Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of the date of this Agreement. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations. (i) None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (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) there is no Acquired Corporation 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock. (b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option. (c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted. (d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company. (e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts. (f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 4 contracts
Sources: Merger Agreement (Lipson David S), Merger Agreement (Integrated Systems Consulting Group Inc), Merger Agreement (Safeguard Scientifics Inc Et Al)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 50,000,000 shares of Company Common Stock, $.005 .001 par value per sharevalue, of which, as of August 31October 30, 19981997, 8,076,404 10,258,091 shares (which amount does not materially differ from the amount were issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) 5,000,000 shares of preferred stock, $1.00 .001 par value per sharevalue, none of which no shares are outstanding as of the date of this Agreementoutstanding. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 no shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
. Except as set forth in the Company Disclosure Schedule: (i) None none of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participationparticipation in future financings, right of maintenance to maintain a percentage ownership position, 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) there is no Acquired Corporation 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Company Common StockStock or any other securities of any Acquired Corporation.
(b) As of August 31the October 30, 1998, 957,725 1997: (i) 843,149 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to reserved for future issuance pursuant to stock options granted and outstanding options to purchase under the Company's 1994 Incentive Stock Option Plan; (ii) 125,995 shares of Company Common StockStock are reserved for future issuance under the Company's 1995 Employee Stock Purchase Plan (the "ESPP"); and (iii) 118,000 shares of Company Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under the Company's 1995 Director Option Plan. (Stock options granted by the Company pursuant to the Company's stock option plans 1994 Incentive Stock Option Plan and the 1995 Director Option Plan are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the The Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998the date of this Agreement: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.exercise
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i1) the name of the warrant holderholder of such warrant; (ii2) the number of shares of Company Common Stock subject to such Company Warrantwarrant; (iii3) the exercise price of such Company Warrantwarrant; (iv4) the date on which such Company Warrant warrant was grantedissued; (v5) the applicable vesting schedule and the extent to which conditions, if any, limiting exercise of such Company Warrant is vested and exercisable as of the date of this Agreement; warrant and (vii6) the date on which such Company Warrant warrant expires. The Company has delivered to Parent an accurate and complete copies copy of all agreements, certificates and other documents evidencing all warrants which the Company has ever grantedeach such warrant.
(dc) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the CompanyCompany or any other Acquired Corporation; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the CompanyCompany or any other Acquired Corporation; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company or any other Acquired Corporation is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may reasonably give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the CompanyCompany or any other Acquired Corporation. There are no bonds, debentures, notes or other indebtedness of the Company outstanding having the right to vote (or convertible into securities having the right to vote) on any matters on which the shareholders of the Company have the right to vote.
(ed) All outstanding securities of all of the Acquired Corporations, including shares of Company Common Stock, all outstanding Company Options, all outstanding warrants to purchase Company Warrants Common Stock, all outstanding rights under the ESPP and all outstanding shares of capital stock of each Subsidiary subsidiary of the Company have been issued and granted in all material respects in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(fe) The Company Disclosure Schedule sets forth the capitalization and record and beneficial ownership of the outstanding securities of each Acquired Corporation. All of the outstanding shares of capital stock of each of the Entities corporations identified in Part 2.1(a)(i) of the Company Disclosure Schedule have been duly authorized and are validly issued, are fully paid and nonassessable and are (other than Company Common Stock) owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 4 contracts
Sources: Agreement and Plan of Merger and Reorganization (Arris Pharmaceutical Corp/De/), Merger Agreement (Sequana Therapeutics Inc), Merger Agreement (Sequana Therapeutics Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share200,000,000 Shares, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount 93,047,001 Shares had been issued and were outstanding as of the date close of this Agreement) have been issued and are outstandingbusiness on March 3, 2025 (the “Capitalization Date”); and (ii) five hundred thousand (500,000) 10,000,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no shares are were outstanding as of the date of this AgreementCapitalization Date. All of the outstanding shares of Company Common Stock Shares have been duly authorized and validly issued, and are fully paid and nonassessable. As of From the date Capitalization Date to the execution of this Agreement, there are 1,151,109 no Acquired Corporation has issued any shares of Company Common Stock held in treasury capital stock or stock option, stock appreciation, phantom stock, profit participation or similar rights or equity-based awards with respect to any Acquired Corporation except for the issuance by the Company of Shares pursuant to the exercise or settlement of Company Options, Company RSUs, the Company Warrant, or purchase rights under the Company ESPP, in each case that were outstanding as of the Capitalization Date in accordance with their terms, and no Acquired Corporation has issued any Company Options, Company RSUs or other equity based awards. All of the outstanding shares of the capital stock or other equity securities of each Acquired Corporation are held in treasury by any the Company or another Acquired Corporation.
(b) All of the other outstanding Shares and the issued and outstanding shares of the capital stock or ordinary shares of the Acquired CorporationsCorporations have been duly authorized and validly issued, and are fully paid and nonassessable.
(i) None of the outstanding shares of Company Common Stock is capital stock of the Acquired Corporations are entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock is capital stock of the Acquired Corporations are subject to any right of first refusal in favor of the Companyany Acquired Corporation; and (iii) there are no outstanding bonds, debentures, notes or other indebtedness of any Acquired Corporation having a right to vote on any matters on which the stockholders of the Acquired Corporations have a right to vote; and (iv) there is no Acquired Corporation Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation capital stock of the MergerAcquired Corporations. No Acquired Corporation is under any obligation, (A) the shares of Parent Common Stock issued in exchange for or bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of capital stock of the Acquired Corporations. The Shares constitute the only outstanding class of securities of the Company Common Stockregistered under the Securities Act. There are no voting trusts or other Contracts to which any Acquired Corporation is party or of which the Company has knowledge with respect to the voting of any shares of the capital stock of the Acquired Corporations. All outstanding Shares and shares of the capital stock or other equity securities of each Acquired Corporation have been offered and issued in compliance in all material respects with all applicable securities Legal Requirements, including the Securities Act and “blue sky” Legal Requirements.
(bd) As of August 31, 1998, 957,725 shares the close of business on the Capitalization Date: (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreementi) of Company Common Stock are 25,267,415 Shares were subject to issuance pursuant to Company Options granted and outstanding options to purchase Company Common Stock. (Stock options granted by under the Company Equity Plans and pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of inducement grants made outside the Company Disclosure Schedule sets forth the following information with respect to each Equity Plans, which Company Option outstanding as Options have a weighted average exercise price of August 31$3.83, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are 1,683,107 Shares were subject to issuance pursuant to Company RSUs granted and outstanding warrants under the Company Equity Plans, (iii) 5,723,800 Shares were reserved for future issuance under the Company Equity Plans, (iv) 1,462,435 Shares were reserved for future issuance under the Company ESPP and (v) 37,313 Shares were subject to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) issuance upon exercise of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except Other than as set forth in Parts 2.3(b)this Section 3.3, 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is are no: (i) outstanding subscriptionshares of capital stock of or other securities of the Company; (ii) outstanding subscriptions, optionoptions, callcalls, warrant warrants or right rights (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, stock-based performance unit or any other right that is linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock or other securities of the Company, in each case other than derivative securities not issued by an Acquired Corporation; (iiiii) outstanding securitysecurities, instrument instruments, bonds, debentures, notes or obligation obligations that is are or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; or (iiiiv) shareholder stockholder rights plan plans (or similar plan plans commonly referred to as a "“poison pill"”) or Contract Contracts under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities.
(e) Except as set forth in this Sections 3.3(a) and 3.3(d), as of the Capitalization Date there are no issued, reserved for issuance, outstanding or authorized stock option, stock appreciation, phantom stock, profit participation or similar rights or equity-based awards with respect to any Acquired Corporation.
(f) Except as set forth in the last sentence of Section 3.3(a), there are no: (i) outstanding shares of capital stock of or other securities of any Subsidiary of the Company; (ii) outstanding subscriptions, options, calls, warrants or rights (ivwhether or not currently exercisable) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire any shares of the capital stock, restricted stock unit, stock-based performance unit or receive any other right that is linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock or other securities of any Subsidiary of the Company.
, in each case other than derivative securities not issued by an Acquired Corporation; (eiii) All outstanding securities, instruments, bonds, debentures, notes or obligations that are or may become convertible into or exchangeable for any shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of the capital stock or other securities of each any Subsidiary of the Company; or (iv) stockholder rights plans (or similar plans commonly referred to as a “poison pill”) or Contracts under which any Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and is or may become obligated to sell or otherwise issue any shares of its capital stock or any other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contractssecurities.
(fg) All Company Warrants, Company Options and Company RSUs are evidenced by award agreements substantially in the forms that have been provided to Parent.
(h) Since September 30, 2024 , the Company has not declared, authorized or paid any dividends or distributions (including dividend equivalents) on shares of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) Company or other securities of the Company Disclosure Schedule are validly issuedor any of its Subsidiaries, fully paid other than dividends or distributions solely among the Company and nonassessable and are its wholly owned beneficially and of record by Subsidiaries or among the Company, free and clear of any Encumbrances’s wholly owned Subsidiaries.
Appears in 4 contracts
Sources: Agreement and Plan of Merger (Chimerix Inc), Merger Agreement (Jazz Pharmaceuticals PLC), Merger Agreement (Jazz Pharmaceuticals PLC)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 100,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 24,902,080 shares (which amount does not materially differ from the amount are issued and outstanding as of the date of this Agreement) have been issued and are outstandingReference Date; and (ii) five hundred thousand (500,000) 8,000,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no 3,906.51922572953 shares are of Series C-12 Preferred Stock (the “Series C Preferred Stock”) were issued and outstanding as of the date of this AgreementReference Date. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As None of the date of this Agreement, there are 1,151,109 Target Companies (other than the Company) holds any shares of Company Common Stock held in treasury by the Company and no or any rights to acquire shares of stock held in treasury by any of the other Acquired CorporationsCompany Common Stock.
(b) Except as set forth in Part 2.3(b) of the Company Disclosure Schedule: (i) None none of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar rightright pursuant to any certificate of incorporation (or similar organizational document) or Contract to which any Target Company or, to the Company’s knowledge, to which any stockholder of the Company, is a party; (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) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation None of the Merger, (A) the shares of Parent Common Stock issued in exchange for Target Companies is bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, it may become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation obligated to repurchase, redeem or otherwise acquire any outstanding shares of Company Common StockStock or other securities, except for the Company’s right to repurchase or reacquire restricted shares of Company Common Stock held by an employee of the Company upon termination of such employee’s employment or upon any other forfeiture of a vesting condition.
(bc) As of August 31, 1998, 957,725 the Reference Date: (i) 6,452,960 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options Company Equity Awards, all of which are subject to purchase outstanding Company Options; (ii) 262,234 shares of Company Common Stock. Stock have been reserved for future issuance under the Company’s 2018 Employee Stock Purchase Plan (the “Company ESPP”); and (iii) 3,147,040 shares of Company Common Stock options granted by are reserved for future issuance under the Company pursuant to Option Plan. There is neither a current payment or offering period nor any accumulated participant contributions outstanding under the Company's stock option plans are referred to in this Agreement as "Company OptionsESPP."
(d) Part 2.3(b)(i2.3(d) of the Company Disclosure Schedule sets forth the following information a complete and accurate list that sets forth with respect to each Company Option Equity Award outstanding as of August 31, 1998the Reference Date the following information: (i) the particular plan (if any) pursuant to which such Company Option Equity Award was granted; (ii) the name of the optioneeholder of such Company Equity Award; (iii) the type of Company Equity Award; (iv) the number of shares of Company Common Stock subject to such Company OptionEquity Award; (ivv) the per share exercise price (if any) of such Company OptionEquity Award; (vvi) the date on which such Company Option Equity Award was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Equity Award expires (if applicable); (viii) if such Company Equity Award is a Company Option, whether such Company Option expiresis an “incentive stock option” (as defined in the Code) or a non-qualified stock option; (ix) the applicable vesting schedule (and the terms of any acceleration rights thereof); (x) for each holder who is not a current employee of the Target Companies, whether such Person has ever been an employee of the Target Companies; and (xi) the holder’s state of residence or, for any holder who is not a resident of the United States, country of residence. The Company has delivered Made Available to Parent accurate and complete copies of all stock option equity plans pursuant to which any outstanding Company Equity Awards were granted by the Company has ever granted stock options Company, and the form forms of all stock option agreements evidencing such optionsCompany Equity Awards. The exercise price of each Company Option is not less than the fair market value of a share of Company Common Stock as determined on the date of grant of such Company Option. All grants of Company Equity Awards were recorded on the Company’s financial statements (including any related notes thereto) contained in the Company SEC Documents in accordance with GAAP and with all applicable Legal Requirements, and no such grants involved any “back dating” or similar practices with respect to the effective date of grant (whether intentionally or otherwise). There are no commitments outstanding or agreements authorized restricted stock, restricted stock unit, stock appreciation, phantom stock, profit participation or similar rights or equity-based awards with respect to any of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company OptionTarget Companies.
(ce) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) All outstanding shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) and other securities of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: Target Companies, (i) the name of the warrant holderhave been issued and granted in compliance in all material respects with: (A) all applicable securities laws and other applicable Legal Requirements, and (B) all requirements set forth in applicable Contracts and Company Employee Plans; and (ii) the number of shares of Company Common Stock subject to each such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) grant was duly authorized no later than the date on which such Company Warrant grant was granted; by its terms effective (vthe “Grant Date”) the applicable vesting schedule by all necessary corporate action, and the extent to which award agreement governing such Company Warrant is vested grant was duly executed and exercisable as of delivered by each party thereto within a reasonable time following the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever grantedGrant Date.
(df) Except as set forth in Parts 2.3(bSections 2.3(a), 2.3(c) or 2.3(d) ), as of the Company Disclosure Schedule Reference Date, there is no: (i) outstanding subscription, option, call, warrant warrant, preemptive, participation, maintenance, right of first refusal, conversion, redemption, share appreciation, repurchase or right other (whether or not currently exercisable) to acquire any issued or unissued shares of the capital stock or other securities of any of the CompanyTarget Companies; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the CompanyTarget Companies; (iii) shareholder stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which any of the Company Target Companies is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition restricted shares, stock appreciation rights, performance units, contingent value rights, “phantom” stock or circumstance similar securities or rights that may give rise to are derivative of, or provide a basis for economic benefits based, directly or indirectly, on the assertion of a claim by value or price of, any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock of or other voting securities of the Company.
(eg) All outstanding shares of Company Common Stock, all outstanding Options and other Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company Equity Awards (i) have been issued and granted in compliance with in all material respects with: (iA) all applicable securities laws and other applicable Legal Requirements, and (iiB) all requirements set forth in applicable ContractsContracts and Company Employee Plans; and (ii) each such grant was duly authorized no later than the Grant Date by all necessary corporate action, and the award agreement governing such grant was duly executed and delivered by each party thereto within a reasonable time following the Grant Date.
(fh) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are Company’s Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights, and are owned beneficially and of record by the Company, free and clear of any Encumbrances (other than restrictions on transfer imposed by applicable securities laws or any Company Permitted Encumbrances).
(i) The Requisite Holders (as defined in the Company’s certificate of incorporation) of the Series C Preferred Stock have by written consent waived the right of the holders of Series C Preferred Stock as to all shares of Series C Preferred Stock (and the holders thereof) to approve a Change of Control (as defined in the Company’s certificate of incorporation) as relating to the Offer and the Merger, which right is provided for in Article IV, Section (d)(9)(B) of the Company’s certificate of incorporation, pursuant to and in accordance with Article IV, Section 10(F) of the Company’s certificate of incorporation. The Company has Made Available to Parent an accurate and complete copy of such written consent.
Appears in 3 contracts
Sources: Merger Agreement (La Jolla Pharmaceutical Co), Merger Agreement (La Jolla Pharmaceutical Co), Merger Agreement (Innoviva, Inc.)
Capitalization, Etc. (a) The As of April 12, 2012 (the "Capitalization Date"), the authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) consisted of 56,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 14,323,715 shares (which amount does not materially differ from the amount were issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) 2,000,000 shares of preferred stock, $1.00 par value $0.001 per share, of the Company, of which no shares are outstanding as were issued or outstanding. As of the date Capitalization Date: (i) 848,231 shares of this AgreementCompany Common Stock were held in the treasury of the Company, (ii) 4,939,647 shares of Company Common Stock were subject to issuance pursuant to outstanding stock options granted under the Company Option Plans (stock options granted by the Company pursuant to the Company Option Plans or otherwise are referred to collectively herein as "Company Options") and (iii) 104,770 shares of Company Common Stock were subject to issuance pursuant to outstanding Company RSUs. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there There are 1,151,109 no shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) Company's Subsidiaries. None of the outstanding shares of Company Common Stock is are entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock is right or subject to any right of first refusal in favor of the Company; Company and (iii) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for The Company is not under any shares of Company Common Stock that are subject to a obligation or bound by any Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, it may become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation obligated to repurchase, redeem or otherwise acquire any outstanding shares of Company Common StockStock or any capital stock of any of the Company's Subsidiaries.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i3.4(b) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this AgreementCapitalization Date: (i) the name of the warrant holder; optionee, (ii) the number of shares of Company Common Stock subject to such Company Warrant; Option, (iii) the exercise price of such Company Warrant; Option, (iv) the date on which such Company Warrant Option was granted; , (v) the applicable vesting schedule and the extent to which such Company Warrant Option is vested and exercisable as of the date of this Agreement; Capitalization Date and (viivi) the date on name of the Company Option Plan under which such Company Warrant expiresOption was granted. The Company has delivered All vesting will be accelerated immediately prior to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which contingent upon the Company has ever grantedEffective Time.
