and
(iii) 681,297 shares of Company Common Stock were reserved for issuance, and were issued, pursuant to the consummation of the Swiss Merger.
A. has knowingly granted, and there is vested no and has been no policy or intentional practice by the Company or IsoTis, S.A. to grant, Company Stock Options or options to purchase equity interests of IsoTis, S.A., as applicable, prior to, or otherwise intentionally coordinate the grant of such dateoptions with, the release of material information regarding the Company or its Subsidiaries. Each Company Option was properly accounted for in all material respects in accordance with GAAP in the financial statements (G) if such Company Equity Award has performance-vesting criteria and (H) including the amount of accrued dividend equivalents with respect to each Company Share Award and Company Warrant.
(v) Section 3.6(a)(vrelated notes) of the Disclosure Letter sets forth as Company and its Subsidiaries and disclosed in the filings of the close of business on Company and its Subsidiaries with the Capitalization Date SEC in accordance with the aggregate exercise price of all Company Share Options that have a per share exercise price that is less than the Merger Consideration.
(i) The outstanding Common Shares have been, Exchange Act and all Common Shares which may be issued pursuant to the exercise or settlement of outstanding Company Equity Awards and Company Warrants are or will be when issued, duly authorized and validly issued and are fully paid, and an acquirer of Common Shares has no obligation to make further payments for its purchase of Common Shares or contributions to the Company solely by reason of the Common Shares or its status as a member of a limited liability company.
(ii) other applicable securities laws. Except for the Common Shares issued and outstanding as of the Capitalization Date as set forth above in Section 3.6(a) (and any Common Shares issued following such date and prior to the date hereof upon the settlement or exercise of Company Equity Awards or Company Warrants), and the Company Equity Awards and Company Warrants listed on Section 3.6(a) no shares of the Disclosure Letter, as of the date hereof, except as set forth on Section 3.6(b) of the Disclosure Letter, no equity interests capital stock of the Company are outstanding and neither the Company nor any Subsidiary thereof has does not have outstanding (A) any securities convertible into or exchangeable for any shares of equity interests of the Companycapital stock, (B) including Company 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 warrants, 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 for any capital stock; and the Company is not subject to any obligation (contingent or otherwise) to repurchase rightsor otherwise acquire or retire, voting rightsor to register under the Securities Act, any shares of capital stock. Except as set forth above in Section 3.6(a), the Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter.
(b) All of the outstanding shares of capital stock, or membership interests or other ownership interests of, each Subsidiary of the Company, as applicable, is validly issued, fully paid and nonassessable and is owned of record and beneficially by the Company, directly or indirectly. The Company has, as of the date hereof and shall have on the Closing Date, valid and marketable title to all of the shares of capital stock of, or membership interests or other ownership interests in, each Subsidiary of the Company, free and clear of any Liens other than Permitted Liens. Such outstanding shares of capital stock of, or membership interests or other ownership interests in, the Subsidiaries of the Company, as applicable, are the sole outstanding securities of such Subsidiaries; the Subsidiaries of the Company do not have outstanding any securities convertible into or exchangeable for any capital stock of, or membership interests or other ownership interests in, such Subsidiaries, 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 claims of any other character relating to the issuance of, any equity capital stock of, or membership interests of the Company or other ownership interests in, such Subsidiaries, or any stock or securities convertible into or exchangeable for any such equity interests, or (C) any capital stock appreciation rights, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits basedmembership interests or other ownership interests in, directly or indirectly, on the value or price of, any equity interests of such Subsidiaries; and neither the Company (the items in clauses (A), (B) and (C) immediately above, together with the Common Shares, being referred to herein collectively as the “Company Securities”).
(iii) Neither the Company nor or any Subsidiary thereof of its Subsidiaries is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire, to grant any Person a right to subscribe for or acquire, or to register under the Securities Act, any Company Securities.
(iv) Neither the Company nor capital stock of, or membership interests or other ownership interests in, any Subsidiary thereof has outstanding any bonds, debentures, notes or other similar 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 Shareholders of the Company or any such Subsidiary on any matterCompany.
Appears in 1 contract
Sources: Merger Agreement (Isotis Inc)
Capitalization and Related Matters. (ia) The authorized share capital stock of the Company consists of 600,000,000 shares, consisting 15,000,000 shares of (i) 500,000,000 Company Common Shares and (ii) 100,000,000 Preferred Shares.
(ii) As of the close of business on August 15, 2016 (the “Capitalization Date”), 23,624,014 Common Shares were issued and outstanding, and there were no Preferred Shares issued or outstanding.