(dc) Except as set forth in Parts 2.3(b), 2.3(cSection 3.4(a) or 2.3(dSection 3.4(b) above, as of the Company Disclosure Schedule Agreement Date, there is no: no (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company; , (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; Company or (iii) shareholder rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(ed) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants RSUs and all outstanding shares of capital stock of each Subsidiary other securities of the Company have been issued and granted in compliance with (i) all applicable securities laws Laws and other applicable Legal Requirements, Laws and (ii) all requirements set forth in applicable Contracts. All outstanding Company Options were granted with a per share exercise price no lower than the fair market value of one share of Company Common Stock as of the grant date. All shares of Company Common Stock subject to issuance pursuant to Company Options and Company RSUs will, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, be duly authorized, validly issued, fully paid, and nonassessable.
(fe) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are Company's Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof, and are owned beneficially and of record by the Company or another wholly-owned Subsidiary of the Company, free and clear of any Encumbrances, other than restrictions on transfer imposed by applicable securities Laws.
Appears in 3 contracts
Sources: Agreement and Plan of Merger and Reorganization (SRS Labs Inc), Merger Agreement (Dts, Inc.), Merger Agreement (SRS Labs Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 175,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 76,904,133 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of the date of this Agreement; and (ii) 10,000,000 shares of Preferred Stock, $.001 par value per share, (A) 170,000 shares of which have been designated "Series A Preferred Stock," none of which are outstanding as of the date of this Agreement, (B) 230,000 shares of which have been designated "Series B Preferred Stock," none of which are outstanding as of the date of this Agreement and (C) 1,200,000 of which have been designated "Series B Junior Participating Preferred Stock," none of which are outstanding as of the date of this Agreement. The Company does not hold any shares of its capital stock in its treasury. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there There are 1,151,109 no shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any either of the other Acquired Corporations.
(i) Company's Subsidiaries. None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii) none . None of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor of any of the Company; and (iii) there Acquired Corporations. There is no Acquired Corporation 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) all of the particular plan shares of the Company's Series B Junior Participating Preferred Stock are reserved for future issuance upon exercise of the rights (the "Rights") issued pursuant to which such the Rights Agreement, dated as of February 1, 1999 between the Company Option was grantedand American Stock Transfer & Trust Company, as Rights Agent (as amended by that certain Amendment to Rights Agreement, dated as of June 2, 1999, that certain Amendment to Rights Agreement, dated as of August 24, 2001, and that certain Amendment to Rights Agreement, dated as of July 30, 2002, the "Company Rights Agreement"); (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) 10,953,922 shares of Company Common Stock are subject to issuance pursuant to stock options granted and outstanding warrants to purchase Company Common under the Company's Amended and Restated 1996 Stock Incentive Plan (the "Company WarrantsOption Plan"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (iiiii) the number of 58,040 shares of Company Common Stock subject are reserved for future issuance pursuant to such Company Warrant; the Company's 1996 Employee Stock Purchase Plan (iii) the exercise price of such Company Warrant"ESPP"); (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding 2,300,000 shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of Stock are reserved for future issuance pursuant to the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, CEO Incentive Plan; and (iiv) all requirements set forth in applicable Contracts.
(f) All of the outstanding 300,000 shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.of
Appears in 3 contracts
Sources: Merger Agreement (Triangle Pharmaceuticals Inc), Merger Agreement (Triangle Pharmaceuticals Inc), Merger Agreement (Gilead Sciences Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 30,000,000 shares of Company Common Stock and 5,000,000 shares of Company Preferred Stock. As of March 16, $.005 par value per share2001, 12,353,818 shares of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount Company Common Stock have been issued and are outstanding as and no shares of the date of this Agreement) Company Preferred Stock have been issued and are outstanding; and (ii) five hundred thousand (500,000) . No shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as capital stock of the date of this AgreementCompany are held in the Company's treasury. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there There are 1,151,109 no shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) Company's Subsidiaries. None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock is right or subject to any right of first refusal in favor of the Company; Company and (iii) there is no Acquired Corporation 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. Upon consummation None of the MergerConstituent Corporations is under any obligation, (A) the shares of Parent Common Stock issued in exchange for or is bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31March 16, 1998, 957,725 2001: (i) 350,950 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to reserved for issuance pursuant to outstanding stock options under the Company 1992 Stock Option Plan and options to purchase acquire 56, 500 shares of Company Common Stock. Stock are outstanding; (ii) 303,501 shares of Company Common Stock are reserved for issuance pursuant to stock options under the Company 1993 Stock Option Plan and options to acquire 5,875 shares of Company Common Stock are outstanding; (iii) 107,750 shares of Company Common Stock are reserved for issuance pursuant to stock options under the Company 1994 Stock Option Plan and options to acquire 5,500 shares of Company Common Stock are outstanding; (iv) 85,633 shares of Company Common Stock are reserved for issuance pursuant to stock options under the Company 1995 Stock Option Plan and options to acquire 5,677 shares of Company Common Stock are outstanding; (v) 2,400,000 shares of Company Common Stock are reserved for issuance pursuant to stock options under the Company 1996 Incentive and Nonqualified Stock Option Plan and options to acquire 1,870,464 shares of Company Common Stock are outstanding; (vi) 150,000 shares of Company Common Stock are reserved for issuance pursuant to stock options under the Company 1997 Director Stock Option Plan and options to acquire 125,000 shares of Company Common Stock are outstanding; and (vii) 200,000 shares of Company Common Stock are reserved for issuance pursuant to the Company's 1996 Employee Stock Purchase Plan (the "Company ESPP") (Stock options granted by the Company pursuant to the Company's stock option plans Company Stock Option Plans or otherwise are referred to in this Agreement collectively herein as "Company Options.") Part 2.3(b)(i2.3(b) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31March 16, 19982001: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options Company Options, and the form forms of all stock option agreements evidencing such options. There are no commitments or agreements The Merger and the transactions contemplated herein has not and will not result in the acceleration of any character to which the Company is bound obligating the Company to accelerate the vesting of schedule for any Company OptionOptions.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(cSection 2.3(a) or 2.3(d(b) of the Company Disclosure Schedule above, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of any of the CompanyConstituent Corporations; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the CompanyConstituent Corporations; (iii) shareholder rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which any of the Company is Constituent Corporations are or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of any of the CompanyConstituent Corporations (items (i) through (iv) above, collectively, "Company Stock Rights").
(ed) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants Options and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) . All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule Company's Subsidiaries have been duly authorized and are validly issued, are fully paid and nonassessable and and, except for directors' qualifying shares, are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 3 contracts
Sources: Merger Agreement (Cuseeme Networks Inc), Merger Agreement (First Virtual Communications Inc), Merger Agreement (Cuseeme Networks Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million 18,000,000 Shares (25,000,000including Company Restricted Shares), of which 11,524,463 Shares were issued and outstanding and no Shares were issued and held in the treasury of the Company, in each case, as of the close of business on February 4, 2015; and (ii) 1,000,000 shares of Company Common Preferred Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which no shares (which amount does not materially differ from the amount were issued and outstanding (or held in treasury) as of the close of business on February 4, 2015. Between the close of business on February 4, 2015 and the date of this Agreement) have been , the Company has not issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stockcapital stock or other securities of the Company, $1.00 par value per shareother than upon the exercise of Company Options or the vesting or settlement of Company Stock Awards, of which no shares are in each case, outstanding as of the date close of this Agreementbusiness on February 4, 2015, pursuant to the terms of such Company Options or Company Stock Award. All of the outstanding shares of Company Common Stock Shares have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(b) Except as set forth in Part 3.3(b) of the Company Disclosure Schedule: (i) None none of the outstanding shares of Company Common Stock Shares is entitled or subject to any preemptive right, antidilutive right, right of repurchase or forfeiture, right of participation, right of maintenance maintenance, conversion right, redemption right or any similar right; (ii) none of the outstanding shares of Company Common Stock Shares is subject to any right of first refusal in favor of the Company; and (iii) there are no outstanding bonds, debentures, notes or other indebtedness of the Acquired Corporations having a right to vote (or convertible into or exercisable for such securities having the right to vote) on any matters on which the stockholders of the Company have a right to vote; (iv) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such ContractShares. None of the Acquired Corporations is under any obligation obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Shares or other Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Optionsecurities.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) the Company has no shares of Company Common Stock are capital stock reserved for issuance, except for (i) 515,721 Shares subject to issuance pursuant to Company Options granted and outstanding warrants under the Company Equity Plans, and (ii) 175,000 shares of Series B Preferred Stock subject to purchase Company Common Stock issuance upon the exercise of rights issued pursuant to the Shareholder Rights Plan and ("Company Warrants"). Part 2.3(ciii) an indeterminate number of Shares subject to issuance pursuant to the ESPP as of February 28, 2015, the end of the current offer period under the ESPP. The Company Disclosure Schedule sets forth has made available to Parent or Parent’s Representatives in the following information with respect Data Room prior to each the date of this Agreement true and complete copies of the ESPP and all Company Warrant Equity Plans covering the Company Options and Company Restricted Shares outstanding as of the date of this Agreement: , the forms of all stock award agreements evidencing such Company Options and Company Restricted Shares (i) and any other stock award agreements to the name extent there are material variations from the form of agreement). Each outstanding Company Option was granted in compliance in all material respects with all applicable Law and all of the warrant holder; (ii) terms and conditions of the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent Equity Plan pursuant to which such it was issued. Part 3.3(c) of the Company Warrant is vested Disclosure Schedule contains a correct and exercisable complete list of each outstanding Company Option and Company Stock Award as of the date of this Agreement; , including the holder’s name, date of grant, exercise or purchase price (if applicable), number of Shares subject thereto, number of Shares subject thereto that have vested as of such date, vesting schedule, whether any Company Option is intended to qualify as an Incentive Stock Option (within the meaning of the Code), and (vii) the date on Company Equity Plan under which such Company Warrant expires. The Option and Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever Stock Award was granted.
(d) All of the outstanding capital stock, ownership interests in and other securities of each Subsidiary of the Company are duly authorized, validly issued, fully paid and nonassessable and, except as set forth in Part 3.3(d) of the Company Disclosure Schedule, are owned, directly or indirectly, by the Company, free and clear of any Encumbrance. Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(dPart 3.3(d) of the Company Disclosure Schedule Schedule, none of the Acquired Corporations owns any capital stock, ownership interests in or other securities of any Person, except for securities in another Acquired Corporation.
(e) Except as set forth in Part 3.3(e) of the Company Disclosure Schedule, there is no: (i) outstanding subscription, option, call, warrant warrant, agreement, arrangement, commitment or other right (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, stock-based performance unit, shares of phantom stock, stock appreciation right, profit participation right or any other right that is linked to, or the value of which is in any way based on or derived from, the value of any shares of capital stock or other securities of any of the CompanyAcquired Corporations; (ii) outstanding security, instrument instrument, bond, debenture, note or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the Company; Acquired Corporations or (iii) shareholder stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which any of the Company Acquired Corporations is or may become obligated to sell or otherwise issue issue, or register, any shares of its capital stock or any other securities; or (iv. Except as set forth in Part 3.3(e) condition or circumstance that may give rise to or provide a basis of the Company Disclosure Schedule and except for the assertion of Voting Agreements, there are no stockholder agreements, voting trusts or other agreements or understandings to which any Acquired Corporation is a claim by any Person party relating to the effect that such Person is entitled to acquire voting or receive disposition of any shares of the capital stock or other securities of any Acquired Corporation, or granting to any Person or group of Persons the Company.
right to elect, or to designate or nominate for election, a director to the Board of Directors (eor similar governing body) of any Acquired Corporation. All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary dividends or distributions on securities of the Company that have been issued and granted declared on or prior to the date of this Agreement have been paid in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contractsfull.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (RR Donnelley & Sons Co), Merger Agreement (COURIER Corp)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 150,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 76,486,519 shares (which amount does not materially differ from the amount issued and outstanding as excluding shares of the date of this AgreementCompany Restricted Stock) have been issued and are outstandingoutstanding as of December 16, 2020 (the “Measurement Time”); and (ii) five hundred thousand (500,000) 15,000,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no shares have been issued or are outstanding as of the date of this Agreement. Except to the extent issued in connection with exercises of Company Options included in Section 2.3(b)(i) or conversions of any Company Convertible Notes, from the Measurement Time until and including the date of this Agreement, the Company has not issued any shares of Company Common Stock. As of the Measurement Time, 2,001,875 shares of Company Common Stock are held by the Company as treasury stock. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of Except for the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and as treasury stock, there are no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock is entitled or subject to held by any preemptive right, right of participation, right of maintenance 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) there Acquired Companies. There is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock, except for the Confidentiality Agreement. Upon consummation Except as set forth in Part 2.3(a) of the MergerDisclosure Schedule, (A) none of the shares of Parent Common Stock issued in exchange for Acquired Companies is under any shares of Company Common Stock that are subject to a obligation, or is bound by any Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common StockStock or other securities of the Company (including any Company Equity Awards, except pursuant to the forfeiture conditions of such Company Equity Awards or the cashless exercise or Tax withholding provisions of or authorizations related to such Company Equity Awards as in effect as of the date of this Agreement).
(b) As of August 31, 1998, 957,725 the close of business on the Measurement Time:
(i) 395,896 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to Company Options granted and outstanding under the Company Equity Plans;
(ii) 678,692 shares of Company Common Stock are reserved for future issuance pursuant to outstanding options in respect of the current “offering period” under the Company’s Amended and Restated 2013 Employee Stock Purchase Plan (the “ESPP”);
(iii) 582,841 shares of Company Common Stock are subject to purchase issuance and/or delivery pursuant to Company RSUs granted and outstanding under the Company Equity Plans (reflecting Company RSUs that vest based on performance-based vesting requirements assuming deemed achievement of maximum performance) (including 88,649 shares of Company Common Stock subject to issuance and/or delivery pursuant to Company RSUs that have vested and Company RSUs, in each case, credited to the Directors Deferred Compensation Plan);
(iv) 790,784 shares of Company Restricted Stock are outstanding under the Company Equity Plans (reflecting shares of Company Restricted Stock that vest based on performance-based vesting requirements assuming deemed achievement of maximum performance);
(v) 1,025,981 Company SARs (denominated in shares of Company Common Stock. (Stock options ) are granted by and outstanding under the Company Equity Plans (including both cash- and stock-settled Company SARs);
(vi) no Company Equity Awards are outstanding other than those granted under the Company Equity Plans and the ESPP and referenced in the preceding clauses (i) through (v);
(vii) 4,846,698 shares of Company Common Stock are reserved for future issuance pursuant to Company Equity Awards not yet granted under the Company Equity Plans and the ESPP; and
(viii) 888 phantom shares of Company Common Stock are credited to accounts under and pursuant to the Company's stock option plans are referred Company Deferred Compensation Plans (excluding the 88,649 vested and unvested Company Equity Awards subject to issuance and/or delivery pursuant to such Company Deferred Compensation Plans reflected in (iii) above). From the Measurement Time until and including the date of this Agreement as "Agreement, the Company Options.") has not issued any equity awards of the type described in the preceding sentence, except with respect to any Company Option or Company SAR exercised by Company Associates during such period. Part 2.3(b)(i2.3(b) of the Company Disclosure Schedule accurately sets forth the following information with respect to each Company Option Equity Award outstanding as of August 31, 1998the Measurement Time: (iA) the particular plan Company Equity Plan (if any) pursuant to which such Company Option Equity Award was granted; (iiB) the name name, or, to the extent required by applicable Information Privacy and Security Laws, an employee identification number, of the optioneeholder of such Company Equity Award; (iiiC) the number of shares of Company Common Stock subject to such Company OptionEquity Award (including, for Company Equity Awards subject to performance-based vesting requirements, the maximum number of shares of Company Common Stock); (ivD) the exercise price (if any) of such Company OptionEquity Award; (vE) the grant date of such Company Equity Award; (F) the applicable vesting schedule and/or vesting date, and the extent to which such Company Equity Award is vested and/or exercisable; (G) the date on which such Company Option was grantedEquity Award expires; (viH) if such Company Equity Award is a Company Option, whether it is an “incentive stock option” (as defined in the Code) or a non-qualified stock option; (I) if such Company Equity Award is a Company RSU, whether such Company RSU is subject to Section 409A of the Code and the regulations and guidance thereunder (“Section 409A” ); and (J) if such Company Equity Award is a Company RSU, the dates on which shares of Company Common Stock are scheduled to be delivered, if different from the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expiresschedule. The Company has delivered Made Available to Parent accurate and complete copies of all stock option equity-based plans or, if not granted under an equity plan, such other Contract, pursuant to which the any stock options, stock appreciation rights, restricted stock units, deferred stock units or restricted stock awards (including all outstanding Company has ever granted stock options and the form of all stock option agreements evidencing such options. There Equity Awards, whether payable in equity, cash or otherwise) are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule , and the extent to which forms of all stock option, stock appreciation right, restricted stock unit, deferred stock unit and restricted stock award agreements evidencing such Company Warrant is vested and exercisable stock options, stock appreciation rights, restricted stock units, deferred stock units or restricted stock awards (whether payable in equity, cash or otherwise) as of the date of this Agreement; . The exercise price of each Company Option, and (vii) the ▇▇▇▇▇ ▇▇▇▇▇ of each Company SAR, is no less than the fair market value of a share of Company Common Stock as determined on the date on which of grant of such Company Warrant expiresOption or such Company SAR, as the case may be. The All grants of Company has delivered Equity Awards were recorded on the Company’s financial statements (including any related notes thereto) contained in the Filed SEC Reports in accordance with GAAP, and no such grants involved any “back dating,” “forward dating” or similar practices with respect to Parent accurate and complete copies the effective date of all agreements, certificates and other documents evidencing all warrants which the Company has ever grantedgrant (whether intentionally or otherwise).
(dc) Except as set forth in Parts Part 2.3(b), ) and Part 2.3(c) or 2.3(d) of the Disclosure Schedule, as contemplated by the Company Disclosure Schedule Convertible Notes Indenture and for shares of Company Common Stock issued following the Measurement Time pursuant to the exercise or vesting of Company Equity Awards outstanding as of the Measurement Time, as of the date of this Agreement there is no: (i) outstanding equity-based compensation award, subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of any of the CompanyAcquired Companies (including any subscription or other right to purchase shares of Company Common Stock under the ESPP); (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the CompanyAcquired Companies; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which any of the Company Acquired Companies is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give that, to the Knowledge of the Company, gives rise to or provide provides a reasonable basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of any of the CompanyAcquired Companies.
(ed) All Except as set forth on Part 2.3(d) of the Disclosure Schedule, all outstanding shares of Company Common Stock, all outstanding Company Optionsoptions, all outstanding Company Warrants warrants, equity-based compensation awards (whether payable in equity, cash or otherwise) and all outstanding shares of capital stock of each Subsidiary other securities of the Company Acquired Companies have been issued and granted in compliance with in all material respects with: (i) all applicable securities laws and other applicable Legal Requirements, Laws; and (ii) all requirements set forth in applicable Contracts.
(fe) All Except as set forth on Part 2.3(e) of the Disclosure Schedule, all of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are Company’s Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights, and are owned beneficially and of record by the Company or another Acquired Company, free and clear of any Encumbrances.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Lockheed Martin Corp), Merger Agreement (Aerojet Rocketdyne Holdings, Inc.), Merger Agreement
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 200,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 75,031,225 shares (which amount does not materially differ from the amount have been issued and were outstanding as of April 15, 2005; and (ii) 5,000,000 shares of Company Preferred Stock, of which no shares have been issued or are outstanding. No shares of Company Common Stock have been issued by the Company during the period commencing on April 16, 2005 and ending on the date of this Agreement) . As of April 15, 2005, 13,197,154 shares of Company Common Stock were subject to issuance pursuant to outstanding Company Options. No Company Options have been issued granted during the period commencing on April 16, 2005 and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of ending on the date of this Agreement.
(b) As of April 15, 2005, the Company held 1,835,939 shares of its capital stock in its treasury. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As None of the date Acquired Corporations holds any shares of this AgreementCompany Common Stock or any rights to acquire shares of Company Common Stock, there are 1,151,109 other than the shares of Company Common Stock held in the Company's treasury by referred to in the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) preceding sentence. None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii) none . None of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor of the Company; and (iii) . To the knowledge of the Company, there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation Except as set forth in Part 2.3(b) of the MergerCompany Disclosure Schedule, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None none of the Acquired Corporations is under any obligation obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31Stock or other securities, 1998, 957,725 except for the Company's right to repurchase restricted shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to held by an employee of the Company upon termination of such employee's employment.
(c) As of April 15, 2005, 1,000,000 shares of Company Preferred Stock, designated as Series A Junior Participating Preferred Stock, were reserved for future issuance upon exercise of the rights (the "Company Rights") issued pursuant to outstanding options to purchase the Rights Agreement dated as of October 25, 2001, between the Company and Mellon Investor Services LLC, as Rights Agent (the "Company Rights Agreement"). As of April 15, 2005: (i) 751,541 shares of Company Common Stock. (Stock options granted by the Company were reserved for future issuance pursuant to the Company's stock option plans are referred to in this Agreement as 2003 Employee Stock Purchase Plan (the "Company Options.ESPP"); and (ii) 106,445 shares of Company Common Stock were reserved for future issuance pursuant to stock options not yet granted under the Company Option Plans. Part 2.3(b)(i2.3(c) of the Company Disclosure Schedule accurately sets forth the following information with respect to each Company Option and each share subject to any repurchase right of the Company, in each case that were outstanding as of August 31April 15, 19982005: (iA) the particular plan Company Option Plan (if any) pursuant to which such Company Option was granted; (iiB) the name employee identification number of the optioneeholder of such Company Option or the shares subject to such repurchase right; (iiiC) the number of shares of Company Common Stock subject to such Company OptionOption or repurchase right; (ivD) the exercise price of such Company Option; (vE) the date on which such Company Option was grantedgranted or the shares subject to such repurchase right were issued; (viF) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of or the date of this Agreementextent to which the shares subject to such repurchase right have vested; and (viiG) the date on which such Company Option expires; and (H) whether the vesting of such Company Option or the shares subject to such repurchase right would be accelerated, in whole or in part, as a result of the Merger or any of the other Contemplated Transactions, alone or in combination with any termination of employment or other event. The Company has delivered to Parent accurate and complete copies of all of: (1) each Company Option Plan; (2) each other stock option plans plan pursuant to which any of the Company Acquired Corporations has ever granted stock options and to the form of all extent that any options remain outstanding thereunder; (3) each stock option agreements evidencing such options. There are no commitments or agreements of plan under which any character to which the Company is bound obligating the Company to accelerate the vesting of Entity has granted stock options that were ever assumed by any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject Acquired Corporations to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreementthat any options remain outstanding thereunder; and (vii4) the date on which such standard form of stock option agreement for each Company Warrant expires. The Option Plan and each standard form of stock option agreement used in connection with outstanding "non-plan" Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever grantedOptions granted by any Acquired Corporation.
(d) Except as set forth in Parts 2.3(b), Section 2.3(c) or in Part 2.3(c) or Part 2.3(d) of the Company Disclosure Schedule (with respect to the aggregate data therein), as of the date of this Agreement, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; or (iii) shareholder stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which any of the Company Acquired Corporations is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary options and other securities of the Company Acquired Corporations, have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts, except where such noncompliance would not have, and would not reasonably be expected to have or result in, a Company Material Adverse Effect.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are Company's Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights and are owned beneficially and of record by the Company (except with respect to those Company's Subsidiaries organized under the laws of foreign jurisdictions where shares of capital stock are required under applicable Legal Requirements to be held by one or more directors, employees or agents of such Subsidiary), free and clear of any Encumbrancesmaterial Encumbrances (other than restrictions on transfer imposed by applicable securities laws).
Appears in 3 contracts
Sources: Merger Agreement (Macromedia Inc), Merger Agreement (Adobe Systems Inc), Merger Agreement (Adobe Systems Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five six million (25,000,000) shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 16,861,385 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of the date of this Agreement. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 no shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
. Except as set forth in Part 2.3(a) of the Company Disclosure Schedule: (i) None none of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (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) there is no Acquired Corporation 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement: (i) 639,499 shares of Company Common Stock are subject to reserved for future issuance pursuant to stock options granted and outstanding under the Company’s 2006 Equity Incentive Plan; (ii) 748,928 shares of Company Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under the Company’s 2005 Equity Incentive Plan; (iii) 161,560 shares of Company Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under the Company’s 2002 Equity Incentive Plan;(iv) 22,860.5 shares of Company Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under the Company’s 2001 Equity Incentive Plan; (v) 38,335.4 shares of Company Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under the Company’s 1995 Stock Option Plan; (vi) 28,600.2 shares of Company Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under the Interland-Georgia 1999 Stock Plan; and (vii) 1,875,000 shares of Company Common Stock are reserved for future issuance pursuant to stock options granted and outstanding outside any other written stock option plan. (Options to purchase shares of Company Common Stock. Stock (Stock options whether granted by the Company pursuant to the Company's ’s stock option plans plans, assumed by the Company in connection with any merger, acquisition or similar transaction or otherwise issued or granted) are referred to in this Agreement as "“Company Options."”) Part 2.3(b)(i2.3(b) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998the date of this Agreement: (i) the particular plan (if any) pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule schedule, and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which any of the Company Acquired Corporations has ever granted stock options (other than any stock option plans pursuant to which (A) no options are presently outstanding; and (B) no options may be granted in the future), and the form forms of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts Part 2.3(b), 2.3(c) or 2.3(dPart 2.3(c) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; (iii) shareholder stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which any of the Company Acquired Corporations is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a reasonable basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of any of the CompanyAcquired Corporations.
(ed) All outstanding shares Except as set forth in Part 2.3(d) of the Company Common StockDisclosure Schedule, all outstanding Company Optionscapital stock, all outstanding Company Warrants options and all outstanding shares of capital stock of each Subsidiary other securities of the Company Acquired Corporations have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(fe) All Except as set forth in Part 2.3(e) of the Company Disclosure Schedule, all of the outstanding shares of capital stock of each of the Entities corporations identified in Part 2.1(a)(i2.1(a)(ii) of the Company Disclosure Schedule have been duly authorized and are validly issued, are fully paid and nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof, and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 3 contracts
Sources: Merger Agreement (Website Pros Inc), Merger Agreement (WEB.COM, Inc.), Merger Agreement (Website Pros Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 150,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 8,736,690 shares (which amount does not materially differ from the amount have been issued and are outstanding as of the date of this Agreement) have been issued and are outstandingAgreement including the Escrow Shares (as such term is hereinafter defined); and (ii) five hundred thousand (500,000) 10,000,000 shares of preferred stockPreferred Stock, $1.00 .01 par value per share, of which no shares are outstanding currently issued or are outstanding; and (iii) 1,200,000 shares of Preferred Stock have been designated as Series J Convertible Preferred Stock, of which no shares are currently issued or are outstanding. Except as set forth in Part 3.3(a)(i) of the date Company Disclosure Schedule, the Company does not hold any shares of this Agreementits capital stock in its treasury. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there There are 1,151,109 no shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
. There are 141,863 shares of Company Common Stock that are subject to a certain Performance Share Escrow Agreement, dated October 15, 1992, as amended (such shares being referred to as the “Escrow Shares”), and are held in an escrow by Montreal Trust Company of Canada, as escrow agent (the “Escrow Agent”). Except as set forth in Part 3.3(a)(ii) of the Company Disclosure Schedule: (i) None none of the outstanding shares of Company Common Stock or the capital stock of any of the Acquired Corporations is entitled or to, subject to or bound by any outstanding option, warrant, call, subscription right, preemptive right, right of participation, right of maintenance or any similar rightother right agreement or commitment which (a) obligates Company or any Subsidiary of Company to issue, sell or transfer any shares of the capital stock of Company or any Subsidiary of Company, (b) restricts the transfer of any shares of capital stock of Company or any of its Subsidiaries, or (c) relates to the voting of any shares of capital stock of Company or any of its Subsidiaries; (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) there is no Acquired Corporation 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock. Part 3.3(a)(iii) of the Company Disclosure Schedule describes all repurchase rights held by the Company with respect to shares of Company Common Stock (whether such shares were issued pursuant to the exercise of Company Options or otherwise).
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement: (i) 265,807 shares of Company Common Stock are subject to issuance pursuant to stock options granted and outstanding under the Company’s 2001 Stock Plan, and options relating to purchase an additional 74,193 shares of Company Common Stock are eligible for future grant under such plan; (ii) 126,773 shares of Company Common Stock are subject to issuance pursuant to stock options granted and outstanding under the Company’s 1996 Stock Option Plan, and no options are eligible for future grant under such plan; (iii) 1,543,484 shares of Company Common Stock are subject to issuance pursuant to stock options granted and outstanding under the Company’s NSO Stock Option Program, and no options are eligible for future grant under such program; (iv) 16,025 shares of Company Common Stock are subject to issuance pursuant to stock options granted and outstanding under the Premia Corporation 1998 Stock Option Plan, and no options are eligible for future grant under such plan; and (v) 58,743 shares of Company Common Stock are subject to issuance pursuant to stock options granted and outstanding under the Technology Builders, Inc. Amended and Restated Stock Option and Stock Incentive Plan, and no options are eligible for future grant under such plan. As of the date of this Agreement, 383,691 shares of Company Common Stock are reserved for future issuance pursuant to Company Warrants. All convertible debentures issued by the Company have been validly converted into shares of Company Common Stock, and no convertible debentures issued by the Company are currently outstanding and no Person has any rights, interests or claims with respect to any such convertible debentures. Options to purchase shares of Company Common Stock (Stock options whether granted by the Company pursuant to the Company's ’s stock option plans plans, assumed by the Company in connection with any merger, acquisition or similar transaction or otherwise issued or granted) are referred to in this Agreement as "“Company Options.") ” Part 2.3(b)(i3.3(b) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998the date of this Agreement: (i) the particular plan or program (if any) pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule schedule, and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all Company Warrants and all stock option plans pursuant to under which the Company has any obligations or which have been assumed by the Company in connection with the acquisition of any of its Subsidiaries pursuant to which any of the Acquired Corporations has ever granted stock options options, and the form forms of all the stock option agreements agreements, grants or awards evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the The name of the warrant holder; (ii) the , number of shares of Company Common Stock subject issuable pursuant to such Company Warrant; (iii) and the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as each of the date Company Warrants is set forth on Part 3.3(b) of this Agreement; the Company Disclosure Schedule, provided, however, that the information set forth on Part 3.3(b) of the Company Disclosure Schedule does not reflect any assignment or transfer of any Company Warrants made without prior notice to the Company and (vii) the date on which such Company Warrant expires. The Company has delivered with respect to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company does not have Knowledge. None of the Company Warrants has ever grantedan exercise price less than or equal to the Per Share Amount and, except as set forth in Part 3.3(b) of the Company Disclosure Schedule, none of the Company Options has an exercise price less than or equal to the Per Share Amount.
(c) With respect to the representations made in this Section 3.3 and the corresponding Parts of the Company Disclosure Schedule, in each case, the number of shares outstanding or authorized, and the number of shares issuable under and exercise prices of each Company Option and Company Warrant has been adjusted to take into account the 1 for 10 reverse split (the “Reverse Split”) of the Company Common Stock which occurred on July 31, 2002.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(dPart 3.3(b) of the Company Disclosure Schedule Schedule, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; (iii) shareholder stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which any of the Company Acquired Corporations is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of any of the CompanyAcquired Corporations.