(iii) As of the Capitalization Date, Company Share Awards representing 2,319,471 Common Shares not subject to performance based vesting were issued and outstanding, Company Share Awards representing 659,800 Common Shares subject to performance based vesting (based on the maximum level of performance) were issued and outstanding, Company Share Options representing 3,185,313 Common Shares were issued and outstandingStock, of which 2,995,414 were vested 5,485,392 shares have been issued and exercisable are outstanding as of the Capitalization Datedate of this Agreement, and Company Warrants convertible into 2,000,000 Common Shares were exercisable.
(iv) Section 3.6(a)(iv) 1,000,000 shares of the Disclosure Letter sets forth preferred stock, none of which have been issued and are outstanding as of the close date of business on the Capitalization Date a list this Agreement. The Company holds 320,806 shares of each outstanding Company Equity Award and Company Warrant and (A) the name its capital stock in its treasury. All of the holder outstanding shares of such Company Equity Award and Company Warrant, (B) the number of Common Shares subject to such outstanding Company Equity Award (based on the maximum level of performance for each Company Share Award that is subject to performance based vesting), (C) the date on which such Company Equity Award and Company Warrant was granted or issued, (D) the exercise price of each Company Share Option and Company Warrant, (E) the expiration date of each Company Share Option and Company Warrant, (F) the extent to which such Company Equity Award is vested as of such date, (G) if such Company Equity Award has performance-vesting criteria and (H) the amount of accrued dividend equivalents with respect to each Company Share Award and Company Warrant.
(v) Section 3.6(a)(v) of the Disclosure Letter sets forth as of the close of business on the Capitalization Date the aggregate exercise price of all Company Share Options that Stock have a per share exercise price that is less than the Merger Consideration.
(i) The outstanding Common Shares have been, and all Common Shares which may be issued pursuant to the exercise or settlement of outstanding Company Equity Awards and Company Warrants are or will be when issued, been duly authorized and validly issued and are fully paid, paid and an acquirer of Common Shares has no obligation to make further payments for its purchase of Common Shares or contributions to the Company solely by reason of the Common Shares or its status as a member of a limited liability company.
(ii) nonassessable. Except for the Common Shares issued and outstanding as of the Capitalization Date as set forth in Section 3.6(a) (and any Common Shares issued following such date and prior to the date hereof upon the settlement or exercise of Company Equity Awards or Company Warrants), and the Company Equity Awards and Company Warrants listed on Section 3.6(a2.1(a) of the Company Disclosure LetterSchedule: (i) none of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation or any similar right; (ii) none of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor of the Company; and (iii) the Company is not a party to any 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. The Company 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 Company Common Stock.
(b) As 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 Schedule sets forth the following information with respect to each Option that is outstanding as of the date hereofof this Agreement: (i) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Option; (iv) the exercise price of such Option; and (v) the date on which the Option was granted. In addition, except as set forth on Section 3.6(b2.1(b) of the Company Disclosure Letter, no equity interests Schedule shall identify any outstanding Option that was not granted pursuant to a Stock Option Plan of the Company. The Company are outstanding has made available to Parent accurate and neither complete copies of all plans and agreements pursuant to which the Company nor has issued outstanding Options.
(c) Except for Options referred to in Section 2.1(b), there is no (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any Subsidiary thereof has shares of the capital stock or other securities of the Company, (ii) outstanding (A) any securities security, instrument or obligation that is or may become convertible into or exchangeable for any shares of equity interests the capital stock or other securities of the Company, (B) 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 warrants, calls, repurchase rights, voting rights, commitments or claims of any other character relating to the issuance of, any equity interests of the Company or any stock or securities convertible into or exchangeable for any such equity interests, or (C) any stock appreciation rights, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any equity interests of the Company (the items in clauses (A), (B) and (C) immediately above, together with the Common Shares, being referred to herein collectively as the “Company Securities”).
(iii) Neither stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company nor any Subsidiary thereof is subject or may become obligated to any obligation (contingent or otherwise) to repurchase sell or otherwise acquire or retire, to grant issue any Person a right to subscribe for or acquire, or to register under the Securities Act, any Company Securities.
(iv) Neither the Company nor any Subsidiary thereof has outstanding any bonds, debentures, notes or other similar debt obligations the holders shares of which have the right to vote (or are convertible into or exercisable for securities having the right to vote) with the Shareholders of the Company its capital stock or any such Subsidiary on any matterother securities.
Appears in 1 contract