(e) All Except as set forth in Part 3.3(e) of the Company Disclosure Schedule, all outstanding shares of Company Common Stock, all outstanding Company Optionsoptions, all outstanding Company Warrants warrants and all outstanding shares of capital stock of each Subsidiary other securities of the Company Acquired Corporations have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts. Except as set forth in Part 3.3(e) of the Company Disclosure Schedule, all Company Options have been granted using the standard form of option agreement under their respective stock option plan or the standard form of agreement under the Stock Option Program.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are Company’s Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof, and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 3 contracts
Sources: Merger Agreement (Borland Software Corp), Merger Agreement (Starbase Corp), Merger Agreement (Borland Software Corp)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) of 30,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued Stock and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) 5,000,000 shares of preferred stock, $1.00 .01 par value per sharevalue, of which no 30,000 shares are outstanding as of the date of this Agreement. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessabledesignated as Series A Junior Participating Preferred Stock ("Preferred Stock"). As of the date of this Agreementhereof, there are 1,151,109 (a) 7,818,087 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive rightare outstanding, right of participation, right of maintenance 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) there is no Acquired Corporation 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As 30,000 shares of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Preferred Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. Preferred Stock Purchase Rights (Stock options granted by the Company "Rights") issued pursuant to the Company's Rights Agreement and no other shares of Preferred Stock are issued and outstanding, (c) 0 shares of Common Stock are held by the Company in its treasury, and (d) no shares of capital stock option plans of the Company are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) held by the Company's Subsidiaries. Section 4.4 of the Company Disclosure Schedule Letter sets forth the following information with respect to each Company Option outstanding a complete and accurate list, as of August 31the date hereof, 1998: of (i) the particular plan pursuant to which such Company Option was granted; number of outstanding Options and Warrants, (ii) the name number of shares of Common Stock which can be acquired upon the optionee; exercise of all outstanding Options and Warrants, respectively, (iii) the number of shares of Company Common Stock subject to such Company Option; which are reserved for issuance upon the exercise of outstanding Options and the number of shares which are reserved for future grants under the Stock Option Plans, (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; which are reserved for issuance upon the exercise of outstanding Warrants, and (iiiv) the exercise price of such Company each outstanding Option and Warrant; , and (ivvi) the date on number of shares of Common Stock which such Company Warrant was granted; (v) are reserved for issuance pursuant to the applicable vesting schedule Purchase Plan. Except for the Common Stock, the Rights, the Options, the Warrants, and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreementsPurchase Rights, certificates and other documents evidencing all warrants which the Company has ever granted.
no outstanding bonds, debentures, notes or other obligations entitling the holders thereof to vote (dor which are convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter. Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) Section 4.4 of the Company Disclosure Schedule there is no: Letter, since March 31, 1999, the Company (i) outstanding subscription, option, call, warrant or right (whether or has not currently exercisable) to acquire issued any shares of Common Stock other than upon the exercise of Options and Warrants or pursuant to the Purchase Plan, (ii) has granted no Options to purchase shares of Common Stock under the Stock Option Plans, (iii) has not amended the Purchase Plan, and (iv) has not split, combined or reclassified any of its shares of capital stock. All issued and outstanding shares of Common Stock are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights. Except as set forth above in this Section 4.4 or in Section 4.4 of the Company Disclosure Letter, there are no other shares of capital stock or other voting securities of the Company; (ii) outstanding security, instrument and no existing options, warrants, calls, subscriptions, convertible securities, and no stock appreciation rights or obligation that is or may become convertible into or exchangeable for any shares of the capital limited stock appreciation rights or other securities rights (including rights of the Company; (iii) shareholder rights plan (first refusal), agreements or similar plan commonly referred to as a "poison pill") or Contract under commitments which obligate the Company is or may become obligated to sell or otherwise issue any shares of its capital stock Subsidiaries to issue, transfer or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive sell any shares of capital stock of, or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.equity interests in,
Appears in 2 contracts
Sources: Merger Agreement (M Acquisition Corp), Merger Agreement (Marcam Solutions Inc)
Capitalization, Etc. (a) The authorized share capital stock of the Company consists of: (i) twenty-five million (25,000,000) shares of is NIS 2,000,000 divided into 200,000,000 Company Common Stock, $.005 par value per shareShares, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) 21,312,857 Company Shares have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of the date of this Agreement. All of the outstanding shares of Company Common Stock Shares have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there There are 1,151,109 shares of no Company Common Stock Shares held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None Companies. No holder of the outstanding shares of any Company Common Stock Shares, is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar rightright to purchase Company Shares from the Company; (ii) none of the outstanding shares Company Shares, and no holder of Company Common Stock Shares, is subject to any right of first refusal in favor of any of the CompanyAcquired Companies; and (iii) there is no Acquired Corporation Company Contract to which the Company is a party, or, to the Knowledge of the Company, any other Acquired Company Contract, relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such ContractShares. None of the Acquired Corporations Companies is under any obligation obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Company Common StockShares.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this AgreementAgreement (i) of 5,602,866 Company Common Stock Shares are subject to reserved for issuance pursuant to outstanding options to purchase Company Common Stock. Shares and outstanding Company RSUs, and (Stock options granted by the ii) 281,157 Company Shares are reserved for future issuance pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Share Plans. Part 2.3(b)(i3.3(b) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option Compensatory Award outstanding as of August 31, 1998: the date of this Agreement (i) the particular plan Company Share Plan pursuant to which such Company Option Compensatory Award was granted; , (ii) the name of the optionee; , (iii) the type of Company Compensatory Award, (iv) the number of shares of Company Common Stock Shares subject to such Company Option; Compensatory Award, (ivv) the any applicable exercise price or purchase price of such Company Option; Compensatory Award, (vvi) the date on which such Company Option Compensatory was granted; , (vivii) the applicable vesting schedule (including details as to the circumstances in which vesting will be accelerated), and the extent to which such Company Option Compensatory Award is vested and and, if applicable, exercisable as of the date of this Agreement; , (viii) whether such Company Compensatory Award was granted with terms that would allow it to qualify for any special Tax treatment, and (viiix) the date on which such Company Option Compensatory Award expires. The Company has delivered made available to Parent accurate and complete copies of all stock the Company Share Plans and any other option plans or other incentive plans pursuant to which the there are outstanding Company has ever granted stock options Compensatory Awards, and the form forms of all stock option and other equity award agreements evidencing such optionsoutstanding Company Compensatory Awards. There are no commitments or agreements The Company Share Plans and each other option plan and other incentive plan of any character to which the Company is bound obligating are qualified under Section 102 of the Israeli Tax Ordinance, and all actions necessary to maintain the qualification of the Company to accelerate Share Plans and each such other option plan or other incentive plan under Section 102 of the vesting of any Company OptionIsraeli Tax Ordinance have been taken.
(c) As The Company owns, beneficially and of record, all of the date issued and outstanding shares or other equity interests of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) each of its Subsidiaries. All of the outstanding shares of Company Common Stock the Company’s Subsidiaries have been duly authorized and are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of validly issued, are fully paid and nonassessable and are owned by the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as free and clear of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date any Encumbrances, except for restrictions on which such Company Warrant was granted; (v) the transfers arising under applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever grantedsecurities laws.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there There is no: no (i) outstanding subscription, option, call, warrant or right (right, in each case whether or not currently exercisable) , to acquire from an Acquired Company any shares of the capital stock or other securities of the such Acquired Company; , (ii) outstanding security, instrument or obligation of an Acquired Company that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the any Acquired Company; , or (iii) shareholder stockholder rights plan (or similar plan commonly referred to as a "“poison pill") ,” or Contract under which the any Acquired Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; . No holder of any debt security or (iv) condition indebtedness of any of the Acquired Companies, and no other creditor of any of the Acquired Companies, has or circumstance that may give rise to acquire any general voting rights or provide a basis for the assertion of a claim by any Person other voting rights, approval rights or similar rights with respect to the effect that such Person is entitled Merger or with respect to acquire the election of directors or receive the business affairs of any shares of capital stock or other securities of the CompanyAcquired Companies.
(e) All outstanding shares of Company Common StockShares, all outstanding Company Options, all outstanding Company Warrants Compensatory Awards and all outstanding shares of capital stock securities of each Subsidiary of the Company have been issued and granted in material compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 2 contracts
Sources: Merger Agreement (Voltaire Ltd.), Merger Agreement (Mellanox Technologies, Ltd.)
Capitalization, Etc. (a) The authorized capital stock Share Capital of the Company consists of: of 100,000,000 shares of stock, consisting of (iA) twenty-five million (25,000,000) 93,652,473 shares of Company Common Stock, $.005 par value per shareOrdinary Shares, of which, as of August 31, 1998, 8,076,404 which 2,305,290 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of the date of this Agreement, plus an indeterminate number of up to 2,000,000 Ordinary Shares being issued to investors in connection with the SPAs, and (B) 6,347,527 shares of Series A Preferred Shares, of which 759,086 shares have been issued and are outstanding as of the date of this Agreement (all shares prescribed under subsections (A) and (B) which are issued and/or otherwise issuable on the Closing pursuant to the transactions contemplated herein, shall be together referred to as the “Company Share Capital”). The Company does not hold any shares of its share capital in its treasury. All of the outstanding shares of Company Common Stock Share Capital that have been actually issued (or upon their issuance in connection with the transactions contemplated herein and subject to the terms and conditions prescribed herein and therein), have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this AgreementThe Company is not under any obligation, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury nor is bound by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (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) there is no Acquired Corporation 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common StockShare Capital. Notwithstanding the above, the Company's Preferred Shares will be converted into Company Ordinary Shares in connection with the Closing on a 1:1 basis, and that an additional 1,397,068 Company Ordinary Shares will be issued at Closing to holders of convertible notes issued by the Company.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) 538,573 shares of Company Common Stock Ordinary Shares are subject to issuance pursuant to outstanding warrants Company Options. All outstanding Company Options were granted pursuant to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) the terms of the Company Disclosure Schedule sets forth Option Plan. The Company Option Plan is binding upon and enforceable by the following information with respect Company against all holders of Company Options, subject to each Company Warrant outstanding as of the date of this Agreement: (i) the name laws of the warrant holder; (ii) the number of shares of Company Common Stock subject general application relating to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule bankruptcy, insolvency, reorganization, moratorium and the extent to which such Company Warrant is vested and exercisable as enforcement of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (iii) shareholder creditors’ rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirementsgenerally, and (ii) all requirements set forth rules of law governing specific performance, injunctive relief and other equitable remedies. In addition, there will an indeterminate number of up to 2,000,000 Company Ordinary Shares subject to issuance pursuant to warrants being issued to investors in applicable Contracts.
(f) All connection with the Closing within the scope of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the SPAs (“Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any EncumbrancesWarrants”).
Appears in 2 contracts
Sources: Merger Agreement (AIT Therapeutics, Inc.), Merger Agreement (AIT Therapeutics, Inc.)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 600,000 shares of Company Common Stock, $.005 par value per shareof which 266,227 shares have been issued and are outstanding; (ii) 30,600 shares of Company Series A Preferred Stock, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) 30,599 have been issued and are outstanding; and (iiiii) five hundred thousand (500,000) 100,000 shares of preferred stockCompany Series A-1 Preferred Stock, $1.00 par value per share, all of which no shares have been issued and are outstanding as of the date of this Agreementoutstanding. All of the outstanding shares of the Company Common Stock capital stock have been duly authorized and validly issued, issued and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None All of the outstanding shares of capital stock of the Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii) none and all of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor of the Company; and (iii) there is no Acquired Corporation Contract relating to the voting subscriptions, options, calls, warrants 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company have been issued in compliance with all applicable federal and state securities laws and other applicable Legal Requirements and all requirements set forth in the Company Documents and Company Contracts. No shares of capital stock of the Company are subject to a repurchase option in favor of the Company, and the Company has never repurchased, redeemed or otherwise reacquired any shares of the Company capital stock or other securities of the Company. Collectively, the Contributed Interests to be transferred by the Contributors to Pubco in connection with the Contribution represent 100% of the shares of outstanding capital stock of the Company.
(b) Except as set forth on Schedule 2.3(b) of the Company Disclosure Schedule, there are no: (i) outstanding subscriptions, options, calls, warrants or rights (whether or not currently exercisable) to acquire any shares of capital stock of the Company or other securities of the Company; (ii) outstanding securitysecurities, instrument notes, instruments or obligation obligations that is are or may become convertible into or exchangeable for any shares of the capital stock of the Company or other securities of the Company; (iii) shareholder rights plan (outstanding or authorized stock appreciation, phantom stock or similar plan commonly referred rights with respect to as a "poison pill"the capital stock of the Company; (iv) or Contract Contracts (other than this Agreement) under which the Company is or may become obligated to sell sell, transfer, exchange or otherwise issue any shares of its capital stock of the Company or any other securitiessecurities of the Company; (v) agreements, voting trusts, proxies or understandings with respect to the voting, or registration under the Securities Act, or any shares of the Company; or (ivvi) condition conditions or circumstance circumstances that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of the Company Securities or any shares of the capital stock or other securities of the Company.
(ec) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(iSchedule 2.3(c) of the Company Disclosure Schedule are validly issued, fully paid sets forth a complete and nonassessable accurate list of all of the stock option plans and are owned beneficially and other stock or equity-related plans of record by the Company, free and clear of any Encumbrances.
Appears in 2 contracts
Sources: Contribution Agreement (Tenby Pharma Inc), Contribution Agreement (Vogel Roger)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 17,500,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 5,726,813 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of the date of this Agreement; and (ii) 3,000,000 shares of Company Preferred Stock, of which no shares have been issued or are outstanding. The Company does not hold any shares of its capital stock in its treasury. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As Except as set forth in Part 3.3(a) of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
Disclosure Schedule: (iA) None none of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (iiB) none of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor of the Company; and (iiiC) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation of The Company is not under any obligation, nor is the Merger, (A) the shares of Parent Common Stock issued in exchange for Company bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common StockStock or other securities. The Company holds no repurchase right with respect to shares of Company Common Stock (including shares issued pursuant to the exercise of stock options).
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement: (i) 791,500 shares of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Options; and (ii) 261,417 shares of Company Common Stock. (Stock options are reserved for future issuance pursuant to equity awards not yet granted by under the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Equity Plans. Part 2.3(b)(i3.3(b) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998the date of this Agreement the following information: (iA) the particular plan (if any) pursuant to which such Company Option was granted; (iiB) the name of the optioneeholder of such Company Option; (iiiC) the number of shares of Company Common Stock subject to such Company Option; (ivD) the per-share exercise price (if any) of such Company Option; (vE) the date on which such Company Option was granted; (viF) the applicable vesting schedule schedule, and the extent to which such Company Option is vested and exercisable as of the date of this Agreementexercisable; and (viiG) the date on which such Company Option expires; and (H) whether such Company Option is an “incentive stock option” (as defined in the Code) or a non-qualified stock option. The Company has delivered Made Available to Parent accurate and complete copies of all stock option equity plans pursuant to which any outstanding Company Options were granted by the Company has ever granted stock options Company, and the form forms of all stock option agreements evidencing such optionsCompany Options. The exercise price of each Company Option is no less than the fair market value of a share of Company Common Stock as determined on the date of grant of such Company Option. All grants of Company Options were recorded on the Company’s financial statements (including, any related notes thereto) contained in the Company SEC Documents (as defined in Section 3.4(a)) in accordance with GAAP, and no such grants involved any “back dating,” “forward dating” or similar practices with respect to the effective date of grant (whether intentionally or otherwise). There are no commitments outstanding or agreements of any character authorized stock appreciation, phantom stock, profit participation or similar rights or equity-based awards with respect to which the Company is bound obligating other than as set forth in Part 3.3(b) of the Company to accelerate the vesting of any Company OptionDisclosure Schedule.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) 1,987,000 shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c3.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this AgreementAgreement the following information: (iA) the name of the warrant holderholder of such Company Warrant; (iiB) the number of shares of Company Common Stock subject to such Company Warrant; (iiiC) the per-share exercise price (if any) of such Company Warrant; (ivD) the date on which such Company Warrant was granted; (vE) the applicable vesting schedule schedule, if any, and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreementexercisable; and (viiF) the date on which such Company Warrant expires. The Company has delivered Made Available to Parent accurate and complete copies of all Company Warrants and all related agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c3.3(b) or 2.3(dand 3.3(c) of the Company Disclosure Schedule Schedule, there is nois: (i) as of the date of this Agreement, no outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company; (ii) as of the date of this Agreement, no outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; or (iii) shareholder no stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Company Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary other securities of the Company have been issued and granted in compliance with with: (i) all applicable securities laws and other applicable Legal Requirements, ; and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 2 contracts
Sources: Merger Agreement (Peets Coffee & Tea Inc), Merger Agreement (Diedrich Coffee Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share35,000,000 Shares, of which, as of August 31, 1998, 8,076,404 shares which 19,683,903 Shares (which amount does not materially differ from the amount including 714,289 Company Restricted Shares) were issued and outstanding as of the date close of this Agreement) have been issued and are outstandingbusiness on January 29, 2016; and (ii) five hundred thousand (500,000) 10,000,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no shares are were issued and outstanding as of the date close of this Agreementbusiness on January 29, 2016. All of the outstanding shares of Company Common Stock Shares have been duly authorized and validly issued, and are fully fully-paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(b) Except as set forth in the Company Charter Documents, (i) None none of the outstanding shares of Company Common Stock is Shares are entitled or subject to any preemptive right, antidilutive right, right of repurchase or forfeiture, right of participation, right of maintenance maintenance, conversion right, redemption right or any similar right; (ii) none of the outstanding shares of Company Common Stock is Shares are subject to any right of first refusal in favor of the Company; and (iii) there are no outstanding bonds, debentures, notes or other indebtedness of the Company or its Subsidiaries having a right to vote (or convertible into or exercisable for such securities having the right to vote) on any matters on which the shareholders of the Company have a right to vote; and (iv) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares Shares. Neither the Company nor any of Company Common Stock. Upon consummation of the Mergerits Subsidiaries is under any obligation, (A) the shares of Parent Common Stock issued in exchange for or is bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Shares or other Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Optionsecurities.
(c) As of January 29, 2016, the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) Company has no shares of Company Common Stock are capital stock reserved for issuance, except for 1,447,866 Shares subject to issuance pursuant to Company Options granted and outstanding warrants under the Company Equity Plans, 12,010 Shares subject to purchase issuance pursuant to Company Common RSUs granted and outstanding under the Company Equity Plans and an additional 57,164 Shares subject to issuance pursuant to Company Restricted Stock Awards with performance-based vesting. The Company has Made Available true and complete copies of all Company Equity Plans covering the Company Options, Company RSUs and Company Restricted Stock Awards outstanding as of the date hereof, and the forms of all award agreements evidencing such Company Options, Company RSUs and Company Restricted Stock Awards ("Company Warrants"and any other equity award agreements to the extent there are material variations from the form of agreement). Each Company Option, Company RSU and Company Restricted Stock Award was granted in compliance in all material respects with all Applicable Law and all of the terms and conditions of any Company Equity Plan pursuant to which it was issued. The exercise price of each Company Option is no less than the fair market value of a Share as determined on the date of grant of such Company Option. Part 2.3(c3.2(c) of the Company Disclosure Schedule sets forth the following information with respect to contains a correct and complete list of each outstanding Company Warrant outstanding Option, Company RSU and Company Restricted Stock Award as of January 29, 2016, including the holder’s name, date of this Agreement: grant, exercise or purchase price (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable if applicable), vesting schedule and the extent to which such Company Warrant is vested and exercisable as number of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever grantedShares subject thereto.
(d) Except as set forth in Parts 2.3(b)All of the outstanding capital stock or other voting securities of, 2.3(c) or 2.3(d) ownership interests in, each Subsidiary of the Company Disclosure Schedule there are duly authorized, validly issued, fully-paid and nonassessable and owned by the Company, free and clear of any material Encumbrance (except for Permitted Encumbrances). Neither the Company nor any of its Subsidiaries owns any voting interest in any Person except for the voting interests in the Company and its Subsidiaries.
(e) There is no: (i) outstanding subscription, option, call, warrant warrant, agreement, arrangement, commitment or other right (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, stock-based performance unit, shares of phantom stock, stock appreciation right, profit participation right or any other right that is linked to, or the value of which is in any way based on or derived from, the value of any shares of capital stock or other securities of any of the CompanyCompany and its Subsidiaries; (ii) outstanding security, instrument instrument, bond, debenture, note or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the CompanyCompany or its Subsidiaries; or (iii) shareholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which any of the Company or its Subsidiaries is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 2 contracts
Sources: Merger Agreement (CalAmp Corp.), Merger Agreement (Lojack Corp)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 100,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 0.001 par value per share, of which no 37,381,413 shares are outstanding as of the date of this Agreement; and (ii) 10,000,000 shares of Company Preferred Stock, of which 780,000 have been designated as Class A Redeemable Convertible Preferred Stock, $0.001 par value per share, of which no shares of Company Preferred Stock or Class A Redeemable Convertible Preferred Stock are outstanding. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As None of the date of this Agreement, there are 1,151,109 API Corporations (other than the Company) holds any shares of Company Common Stock held in treasury by the Company and no or any rights to acquire shares of stock held in treasury by any of the other Acquired CorporationsCompany Common Stock.
(b) Except as set forth in Part 2.5(b) of the Company Disclosure Schedule: (i) None none of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of repurchase or forfeiture (other than the Company Restricted Stock), right of participation, right of maintenance 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) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation None of the MergerAPI Corporations is under any obligation, (A) the shares of Parent Common Stock issued in exchange for or is bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common StockStock or other securities, except for the Company’s right to repurchase or reacquire shares of Company Restricted Stock held by an employee of the Company upon termination of such employee’s employment or upon any other forfeiture of a vesting condition.
(bc) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement: (i) 1,939,235 shares of Company Common Stock are subject to issuance pursuant to outstanding options Company Options; (ii) 43,280 shares of Company Restricted Stock are subject to purchase vesting after the date of this Agreement; and (iii) 266,095 shares of Company Common Stock. (Stock options are reserved for future issuance pursuant to equity awards not yet granted by under the Company pursuant Option Plans.
(d) The Company has delivered or Made Available to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule Parent a complete and accurate list that sets forth the following information with respect to each Company Option Equity Award outstanding as of August 31, 1998the date of this Agreement the following information: (i) the particular plan (if any) pursuant to which such Company Option Equity Award was granted; (ii) the name of the optioneeholder of such Company Equity Award; (iii) the type of Company Equity Award (whether a Company Option, Company Restricted Stock, or another type of Company Equity Award); (iv) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company OptionEquity Award; (v) the date on which per share exercise price (if any) of such Company Option was grantedEquity Award; (vi) the applicable vesting schedule schedule, and the extent to which such Company Option Equity Award is vested and exercisable as of the date of this Agreementexercisable, if applicable; and (vii) the date on which such Company Equity Award was granted; (viii) the date on which such Company Equity Award expires (if applicable); (ix) if such Company Equity Award is a Company Option, whether such Company Option expiresis an “incentive stock option” (as defined in the Code) or a non-qualified stock option; and (x) if such Company Equity Award is in the form of Company Restricted Stock, the dates on which shares of Company Common Stock with respect to such Company Restricted Stock, are scheduled to vest. The Company has delivered or Made Available to Parent accurate and complete copies of all stock option equity plans pursuant to which any outstanding Company Equity Awards were granted by the Company has ever granted stock options Company, and the form forms of all stock option agreements evidencing such optionsCompany Equity Awards. The exercise price of each Company Option is not less than the fair market value of a share of Company Common Stock as determined on the date of grant of such Company Option. All grants of Company Equity Awards were recorded on the Company’s financial statements (including any related notes thereto) contained in the Company SEC Documents in accordance with GAAP, and no such grants involved any “back dating” or similar practices with respect to the effective date of grant (whether intentional or otherwise). There are no commitments outstanding or agreements authorized stock appreciation, phantom stock, profit participation or similar rights or similar equity-based awards with respect to any of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company OptionAPI Corporations.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(de) Except as set forth in Parts 2.3(bSections 2.5(a), 2.3(c2.5(c) and 2.5(d), or 2.3(d) as permitted from and after the date of the Company Disclosure Schedule this Agreement pursuant to Section 4.2, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of any of the CompanyAPI Corporations; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the CompanyAPI Corporations or that has the right to vote on any matter on which the stockholders of the Company have the right to vote; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which any of the Company API Corporations is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may would reasonably be expected to give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of any of the CompanyAPI Corporations. All outstanding warrants or similar rights to acquire any shares of the capital stock or other securities of any of the API Corporation allow for assumption by Parent as set forth in Section 1.5(d) of this Agreement in accordance with their terms.
(ef) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary options and other Company Equity Awards and other securities of the Company API Corporations, have been issued and granted in compliance with in all material respects with: (i) all applicable securities laws and other applicable Legal Requirements, ; and (ii) all requirements set forth in applicable Contracts.
(fg) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are Company’s Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof, and are owned beneficially and of record by the Company, free and clear of any Encumbrances, other than restrictions under applicable securities laws.
Appears in 2 contracts
Sources: Merger Agreement (Advanced Photonix Inc), Merger Agreement (Luna Innovations Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 100,000,000 shares of Company Common Stockcommon stock, $.005 par value $0.0001 per share, of which, as of August 31, 1998, 8,076,404 which 3,000,000 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) 10,000,000 shares of blank check preferred stock, $1.00 par value $0.0001 per share, of which no shares none are outstanding as of the date of this Agreementissued and outstanding. All of the outstanding shares of Company Common Stock the Company’s capital stock have been duly authorized and validly issued, issued and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None All of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii) none the Company’s capital stock and all of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor of the Company; and (iii) there is no Acquired Corporation Contract relating to the voting subscriptions, options, calls, warrants 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the Company’s capital stock or other securities of the Company have been issued in compliance with all applicable federal and state securities laws and other applicable Legal Requirements and all requirements set forth in the Company Corporate Documents and Company Contracts. Except with respect to the proposed Repurchase, no shares of the Company capital stock are subject to a repurchase option in favor of the Company.
(b) There are no: (i) outstanding subscriptions, options, calls, warrants or rights (whether or not currently exercisable) to acquire any shares of the Company’s capital stock or other securities of the Company; (ii) outstanding securitysecurities, instrument notes, instruments or obligation obligations that is are or may become convertible into or exchangeable for any shares of the Company’s capital stock or other securities of the Company; (iii) shareholder rights plan (outstanding or authorized stock appreciation, phantom stock or similar plan commonly referred rights with respect to as a "poison pill"the capital stock of the Company; (iv) or Contract Contracts (other than the Transaction Documents and documents relating to the Private Placement) under which the Company is or may become obligated to sell sell, transfer, exchange or otherwise issue any shares of its the Company’s capital stock or any other securitiessecurities of the Company; (v) agreements, voting trusts, proxies or understandings with respect to the voting, or registration under the Securities Act, of any shares of the Company; or (ivvi) condition conditions or circumstance circumstances that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of the Company’s capital stock or other securities of the Company.
(ec) All outstanding shares of The Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital does not have any stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and option plans or other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contractsstock or equity related plans.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 2 contracts
Sources: Share Exchange Agreement (Amacore Group, Inc.), Share Exchange Agreement (Red Sun Mining, Inc.)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share200,000,000 Shares, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount 137,616,082 Shares had been issued and were outstanding as of the date close of this Agreement) have been issued and are outstandingbusiness on April 27, 2023 (the “Capitalization Date”); and (ii) five hundred thousand (500,000) 5,000,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no shares are outstanding as of the date of this Agreementoutstanding. All of the outstanding shares of the capital stock of the Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of In the date period between the Capitalization Date and the execution and delivery of this Agreement, there are 1,151,109 the Company has not issued any new Shares except pursuant to the exercise of the purchase rights under the Company ESPP, the vesting of Company RSUs outstanding as of the Capitalization Date in accordance with their terms or the exercise of Company Options outstanding as of the Capitalization Date in accordance with their terms and, since the Capitalization Date, the Company has not issued any Company Options or other equity based awards, in each case, other than pursuant to any offer of employment or Contract executed on or prior to the date of the Capitalization Date.
(b) All of the outstanding shares of Company Common Stock held in treasury by the Company and no shares of capital stock held in treasury by any or ordinary shares, as applicable, of the other Acquired CorporationsCompany’s Subsidiaries have been duly authorized and validly issued, and are fully paid and nonassessable.
(i) None of the outstanding shares of Company Common Stock is capital stock of the Acquired Corporations are entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock is capital stock of the Acquired Corporations are subject to any right of first refusal in favor of the Companyany Acquired Corporation; and (iii) there are no outstanding bonds, debentures, notes or other indebtedness of any Acquired Corporation having a right to vote on any matters on which the stockholders of the Acquired Corporations have a right to vote; and (iv) there is no Acquired Corporation Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation capital stock of the MergerAcquired Corporations. No Acquired Corporation is under any obligation, (A) the shares of Parent Common Stock issued in exchange for or bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of capital stock of the Acquired Corporations. The Shares constitute the only outstanding class of securities of the Company Common Stockregistered under the Securities Act. There are no voting trusts or other Contracts with respect to the voting of any Shares.
(bd) As of August 31, 1998, 957,725 shares the close of business on the Capitalization Date: (which amount does not materially differ from the amount i) 12,729,560 Shares were subject to options issuance pursuant to Company Options granted and outstanding under the Company Equity Plans, (ii) 2,497,540 Shares were subject to issuance pursuant to Company RSUs and 198,432 Shares were subject to issuance pursuant to Company PSUs (determined at the maximum level of performance) granted and outstanding under the Company Equity Plans, (iii) 4,561,362 Shares were reserved for future issuance under Company Equity Plans and (iv) 676,853 Shares were reserved for future issuance under the Company ESPP. Other than as set forth in this Section 2.3(d), there are no issued, reserved for issuance, outstanding or authorized stock option, stock appreciation, phantom stock, stock unit, restricted stock unit, stock-based performance unit, profit participation or similar rights or equity-based awards with respect to the Company.
(e) There are no issued, reserved for issuance, outstanding or authorized stock option, stock appreciation, phantom stock, stock unit, profit participation or similar rights or equity-based awards with respect to any Subsidiary of the Company.
(f) Except (y) as set forth in this Section 2.3 and (z) for Company Options, Company RSUs and Company PSUs outstanding as of the date of this Agreement) of Company Common Stock , there are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscriptionshares of capital stock of or other securities of any Acquired Corporation; (ii) outstanding subscriptions, optionoptions, callcalls, warrant warrants or right rights (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, stock-based performance unit or any other right that is linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock or other securities of the Companyany Acquired Corporation, in each case other than derivative securities not issued by an Acquired Corporation; (iiiii) outstanding securitysecurities, instrument instruments, bonds, debentures, notes or obligation obligations that is are or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Companyany Acquired Corporation; or (iiiiv) shareholder stockholder rights plan plans (or similar plan plans commonly referred to as a "“poison pill"”) or Contract Contracts under which the Company any Acquired Corporation is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(eg) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(iSection 2.3(g) of the Company Disclosure Schedule sets forth a listing of all Persons (either by name or employee identification number) who hold outstanding Company Options, Company RSUs and Company PSUs as of the close of business on the Capitalization Date, indicating, with respect to each Company Option, Company RSU and Company PSU, the number of Shares subject thereto, the date of grant, the vesting schedule, the per Share exercise price (if applicable), the expiration date and, with respect to Company Options, whether such Company Option is intended to be an incentive stock option (within the meaning of Section 422 of the Code). All Company Options, Company RSUs and Company PSUs are validly issuedevidenced by award agreements in the forms that have been provided to Parent.
(h) All outstanding Shares have been offered and issued in compliance in all material respects with all applicable securities Legal Requirements, fully paid including the Securities Act and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances“blue sky” Legal Requirements.
Appears in 2 contracts
Sources: Acquisition Agreement, Merger Agreement (IVERIC Bio, Inc.)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 345,000,000 shares of Company Common Stock, $.005 par value per shareof which 270,000,000 shares have been designated Company Class A Common Stock, of which, as of August 31, 1998, 8,076,404 which 47,168,505 shares (which amount does not materially differ from the amount are issued and outstanding as of the date close of this Agreement) business on the Measurement Date, and of which 75,000,000 shares have been designated Company Class B Common Stock, none of which are issued and are or outstanding; and (ii) five hundred thousand (500,000) 5,000,000 shares of preferred stockCompany Preferred Stock, $1.00 par value per share, none of which no shares are outstanding as of the date of this Agreementissued or outstanding. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock Shares is entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; , (ii) none of the outstanding shares of Company Common Stock Shares is subject to any right of first refusal in favor of the Company; and , (iii) there are no outstanding bonds, debentures, notes or other Indebtedness of any Acquired Company having a right to vote on any matters on which the stockholders of the Company have a right to vote and (iv) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation None of the MergerAcquired Companies is under any obligation, (A) the shares of Parent Common Stock issued in exchange for nor is there any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares Shares. The Shares constitute the only outstanding class of Company Common Stock.
(b) As securities of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as any of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by Acquired Companies registered under the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such optionsSecurities Act. There are no commitments or agreements Company Contracts or, to the knowledge of the Company, voting trusts with respect to the voting of any character to which Shares. All outstanding Shares have been offered and issued in compliance in all material respects with all applicable securities Laws, including the Company is bound obligating the Company to accelerate the vesting of any Company OptionSecurities Act and “blue sky” Laws.
(c) As of the date close of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three business on the Measurement Date: (679,723i) shares of Company Common Stock 5,242,287 Shares are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holderOptions; (ii) the number of shares of Company Common Stock 501,371 Shares are subject to such Company Warrantoutstanding RSUs (assuming applicable performance goals are satisfied at “target” levels); (iii) 8,500 Shares are estimated to be subject to outstanding purchase rights under the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.ESPP
Appears in 2 contracts
Sources: Merger Agreement (Sucampo Pharmaceuticals, Inc.), Merger Agreement (Mallinckrodt PLC)
Capitalization, Etc. (a) The authorized capital stock of the Company Meerkat consists of: of (i) twenty-five million (25,000,000) 255,000,000 shares of Company Meerkat Common Stock, $.005 par value $0.001 per share, of which, as of August 31, 1998, 8,076,404 which 20,856,693 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; outstanding as of May 15, 2017 (the “Capitalization Date”) and (ii) five hundred thousand (500,000) 5,000,000 shares of preferred stockPreferred Stock, $1.00 par value $0.001 per share, of which no shares have been issued and are outstanding as of the date Capitalization Date. Meerkat does not hold any shares of this Agreement. its capital stock in its treasury.
(b) All of the outstanding shares of Company Meerkat Common Stock have been duly authorized and validly issued, and are fully paid and nonassessablenonassessable and are free of any Encumbrances. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Meerkat Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii) none . None of the outstanding shares of Company Meerkat Common Stock is subject to any right of first refusal in favor of the Company; and (iii) Meerkat. Except as contemplated herein, there is no Acquired Corporation Meerkat 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 Meerkat Common Stock. Upon consummation of the MergerMeerkat is not under any obligation, (A) the shares of Parent Common Stock issued in exchange for nor is Meerkat bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Meerkat Common StockStock or other securities. Section 3.6(b) of the Meerkat Disclosure Schedule accurately and completely describes all repurchase rights held by Meerkat with respect to shares of Meerkat Common Stock (including shares issued pursuant to the exercise of stock options) and specifies which of those repurchase rights are currently exercisable.
(bc) As Except for the Meerkat 2008 Long Term Incentive Plan and the Meerkat 2015 Equity Incentive Award Plan (collectively, the “Meerkat Stock Plans”) and the Meerkat 2015 Employee Stock Purchase Plan (the “Meerkat ESPP”), and except as set forth on Section 3.6(c) of August 31the Meerkat Disclosure Schedule, 1998, 957,725 shares (which amount Meerkat does not materially differ from the amount subject to options outstanding as have any stock option plan or any other plan, program, agreement or arrangement providing for any equity-based compensation for any Person. As of the date of this Agreement) , Meerkat has reserved 3,623,867 shares of Company Meerkat Common Stock for issuance under the Meerkat Stock Plans, of which 130,675 shares have been issued and are subject to currently outstanding, 1,606,616 shares have been reserved for issuance upon exercise of Meerkat Options granted under the Meerkat Stock Plans, and 1,886,576 shares remain available for future issuance pursuant to outstanding options to purchase Company the Meerkat Stock Plans. As of the date of this Agreement, Meerkat has reserved 369,690 shares of Meerkat Common Stock. (Stock options granted by the Company for future issuance pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(iMeerkat ESPP. Section 3.6(c) of the Company Meerkat Disclosure Schedule sets forth the following information with respect to each Company Meerkat Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holderoptionee; (ii) the number of shares of Company Meerkat Common Stock subject to such Company WarrantMeerkat Option at the time of grant; (iii) the exercise price number of shares of Meerkat Common Stock subject to such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable Meerkat Option as of the date of this Agreement; (iv) the exercise price of such Meerkat Option; (v) the date on which such Meerkat Option was granted; (vi) the applicable vesting schedule, including the number of vested and unvested shares as of the date of this Agreement; (vii) the date on which such Meerkat Option expires; and (viii) whether such Meerkat Option is an “incentive stock option” (as defined in the Code) or a non-qualified stock option. Meerkat has made available to the Company Warrant expires. The Company has delivered to Parent accurate and complete copies of equity incentive plans pursuant to which Meerkat has equity-based awards, the forms of all agreementsaward agreements evidencing such equity-based awards and evidence of board and stockholder approval of the Meerkat Stock Plans and any amendments thereto. As of the date of this Agreement, certificates no employee or other service provider of Meerkat is participating in the ESPP, and other documents evidencing all warrants which there are no ongoing offering periods under the Company has ever grantedMeerkat ESPP.
(d) Except for the outstanding Meerkat Options or as set forth in Parts 2.3(b), 2.3(c) or 2.3(don Section 3.6(d) of the Company Meerkat Disclosure Schedule Schedule, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the CompanyMeerkat; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the CompanyMeerkat; (iii) shareholder stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which the Company Meerkat is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the CompanyMeerkat. There are no outstanding or authorized stock appreciation, phantom stock, profit participation or other similar rights with respect to Meerkat.
(e) All outstanding shares of Company Meerkat Common Stock, all outstanding Company Options, all outstanding Company Warrants Meerkat Options and all outstanding shares other securities of capital stock of each Subsidiary of the Company Meerkat have been issued and granted in material compliance with (i) all applicable securities laws and other applicable Legal RequirementsLaw, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 2 contracts
Sources: Merger Agreement (Synlogic, Inc.), Merger Agreement (Mirna Therapeutics, Inc.)
Capitalization, Etc. (a) The entire authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 250,000,000 shares of Company Common Stockcommon stock, $.005 0.001 par value per share; and (ii) 116,000,000 shares of preferred stock, $0.001 par value per share, of whichwhich 41,200,000 shares have been designated as Series A Preferred Stock and 74,382,633 shares have been designated as Series B Preferred Stock. There are, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement: (i) have been 72,557,485 shares of Company Common Stock issued and are outstanding; and (ii) five hundred thousand (500,000) 37,026,730 shares of preferred stock, $1.00 par value per share, Series A Preferred Stock issued and outstanding and; (iii) 74,382,633 shares of which no shares are outstanding as of the date of this AgreementSeries B Preferred Stock issued and outstanding. All of the outstanding shares of Company Common Capital Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 no shares of Company Common Capital Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
. As of the date of this Agreement, and except as set forth in Part 2.3(a) of the Acquired Corporation Disclosure Schedule: (i) None none of the outstanding shares of Company Common Capital Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Capital Stock is subject to any right of first refusal in favor of the Company; and (iii) there is no Acquired Corporation 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 Capital Stock. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation or bound by any contract pursuant to which it may become obligated to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Capital Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) , 5,527,850 shares of Company Common Stock are subject to reserved for future issuance pursuant to stock options granted and outstanding options to purchase under the Company's common stock option plans (the "Company Common Stock. Plans"), (Stock stock options granted by the Company pursuant to the Company's stock option plans Company Plans are referred to in this Agreement as "Company Options.") and 2,663 shares of Company Common Stock are reserved and available for future issuance pursuant to future grants of stock options. Part 2.3(b)(i2.3(b) of the Company Acquired Corporation Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998the date of this Agreement: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iiiii) the number of shares of Company Common Stock subject to such Company Option; (iviii) the exercise price of such Company Option; (viv) the date on which such Company Option was granted; (viv) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (viivi) the date on which such Company Option expires. The Company has delivered to Parent an accurate and complete copies copy of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company OptionPlans.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) 19,265,176 shares of Company Common Stock are subject to reserved for future issuance pursuant to outstanding warrants to purchase Company Common Stock (the "Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent an accurate and complete copies copy of the forms of all agreements, certificates and other documents evidencing all warrants which the Company has ever grantedsuch warrants.
(d) Except as set forth in Parts 2.3(bPart 2.3(a), Part 2.3(b) and Part 2.3(c) or 2.3(d) of the Company Acquired Corporation Disclosure Schedule Schedule, as of the date of this Agreement there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) granted by the Company to acquire any shares of the capital stock Company Capital Stock or other securities of the Company; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock Company Capital Stock or other securities of the Company; (iii) shareholder stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock (iv) Company Capital Stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock Company Capital Stock or other securities of the Company.
(e) All outstanding shares of Company Common Capital Stock, all outstanding Company Options, all outstanding warrants to purchase Company Warrants Common Stock and all outstanding shares of capital stock of each Subsidiary subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, Requirements and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 2 contracts
Sources: Merger Agreement (Abb Asea Brown Boveri LTD), Merger Agreement (Paradigm Technology Inc /De/)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share100,000,000 Shares, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount 70,136,696 Shares had been issued and were outstanding as of the date close of this Agreement) have been issued and are outstandingbusiness on October 6, 2023 (the “Reference Date”); and (ii) five hundred thousand (500,000) 10,000,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no shares are outstanding as of the date close of this Agreementbusiness on the Reference Date. All of the outstanding shares of the capital stock of the Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of Since the Reference Date through the date of this Agreement, there are 1,151,109 the Company has not issued any new Shares or other Company Securities except pursuant to the exercise of the purchase rights under the Company ESPP, the vesting of Company RSUs outstanding as of the Reference Date in accordance with their terms or the exercise of Company Options or Company Warrants outstanding as of the Reference Date in accordance with their terms and, since the Reference Date, the Company has not issued any Company Options, Company Warrants or other equity based awards, in each case, other than pursuant to any offer of employment or Contract executed on or prior to the date of the Reference Date.
(b) All of the outstanding shares of Company Common Stock held in treasury by the Company and no capital stock or ordinary shares of stock held in treasury by any of the other Acquired CorporationsCompany’s Subsidiaries have been duly authorized and validly issued, and are fully paid and nonassessable.
(i) None of the outstanding shares of Company Common Stock is capital stock of the Acquired Corporations are entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock is capital stock of the Acquired Corporations are subject to any right of first refusal in favor of the Companyany Acquired Corporation; and (iii) there are no outstanding bonds, debentures, notes or other indebtedness of any Acquired Corporation having a right to vote on any matters on which the stockholders of the Acquired Corporations have a right to vote; and (iv) there is no Acquired Corporation Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation capital stock of the MergerAcquired Corporations. No Acquired Corporation is under any obligation, (A) the shares of Parent Common Stock issued in exchange for or bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of capital stock of the Acquired Corporations. The Shares constitute the only outstanding class of securities of the Company Common Stockregistered under the Securities Act. There are no voting trusts or other Contracts with respect to the voting of any Shares.
(bd) As of August 31the close of business on the Reference Date: (i) 6,124,337 Shares were subject to issuance pursuant to Company Options granted and outstanding under the Company Equity Plans, 1998such outstanding Company Options having a weighted average exercise price of $79.15 per Share as of the Reference Date, 957,725 shares (ii) 2,941,121 Shares were subject to issuance pursuant to Company RSUs granted and outstanding under the Company Equity Plans (with Company RSUs that vest based upon attainment of performance conditions measured at the maximum level of performance), (iii) 3,040,147 Shares were reserved for future issuance under Company Equity Plans, (iv) 692,680 Shares were reserved for future issuance under the Company ESPP, (v) 110,000 Shares are estimated to be subject to outstanding purchase rights under the Company ESPP (assuming that the closing price per Share as reported on the purchase date for the current offering period was equal to $31.46 and employee contributions continue until such purchase date (which amount does not materially differ from is assumed for this purpose to occur on November 23, 2023) at the amount levels in place as of the Reference Date) and (vi) 8,727,547 Shares were subject to options issuance upon exercise of the Company Warrants, such Company Warrants having a weighted average exercise price of $0.001 as of such date. Other than as set forth in Section 2.3(d) of the Company Disclosure Schedule, there are no issued, reserved for issuance, outstanding or authorized stock option, stock appreciation, phantom stock, stock unit, restricted stock unit, stock-based performance unit, profit participation or similar rights or equity-based awards with respect to the Company.
(e) The Company has delivered or made available to Parent or Parent’s Representatives copies of all Company Equity Plans covering the Company Options and Company RSUs outstanding as of the date of this Agreement) Agreement and the forms of all stock option agreements evidencing such Company Common Stock Options and forms of stock unit agreements evidencing such Company RSUs. There are subject no issued, reserved for issuance, outstanding or authorized stock option, stock appreciation, phantom stock, stock unit, profit participation or similar rights or equity-based awards with respect to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to any Subsidiary of the Company's stock option plans are referred to in this Agreement as "Company Options."
(f) Part 2.3(b)(i(i) Section 2.3(f) of the Company Disclosure Schedule sets forth forth, as of the following information Reference Date, a true and complete list of all Company Options, Company Warrants and Company RSUs, including: with respect to each all such Company Option outstanding as of August 31Options, 1998: Company Warrants and Company RSUs, (iA) the particular plan pursuant to which holder’s name or employee identification number, (B) the date such Company Option was Options, Company Warrants and Company RSUs were granted; , (iiC) the name type of the optionee; Company Options, Company Warrants and Company RSUs, (iiiD) the number of shares of Company Common Stock subject to such Company Option; Options (ivissuable upon exercise), Company Warrants (issuable upon exercise) and Company RSUs (assuming the maximum number of shares in the case of performance-based Company RSUs), (E) the exercise price of such and expiration date for Company Option; Options and Company Warrants, (vF) the date on which such Company Option was granted; (vi) the applicable vesting schedule and (G) the extent to Company Equity Plans under which such the applicable Company Option is vested Options and exercisable as Company RSUs were granted, and (ii) for the Company ESPP, the maximum number of Shares issuable at the end of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Optioncurrent purchase period.
(cg) As (i) All Company Options and Company RSUs have been validly and properly approved by the Board of Directors (or a duly authorized committee or subcommittee thereof) and granted in compliance with all applicable Legal Requirements and the terms of the date of this Agreementapplicable Company Equity Plans and (ii) all Company Options, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock Warrants and Company RSUs are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) recorded on the consolidated financial statements of the Company Disclosure Schedule sets in accordance with GAAP.
(h) Except (y) as set forth the following information with respect to each in this Section 2.3 and (z) for Company Warrant Options, Company RSUs and Company Warrants outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule Agreement and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which purchase rights under the Company has ever granted.
(d) Except as set forth in Parts 2.3(b)ESPP, 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is are no: (i) outstanding subscriptionshares of capital stock of or other securities of any Acquired Corporation; (ii) outstanding subscriptions, optionoptions, callcalls, warrant warrants, equity or right equity-based compensation awards, phantom stocks, stock appreciations, profit participations, or other equity or equity based interests or rights (whether or not currently exercisable) to acquire acquire, or the value of which is measured by reference to, any shares of the capital stock, restricted stock unit, stock-based performance unit or any other right that is linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock or other securities of the Companyany Acquired Corporation; (iiiii) outstanding securitysecurities, instrument instruments, bonds, debentures, notes or obligation obligations that is are or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Companyany Acquired Corporation; or (iiiiv) shareholder stockholder rights plan plans (or similar plan plans commonly referred to as a "“poison pill"”) or Contract Contracts under which the Company any Acquired Corporation is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or securities (clauses (i) through (iv), collectively, “Company Securities”).
(i) condition or circumstance that may give rise to or provide a basis for No Shares of the assertion of a claim Company are owned by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities Subsidiary of the Company.
(ej) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company Shares have been offered and issued and granted in compliance in all material respects with (i) all applicable securities laws and other applicable Legal Requirements, including the Securities Act and (ii) all requirements set forth in applicable Contracts“blue sky” Legal Requirements.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 2 contracts
Sources: Merger Agreement (Mirati Therapeutics, Inc.), Merger Agreement (Mirati Therapeutics, Inc.)
Capitalization, Etc. (a) The As of the close of business on July 12, 2018, the authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 25,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 7,500,275 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) 5,000,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no shares have been issued or are outstanding as outstanding. The Company holds 1,740 shares of its capital stock in its treasury, and none of the Company Entities (other than the Company) holds any shares of Company Common Stock or any rights to acquire shares of Company Common Stock. From the close of business on July 12, 2018 to the date of this Agreement, there have been no issuances by the Company of shares of capital stock or voting securities of, or other equity interests in, the Company, other than the issuance of Company Common Stock: (A) upon the exercise of Company Warrants; or (B) upon the vesting or settlement of Company RSUs, in each case, that were outstanding at the close of business on July 12, 2018 and in accordance with their terms in effect at such time. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As .
(b) Part 2.3(b) of the Company Disclosure Schedule sets forth, as applicable, as of the date of this AgreementAgreement (i) the number of outstanding Company Warrants, there are 1,151,109 the number of shares of Company Common Stock held in treasury by subject thereto and the expiration date thereof, and (ii) the number of outstanding Company and no RSUs, the number of shares of stock held in treasury by any of Company Common Stock subject thereto or issuable upon settlement thereunder, the other Acquired Corporationsgrant dates and vesting schedule.
(ic) None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance repurchase or forfeiture or any similar right; (ii) none . None of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor of the Company; and (iii) there . There is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common StockStock or any securities of any Significant Subsidiary of any Company Entity. Upon consummation None of the MergerCompany Entities is under any obligation, (A) the shares of Parent Common Stock issued in exchange for or is bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock or other securities.
(d) As of the close of business on July 12, 2018, no shares of Company Common Stock constitute Company Restricted Stock.
(be) As Except as set forth in Section 2.3(a), Section 2.3(b), Section 2.3(d) or in Part 2.3(b) or 2.3(e) of August 31the Company Disclosure Schedule, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) granted or issued by any Company Entity to acquire any shares of the capital stock or other securities of any of the CompanyCompany Entities; (ii) outstanding security, instrument or obligation of a Company Entity that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the CompanyCompany Entities; (iii) shareholder outstanding or authorized stock appreciation rights, phantom stock, profit participation or similar rights or equity-based awards issued in each case by a Company Entity with respect to any of the Company Entities; or (iv) stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which any of the Company Entities is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(ef) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary other securities of the Company Entities (including under the Company Equity Plan), have been issued and granted in compliance with in all material respects with: (i) all applicable securities laws and other applicable Legal Requirements, ; and (ii) all requirements set forth in applicable Contracts, except where the failure to be so issued and granted, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Company Material Adverse Effect. As of July 12, 2018, 759,884 shares of Company Common Stock are reserved for future issuance pursuant to equity awards not yet granted under the Company Equity Plan.
(fg) All of the outstanding shares of capital stock of or other equity securities of, or other ownership interests in, each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are Company’s Subsidiaries have been duly authorized and validly issued, are fully paid and, in the case of corporate Subsidiaries, nonassessable, and nonassessable such shares, securities or interests are free of preemptive rights and are owned beneficially and of record by the CompanyCompany (other than: (i) as expressly set forth in Part 2.3(g) of the Company Disclosure Schedule; and (ii) with respect to those Subsidiaries of the Company organized under the laws of foreign jurisdictions where shares of capital stock or other equity securities or ownership interests are required under applicable Legal Requirements to be held by one or more directors, employees or agents of such Subsidiary, in each case as disclosed in Part 2.3(g) of the Company Disclosure Schedule), free and clear of any EncumbrancesEncumbrances (other than restrictions on transfer imposed by applicable securities laws).
Appears in 2 contracts
Sources: Merger Agreement (Gulfmark Offshore Inc), Merger Agreement (Tidewater Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) of 30,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value 0.0001 per share, of which no 10,000,000 shares have been issued and are outstanding as of the date of this Agreement. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessablenon-assessable. As Part 2.3(a) of the date Disclosure Schedule provides an accurate and complete description of this Agreement, there are 1,151,109 the terms of each repurchase option which is held by the Company and to which any of such shares is subject.
(b) The Company has reserved 20,000,000 shares of Company Common Stock held in treasury by for issuance under the Company and no Equity Incentive Plan, of which options to purchase 11,180,000 shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (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) there is no Acquired Corporation 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i2.3(a) of the Company Disclosure Schedule accurately sets forth the following information forth, with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option that is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holderholder of such Company Option; (ii) the total number of shares of Company Common Stock that are subject to such Company Option and the number of shares of Company Common Stock subject with respect to which such Company WarrantOption is immediately exercisable; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant Option was grantedgranted and the term of such Company Option; (iv) the vesting schedule for such Company Option; (v) the applicable vesting schedule and the extent to which exercise price per share of Company Common Stock purchasable under such Company Warrant is vested and exercisable Option; (vi) whether such Company Option has been designated an “incentive stock option” as defined in Section 422 of the date of this AgreementCode; and (vii) whether the date on which exercisability of or right to repurchase of such Company Warrant expiresOption will be accelerated in any way by the transactions contemplated by this Agreement. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) Part 2.3 of the Company Disclosure Schedule Schedule, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) to the Knowledge of the Company, condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(ec) All outstanding shares of Company Common Stock, Stock and all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company Options have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(fd) All Except as set forth in Part 2.3(d) of the outstanding Disclosure Schedule, the Company has never repurchased, redeemed or otherwise reacquired any shares of capital stock of each or other securities of the Entities identified Company. All securities so reacquired by the Company were reacquired in Part 2.1(a)(icompliance with (i) the applicable provisions of the Company Disclosure Schedule are validly issuedDGCL and all other applicable Legal Requirements, fully paid and nonassessable (ii) all requirements set forth in applicable restricted stock purchase agreements and are owned beneficially and of record by the Company, free and clear of any Encumbrancesother applicable Contracts.
Appears in 2 contracts
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 500,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 52,102,241 shares (which amount does not materially differ from the amount were issued and outstanding as of the date close of this Agreement) have been issued and are outstandingbusiness on October 26, 2020 (the “Inphi Listing Date”); and (ii) five hundred thousand (500,000) 10,000,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no shares are were issued or outstanding as of the date close of this Agreementbusiness on the Inphi Listing Date. The Company does not hold any shares of its capital stock in its treasury. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there There are 1,151,109 no shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (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) there Inphi Entities. There is no Acquired Corporation Inphi Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation None of the MergerInphi Entities is under any obligation under, (A) the shares of Parent Common Stock issued in exchange for or is bound by, any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common StockStock or other securities.
(b) As of August 31, 1998, 957,725 the close of business on the Inphi Listing Date: (i) 697,717 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to Company Options granted and outstanding options to purchase under the Company Equity Plans; (ii) 700,869 shares of Company Common Stock. (Stock options granted by the Company are reserved for future issuance pursuant to the Company's ’s Amended and Restated Employee Stock Purchase Plan (the “Company ESPP”); (iii) (A) 3,749,548 shares of Company Common Stock are subject to issuance and/or delivery pursuant to Company RSUs, (B) up to a maximum of 46,393 shares of Company Common Stock (34,338 shares of Company Common Stock assuming target performance) are subject to issuance and/or delivery pursuant to Company PSUs and (C) up to a maximum of 1,065,626 shares of Company Common Stock (478,840 shares of Company Common Stock assuming target performance) are subject to issuance and/or delivery pursuant to Company MSUs; (iv) no shares of Company Restricted Stock are outstanding; (v) no shares of Company Common Stock are subject to stock option plans appreciation rights, whether granted under the Company Equity Plans or otherwise; (vi) no Company Equity Awards are referred outstanding other than those granted under the Company Equity Plans; and (vii) 5,694,936 shares of Company Common Stock are reserved for future issuance pursuant to in this Agreement as "Company Options.") Equity Awards not yet granted under the Company Equity Plans. Part 2.3(b)(i2.3(b) of the Company Disclosure Schedule accurately sets forth the following information with respect to each Company Option Equity Award outstanding as of August 31, 1998the close of business on the Inphi Listing Date: (i1) the particular plan Company Equity Plan (if any) pursuant to which such Company Option Equity Award was granted; (ii2) the name employee identification number of the optioneeholder of such Company Equity Award; (iii3) the number of shares of Company Common Stock subject to such Company OptionEquity Award (including, for Company Equity Awards subject to performance-based vesting requirements, both the target and the maximum number of shares of Company Common Stock); (iv4) the exercise price (if any) of such Company OptionEquity Award; (v5) the date on which such Company Option Equity Award was granted; (vi6) the applicable vesting schedule schedule, and the extent to which such Company Option Equity Award is vested and exercisable as of the date of this Agreementand/or exercisable; and (vii7) the date on which such Company Equity Award expires; (8) if such Company Equity Award is a Company Option, whether it is an “incentive stock option” (as defined in the Code) or a non-qualified stock option; (9) if such Company Equity Award is a Company RSU, whether such Company RSU is subject to Section 409A of the Code and the regulations and guidance thereunder (“Section 409A”); (10) if such Company Equity Award is a Company RSU, the dates on which shares of Company Common Stock are scheduled to be delivered, if different from the applicable vesting schedule; and (11) whether the vesting of such Company Equity Award would be accelerated, in whole or in part, as a result of the Delaware Merger or any of the other Contemplated Transactions, alone or in combination with any termination of employment or other event. The exercise price of each Company Option expiresis no less than the fair market value of a share of Company Common Stock as determined on the date of grant of such Company Option. All grants of Company Equity Awards were recorded on the Company’s financial statements (including any related notes thereto) contained in the Company SEC Reports in accordance with GAAP, and no such grants involved any “back dating,” “forward dating” or similar practices with respect to the effective date of grant (whether intentionally or otherwise). From the close of business on the Inphi Listing Date until the date of this Agreement, no shares of Company Common Stock or Company Preferred Stock have been issued, except for shares of Company Common Stock issued pursuant to the exercise of Company Options or the vesting of Company RSUs, Company PSUs or Company MSUs, in each case, outstanding on the Inphi Listing Date and in accordance with their terms.
(c) The Company has delivered Made Available to Parent Marvell accurate and complete copies of all stock option equity-based plans or, if not granted under an equity plan, such other Contract, pursuant to which the any stock options, stock appreciation rights, restricted stock units, deferred stock units or restricted stock awards (including all outstanding Company has ever granted stock options Equity Awards, whether payable in equity, cash or otherwise) are currently outstanding, and the form forms of all stock option option, stock appreciation right, restricted stock unit, deferred stock unit and restricted stock award agreements evidencing such stock options. There are no commitments , stock appreciation rights, restricted stock units, deferred stock units or agreements of any character to which the restricted stock awards (including all outstanding Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this AgreementEquity Awards, six hundred seventy-nine thousandwhether payable in equity, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"cash or otherwise). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except (w) as set forth in Parts Part 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule Schedule, (x) for the Convertible Notes and the Capped Call Confirmations, (y) for shares of Company Common Stock issued following the Inphi Listing Date pursuant to the exercise of Company Options or the vesting of Company RSUs, Company PSUs or Company MSUs, in each case, outstanding as of the Inphi Listing Date and in accordance with their terms and (z) as may be issued in compliance with Section 4.2(b)(ii), there is no: (i) outstanding equity-based compensation award, subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of any of the CompanyInphi Entities; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the CompanyInphi Entities; or (iii) shareholder stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract (other than the Indentures) under which any of the Company Inphi Entities is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Optionsoptions, all outstanding Company Warrants warrants, equity-based compensation awards (whether payable in equity, cash or otherwise) and all outstanding shares of capital stock of each Subsidiary other securities of the Company Inphi Entities have been issued and granted in compliance with with: (i) all applicable securities laws and other applicable Legal Requirements, ; and (ii) all requirements set forth in applicable Contracts, in each case, except as would not, individually or in the aggregate, reasonably be expected to be material to the Inphi Entities, taken as a whole.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are Company’s Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights, and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 2 contracts
Sources: Merger Agreement (Marvell Technology Group LTD), Agreement and Plan of Merger and Reorganization (INPHI Corp)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 200,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 48,268,495 shares (which amount does not materially differ from the amount had been issued and were outstanding as of the date close of this Agreement) have been issued and are outstandingbusiness on July 29, 2013; and (ii) five hundred thousand (500,000) 10,000,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no shares have been issued or are outstanding as of the date of this Agreementoutstanding. All of the outstanding shares of Company Common Stock Shares have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(b) Except as set forth in Part 3.3(b) of the Company Disclosure Schedule: (i) None none of the outstanding shares of Company Common Stock is are entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock is are subject to any right of first refusal in favor of the Company; and (iii) there are no outstanding bonds, debentures, notes or other indebtedness of the Company having a right to vote on any matters on which the stockholders of the Company have a right to vote; and (iv) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation of the MergerThe Company is not under any obligation, (A) the shares of Parent Common Stock issued in exchange for nor is it bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Stock or other securities. The Company Common Stock are subject to issuance pursuant to constitutes the only outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) class of securities of the Company Disclosure Schedule sets forth registered under the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company OptionSecurities Act.
(c) As of the date close of this Agreementbusiness on July 29, six hundred seventy-nine thousand, seven hundred twenty-three 2013: (679,723i) 4,519,867 shares of Company Common Stock are were subject to issuance pursuant to Company Options granted and outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of under the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder2010 Plan; (ii) the number of 359,500 shares of Company Common Stock were subject to such issuance pursuant to Company WarrantOptions granted and outstanding under the 2010 Director’s Plan; (iii) 85,000 shares of Company Common Stock were estimated to be subject to outstanding purchase rights under the exercise ESPP (assuming that the closing price per share of such Company WarrantCommon Stock as reported on the on the purchase date for the current offering period was equal to the Offer Price); (iv) 631,040 shares of Company Common Stock were subject to issuance pursuant to Company Options granted and outstanding under the date on which such Company Warrant was granted2006 Plan; (v) 1,565,134 shares of Company Common Stock were subject to issuance pursuant to the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as Warrants; (vi) 5,366,003 shares of the date of this AgreementCompany Common Stock were reserved for future issuance under Company Equity Plans; and (vii) 442,471 shares of Company Common Stock were reserved for future issuance under the date ESPP. As of the close of business on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies July 29, 2013, the weighted average exercise price of all agreements, certificates and other documents evidencing all warrants which the Company has ever grantedOptions outstanding as of that date was $4.9947. Other than as set forth in this Section 3.3(c), there is no issued, reserved for issuance, outstanding or authorized stock option, stock appreciation, phantom stock; profit participation or similar rights or equity-based awards with respect to the Company.
(d) Except as set forth in Parts 2.3(b), 2.3(c) this Section 3.3 or 2.3(din Part 3.3(d) of the Company Disclosure Schedule Schedule, there is are no: (i) outstanding subscriptionshares of capital stock of, optionor other equity interest in, callthe Company or Company Equity Awards, warrant other than Company Options; (ii) outstanding subscriptions, options, calls, warrants or right rights (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, stock-based performance unit or any other right that is linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock or other securities of the Company, in each case other than derivative securities not issued by the Company; (iiiii) outstanding securitysecurities, instrument instruments, bonds, debentures, notes or obligation obligations that is are or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; or (iiiiv) shareholder stockholder rights plan plans (or similar plan plans commonly referred to as a "“poison pill"”) or Contract Contracts under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 2 contracts
Sources: Merger Agreement (Trius Therapeutics Inc), Merger Agreement (Cubist Pharmaceuticals Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 30,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 .001 par value per share, of which no 5,788,642 shares have been issued and are outstanding as of the date of this Agreement; and (ii) 5,000,000 shares of Preferred Stock, $.001 par value per share, of which 1,428,572 shares have been issued and are outstanding. All of the outstanding shares of Company Common Stock and Company Preferred Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As Except as set forth in Schedule 2.3(a) of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
Disclosure Schedule: (i) None none of the outstanding shares of Company Common Stock or Company Preferred Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock or Company Preferred Stock is subject to any right of first refusal in favor of the Company; and (iii) there is no Acquired Corporation 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 or Company Preferred Stock. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for The Company is not under any shares of Company Common Stock that are subject to a obligation or bound by any Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, it may become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation obligated to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock or Company Preferred Stock. The Company is the sole owner of each outstanding share of capital stock and/or other equity interests in each Company Subsidiary. The exercise prices of all of the Company Warrants exceed the Signing Date Closing Price.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) : 1,191,489 shares of Company Common Stock are subject to issuance pursuant to outstanding options to purchase shares of Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans and otherwise are referred to in this Agreement as "Company Options."). The Company has made available to Parent (A) Part 2.3(b)(i) accurate and complete copies of all stock option plans pursuant to which the Company Disclosure Schedule sets forth has ever granted stock options, and the following information with respect to forms of all stock option agreements evidencing such options and (B) a list detailing (i) each Company Option outstanding as of August 31, 1998: the date of this Agreement; (iii) the particular plan (if any) pursuant to which such Company Option was granted; (iiiii) the name of the optionee; (iiiiv) the number of shares of Company Common Stock subject to such Company Option; (ivv) the exercise price of such Company Option; (vvi) the date on which such Company Option was granted; (vivii) the applicable vesting schedule schedules, and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) 585,818 shares of Company Common Stock are subject to reserved for future issuance pursuant to outstanding warrants to purchase Company Common the Company's 1997 Employee Stock Purchase Plan (the "Company WarrantsESPP"). Part .
(c) Except as set forth in Schedule 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreementsSchedule, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, optionoption (other than Company Options described under Section 2.3(b)), call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the CompanyCompany or any Company Subsidiary; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the CompanyCompany or any Company Subsidiary; (iii) shareholder stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company or any Company Subsidiary is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) to the best of the knowledge of the Company, condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the CompanyCompany or any Company Subsidiary.
(ed) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants Stock and all outstanding shares of capital stock of each Subsidiary of the Company Preferred Stock have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 2 contracts
Sources: Merger Agreement (Cypros Pharmaceutical Corp), Merger Agreement (Cypros Pharmaceutical Corp)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: of one hundred thousand (i) twenty-five million (25,000,000100,000) shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 0.01 par value per share, of which no one hundred thousand (100,000) shares have been issued and are outstanding as of the date of this AgreementAgreement and are held by the Stockholders as provided in Schedule 2.3(a). All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessablenon-assessable and have been issued and granted in compliance with all applicable securities laws and other applicable Legal Requirements. As of No Person other than the date of this AgreementStockholders owns, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock is entitled directly or subject to any preemptive right, right of participation, right of maintenance 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) there is no Acquired Corporation Contract relating to the voting or registration ofindirectly, or restricting any Person from purchasing, selling, pledging has the right to vote or otherwise disposing of (or granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for control any shares of Company Common Stock that are subject to a Contract pursuant to which and there is no Encumbrance on the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock Company Common Stock or other securities of the Company; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock Company Common Stock or other securities of the Company; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock Company Common Stock or any other securitiessecurities of the Company; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock Company Common Stock or other securities of the Company (each such right described in clauses (i) through (iv), a “Company Option”).
(ii) The Company has never repurchased, redeemed or otherwise reacquired any shares of Company Common Stock or other securities of the Company.
(eb) The outstanding capital of Interests consists of one thousand (1,000) units (the “Interests Units”). All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company outstanding Interests Units have been duly authorized and validly issued, and are fully paid and non-assessable and have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements. There are no repurchase options held by any Person with respect to the Interests Units. No Person other than the Company owns, directly or indirectly, or has the right to vote or control any Interests Units and there is no Encumbrance on the Interests Units except as set forth on Schedule 2.3(b).
(i) There is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any Interests Units or other securities of Interests; (ii) all requirements outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any Interests Units or other securities of Interests; (iii) Contract under which Interests is or may become obligated to sell or otherwise issue any Interests Units or any other securities of Interests; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any Interests Units or other securities of Interests.
(ii) Except as set forth in Schedule 2.3(b)(ii), Interests has never repurchased, redeemed or otherwise reacquired any Interests Units or other securities of Interests. Any securities so reacquired by Interests were reacquired in compliance with the applicable Contractsprovisions of the DGCL and all other applicable Legal Requirements.
(fc) The outstanding capital of SkyMall consists of one hundred (100) units (the “SkyMall Units”). All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are SkyMall Units have been duly authorized and validly issued, and are fully paid and nonassessable non-assessable and have been issued and granted in compliance with all applicable securities laws and other applicable Legal Requirements. There are no repurchase options held by any Person with respect to the SkyMall Units. No Person other than Interests owns, directly or indirectly, or has the right to vote or control any SkyMall Units and there is no Encumbrance on the SkyMall Units except as set forth on Schedule 2.3(c).
(i) There is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any SkyMall Units or other securities of SkyMall; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any SkyMall Units or other securities of SkyMall; (iii) Contract under which SkyMall is or may become obligated to sell or otherwise issue any SkyMall Units or any other securities of SkyMall; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any SkyMall Units or other securities of SkyMall.
(ii) Except as set forth in Schedule 2.3(c)(ii), SkyMall has never repurchased, redeemed or otherwise reacquired any SkyMall Units or other securities of SkyMall. Any securities so reacquired by SkyMall were reacquired in compliance with the applicable provisions of the DGCL and all other applicable Legal Requirements.
(d) The outstanding capital of Ventures consists of one hundred (100) units (the “Ventures Units”). All of the outstanding Ventures Units have been duly authorized and validly issued, and are owned beneficially fully paid and non-assessable and have been issued and granted in compliance with all applicable securities laws and other applicable Legal Requirements. There are no repurchase options held by any Person with respect to the Ventures Units. No Person other than SkyMall owns, directly or indirectly, or has the right to vote or control any Venture Units and there is no Encumbrance on the Ventures Units except as set forth on Schedule 2.3(d).
(i) There is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any Ventures Units or other securities of record Ventures; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any Ventures Units or other securities of Ventures; (iii) Contract under which Ventures is or may become obligated to sell or otherwise issue any Ventures Units or any other securities of Ventures; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the Companyeffect that such Person is entitled to acquire or receive any Ventures Units or other securities of Ventures.
(ii) Except as set forth in Schedule 2.3(d)(ii), free Ventures has never repurchased, redeemed or otherwise reacquired any Ventures Unit or other securities of Ventures. Any securities so reacquired by Ventures were reacquired in compliance with the applicable provisions of the NRS and clear of any Encumbrancesall other applicable Legal Requirements.
Appears in 2 contracts
Sources: Merger Agreement (Xse, LLC), Merger Agreement (Xhibit Corp.)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share495,000,000 Shares, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount 115,331,648 Shares had been issued and were outstanding as of the date close of this Agreement) have been issued and are outstandingbusiness on January 18, 2018; and (ii) five hundred thousand (500,000) 5,000,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no shares have been issued or are outstanding as of the date of this Agreementoutstanding. All of the issued and outstanding shares of Company Common Stock have been Shares are duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(ib) None of the outstanding shares equity interests of Company Common Stock is the Acquired Corporations are entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock is , or are subject to any right of first refusal in favor of any Acquired Corporation. There are no outstanding bonds, debentures, notes or other indebtedness of any Acquired Corporation having a right to vote on any matters on which the Company; and (iii) there holders of equity interests of the Acquired Corporations have a right to vote. There is no Acquired Corporation Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation equity interests of the MergerAcquired Corporations. No Acquired Corporation is under any obligation, (A) the shares of Parent Common Stock issued in exchange for or bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as equity interests of the date Acquired Corporations. The Shares constitute the only outstanding class of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) securities of the Company Disclosure Schedule sets forth registered under the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company OptionSecurities Act.
(c) As of the date close of this Agreementbusiness on January 18, six hundred seventy-nine thousand, seven hundred twenty-three 2018: (679,723i) shares of Company Common Stock are 11,345,068 Shares were subject to issuance pursuant to Company Options granted and outstanding warrants under the Company Equity Plans; (ii) 3,077,336 Shares were subject to purchase issuance pursuant to Company Common Stock RSUs or Company PRSUs granted and outstanding under the Company Equity Plans; ("iii) 458,708 Shares of Company Warrants"Restricted Shares or Company Performance Restricted Shares were issued and outstanding under the Company Equity Plans; (iv) 9,337,390 Shares were reserved for future issuance under Company Equity Plans; and (v) 7,391,289 Shares were reserved for future issuance under the Company ESPP. As of the close of business on January 18, 2018, the weighted average exercise price of the Company Options outstanding as of that date was $31.53. Other than as set forth in this Section 3.3(c) and those Company Options, Company RSUs, Company Restricted Shares, Company PRSUs and Company Performance Restricted Shares issued since January 18, 2018 as expressly permitted by Section 5.2(b)(iii). Part 2.3(c, there is no issued, reserved for issuance, outstanding or authorized stock option, stock appreciation, phantom stock, profit participation or similar rights or equity-based awards with respect to any Acquired Corporation.
(d) Section 3.3(d) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding contains a true, correct and complete list, as of the date January 18, 2018, of this Agreement: (i) the name of the warrant holder; (ii) each holder of Company Options, Company RSUs, Company Restricted Shares, Company PRSUs and Company Performance Restricted Shares, the number of shares outstanding Company Options, Company RSUs, Company Restricted Shares, Company PRSUs and Company Performance Restricted Shares held by such holder, the grant date of Company Common Stock subject to each such Company Warrant; (iii) Option, Company RSU, Company Restricted Share, Company PRSUs and Company Performance Restricted Shares, the number of Shares such holder is entitled to receive upon the exercise price of each Company Option and the corresponding exercise price, the expiration date of each Company Option, the vesting schedule of each Company Option, Company RSU, Company Restricted Shares, Company PRSU and Company Performance Restricted Share and the Company Equity Plan pursuant to which each such Company Warrant; (iv) the date on which such Option, Company Warrant RSU, Company Restricted Share, Company PRSU and Company Performance Restricted Share was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(bthis Section 3.3, Company Options, Company RSUs, Company Restricted Shares, Company PRSUs and Company Performance Restricted Shares issued since January 18, 2018 as expressly permitted by Section 5.2(b)(iii) and any Shares issued upon exercise of Company Options or the settlement of Company RSUs outstanding as of the close of business on January 18, 2018 or issued since January 18, 2018 as expressly permitted by Section 5.2(b)(iii), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is are no: (i) outstanding subscriptionshares of capital stock of or other securities of any Acquired Corporation; (ii) outstanding subscriptions, optionoptions, callcalls, warrant warrants or right rights (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, stock-based performance unit or any other right that is linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock or other securities of the Companyany Acquired Corporation, in each case other than derivative securities not issued by an Acquired Corporation; (iiiii) outstanding securitysecurities, instrument instruments, bonds, debentures, notes or obligation obligations that is are or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Companyany Acquired Corporation, in each case other than convertible or exchangeable securities not issued by an Acquired Corporation; or (iiiiv) shareholder stockholder rights plan plans (or similar plan plans commonly referred to as a "“poison pill"”) or Contract Contracts under which the Company any Acquired Corporation is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 2 contracts
Sources: Merger Agreement (Juno Therapeutics, Inc.), Merger Agreement (Celgene Corp /De/)
Capitalization, Etc. (a) The As of the date of this Agreement, the authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 30,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 15,589,951 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) 2,000,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no shares have been issued or are outstanding outstanding. The Company holds 10,555 shares of its capital stock in its treasury as of the date of this Agreement. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As None of the date of this Agreement, there are 1,151,109 Avanex Corporations (other than the Company) holds any shares of Company Common Stock held in treasury by the Company and no or any rights to acquire shares of stock held in treasury by any of the other Acquired CorporationsCompany Common Stock.
(b) Except as set forth in Part 2.3(b) of the Company Disclosure Schedule: (i) None none of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor of the Company; and (iii) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation None of the MergerAvanex Corporations is under any obligation, (A) the shares of Parent Common Stock issued in exchange for or is bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common StockStock or other securities, except for the Company’s right to repurchase or reacquire restricted shares of Company Common Stock held by an employee of the Company upon termination of such employee’s employment.
(bc) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement, 300,000 shares of Company Preferred Stock, designated as Series A Participating Preferred Stock, are reserved for future issuance upon exercise of the rights (the “Rights”) issued pursuant to the Preferred Stock Rights Agreement, dated as of July 26, 2001, between the Company and EquiServe Trust Company, N.A, as Rights Agent, as amended on March 18, 2002, May 12, 2003, May 16, 2005, March 6, 2006 and January 27, 2009 (the “Company Rights Agreement”).
(d) As of the date of this Agreement: (i) 988,567 shares of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Options; (ii) 116,889 shares of Company Common Stock. (Stock options granted by the Company are reserved for future issuance pursuant to the Company's stock option plans Officer and Director Share Purchase Plan (the “Company Officer and Director SPP”); (iii) 160,318 shares of Company Common Stock are referred reserved for future issuance pursuant to in this Agreement as "the 1999 Employee Stock Purchase Plan (the “Company Options."ESPP”); (iv) Part 2.3(b)(i494,667 shares of Company Common Stock are reserved for future issuance pursuant to Company RSUs; and (v) 838,390 shares of Company Common Stock are reserved for future issuance pursuant to equity awards not yet granted under the Company Disclosure Schedule Option Plans.
(e) The Company has made available to Parent a complete and accurate list that sets forth the following information with respect to each Company Option Equity Award outstanding as of August 31, 1998the date of this Agreement the following information: (i) the particular plan (if any) pursuant to which such Company Option Equity Award was granted; (ii) the name of the optioneeholder of such Company Equity Award; (iii) the number of shares of Company Common Stock subject to such Company OptionEquity Award; (iv) the per share exercise price (if any) of such Company OptionEquity Award; (v) the applicable vesting schedule, and the extent to which such Company Equity Award is vested and exercisable, if applicable; (vi) the date on which such Company Option Equity Award was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Equity Award expires; (viii) if such Company Equity Award is a Company Option, whether such Company Option expiresis an “incentive stock option” (as defined in the Code) or a non-qualified stock option; and (ix) if such Company Equity Award is in the form of Company RSU, the dates on which shares of Company Common Stock are scheduled to be delivered, if different from the applicable vesting schedule. The Company has delivered Made Available to Parent accurate and complete copies of all stock option equity plans pursuant to which any outstanding Company Equity Awards were granted by the Company has ever granted stock options Company, and the form forms of all stock option Company Equity Award agreements evidencing such optionsCompany Equity Awards. The exercise price of each Company Option is not less than the fair market value of a share of Company Common Stock as determined on the date of grant of such Company Option pursuant to the equity plan pursuant to which such Company Option was granted. All grants of Company Equity Awards were recorded on the Company’s financial statements (including, any related notes thereto) contained in the Company SEC Documents (as defined in Section 2.4(a)) in accordance with GAAP and, to the Knowledge of the Company, no such grants involved any “back dating” or similar practices with respect to the effective date of grant (whether intentionally or otherwise). There are no commitments outstanding or agreements authorized stock appreciation, phantom stock, profit participation or similar rights or equity-based awards with respect to any of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company OptionAvanex Corporations.
(cf) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c2.3(f) of the Company Disclosure Schedule accurately sets forth the following information forth, with respect to each Company Warrant that is outstanding as of the date of this Agreement: (i) the name of the warrant holderholder of such Company Warrant; (ii) the total number of shares of Company Common Stock that are subject to such Company Warrant; (iii) the exercise price date on which such Company Warrant was issued and the term of such Company Warrant; (iv) the date on which vesting schedule for such Company Warrant was grantedWarrant; and (v) the applicable vesting schedule exercise price per share of Company Common Stock purchasable under such Company Warrant. The Company has Made Available to Parent accurate and the extent complete copies of each Contract pursuant to which such any Company Warrant is vested outstanding.
(g) Except as set forth in Sections 2.3(a), 2.3(c), 2.3(d) and exercisable 2.3(f) or in Part 2.3(f) of the Company Disclosure Schedule, as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of any of the CompanyAvanex Corporations; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.the
Appears in 2 contracts
Sources: Merger Agreement (Avanex Corp), Agreement and Plan of Merger and Reorganization (Bookham, Inc.)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 50,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 19,508,902 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of the date of this AgreementAgreement and all of which shares are owned by the LLC; and (ii) 23,241,098 shares of Company Converting Preferred Stock, all of which have been issued and are outstanding as of the date of this Agreement and all of which are owned by the LLC. Schedule 2.3(a) sets forth (A) the names of the owners of the membership interests in the LLC ("Interests") and the number of shares and percentage ownership held by each such owner and (B) the names of the Persons who will be the owners of the Company Common Stock and the Company Converting Preferred Stock immediately following the Conversion and the number of shares which will be held by such Persons. The Company does not hold any shares of its capital stock in its treasury. All of the outstanding shares of Company Common Stock and Company Converting Preferred Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As Except as identified in Part 2.3(a) of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
Disclosure Schedule: (i) None none of the outstanding shares of Company Common Stock is or Company Converting Preferred Stock or any of the Interests are entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock is or Company Converting Preferred Stock or any of the Interests are subject to any right of first refusal in favor of the Companyrefusal; and (iii) there is no Acquired Corporation AAHoldings Entity 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. Upon consummation Stock or any of the MergerInterests. None of the AAHoldings Entities is under any obligation, (A) the shares of Parent Common Stock issued in exchange for or is bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common StockStock or Company Converting Preferred Stock or any of the Interests. Upon consummation of the Conversion, all of the Company Common Stock and Company Converting Preferred Stock shall be owned by the owners of the LLC identified on Schedule 2.3(a), and the LLC shall cease to exist.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding Except as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to identified in this Agreement as "Company Options.") Part 2.3(b)(i2.3(b) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31Schedule, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the CompanyCompany or any Interests in the LLC; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the CompanyCompany or any Interests in the LLC; (iii) shareholder stockholder or member rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company or the LLC is or may become obligated to sell or otherwise issue any shares of its capital stock stock, membership interests, or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the CompanyCompany or any Interests in the LLC.
(ec) All outstanding Interests and outstanding shares of Company Common Stock, all outstanding Stock and Company Options, all outstanding Company Warrants Converting Preferred Stock and all outstanding shares of capital stock or membership interests of each Subsidiary of the Company LLC have been issued and granted in compliance with with: (i) all applicable securities laws and other applicable Legal Requirements, ; and (ii) all requirements set forth in applicable Contracts. The Company has no Subsidiaries.
(fd) All of the outstanding shares of capital stock of each or membership interests of the Entities identified in Part 2.1(a)(i2.1(a) of the Company Disclosure Schedule have been duly authorized and are validly issued, are fully paid and nonassessable and are owned beneficially and of record by the LLC, free and clear of any Encumbrances. Upon consummation of the Conversion, all such shares and membership interests shall be owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (Brainworks Ventures Inc), Agreement and Plan of Merger and Reorganization (Brainworks Ventures Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share200,000,000 Shares, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount 48,145,009 Shares had been issued and were outstanding as of the date close of this Agreement) have been issued and are outstanding; business on February 28, 2020 (the “Capitalization Date”), of which no Restricted Shares were outstanding and (ii) five hundred thousand (500,000) 10,000,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no shares are outstanding. From the Capitalization Date to the execution of this Agreement, the Company has not issued any Shares except pursuant to the exercise of the purchase rights under the Company ESPP or the exercise of Company Options outstanding as of the date Capitalization Date in accordance with their terms and, since the Capitalization Date, the Company has not issued any Company Options or other equity or equity-based awards, in each case, other than pursuant to any offer of this Agreement. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of employment or Contract dated on or prior to the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired CorporationsCapitalization Date.
(b) (i) None of the outstanding shares equity interests of the Company Common Stock is are entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) none there are no outstanding bonds, debentures, notes or other indebtedness of the Company having a right to vote on any matters on which the holders of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor equity interests of the CompanyCompany have a right to vote, as applicable; and (iii) there is no Acquired Corporation Contract to which the Company is bound relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation equity interests of the Merger, (A) Company. The Shares constitute the shares only outstanding class of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) securities of the Company Disclosure Schedule sets forth registered under the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company OptionSecurities Act.
(c) As of the date close of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three business on the Capitalization Date: (679,723i) shares of Company Common Stock are 4,265,130 Shares were subject to issuance pursuant to Company Options granted and outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of under the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; Equity Plans, (ii) the number of shares of 5,323,581 Shares were reserved for future issuance under Company Common Stock subject to such Company Warrant; Equity Plans and (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which 1,038,984 Shares were reserved for future issuance under the Company has ever grantedESPP.
(d) Except as set forth in Parts 2.3(bthis Section 3.3 and except for the Company Options outstanding as of the date of this Agreement (and Shares issuable upon the exercise thereof), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is are no: (i) outstanding subscriptionshares of capital stock or other securities of the Company; (ii) outstanding subscriptions, optionoptions, callcalls, warrant warrants or right rights (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, stock-based performance unit or any other right that is linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock or other securities of the Company, in each case other than derivative securities not issued by the Company; (iiiii) outstanding securitysecurities, instrument instruments, bonds, debentures, notes or obligation obligations that is are or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (iiiiv) shareholder stockholder rights plan plans (or similar plan plans commonly referred to as a "“poison pill"”) or Contract Contracts under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (ivv) condition voting trusts or circumstance that may give rise other Contract to or provide which the Company is a basis for the assertion of a claim by any Person party with respect to the effect that such Person is entitled to acquire or receive any shares voting of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(iSection 3.3(e) of the Company Disclosure Schedule are validly sets forth a listing of all Persons who hold outstanding Company Options as of the close of business on the Capitalization Date, indicating, with respect to each Company Option, the number of Shares subject thereto, the date of grant, the vesting schedule and the per Share exercise price, and expiration date. Other than Shares reserved for future issuance under the Company ESPP, the outstanding purchase rights under the Company ESPP or as set forth in this Section 3.3(e), as of the date of the Capitalization Date, there is no issued, fully paid and nonassessable and are owned beneficially and of record by reserved for issuance, outstanding or authorized stock option, stock appreciation, phantom stock, profit participation or similar equity or equity-based awards with respect to the Company, free and clear of any Encumbrances.
Appears in 2 contracts
Sources: Merger Agreement (Forty Seven, Inc.), Merger Agreement (Gilead Sciences Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 120,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount 62,622,269 had been issued and were outstanding as of the date close of this Agreement) have been issued business on June 12, 2025 and are outstanding3,033 were held by the Company as treasury shares as of the close of business on June 12, 2025; and (ii) five hundred thousand (500,000) 5,000,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no shares are outstanding as of the date of this Agreementoutstanding. All of the outstanding shares of the capital stock of the Company Common Stock have been duly authorized and validly issued, issued and are fully paid and nonassessable. As .
(b) All of the date of this Agreement, there are 1,151,109 outstanding shares of Company Common Stock held in treasury by the Company and no shares of capital stock held in treasury by any of the other Acquired CorporationsCompany’s Subsidiaries have been duly authorized and validly issued and are fully paid and nonassessable.
(i) None of the outstanding shares of Company Common Stock is capital stock of the Acquired Corporations are entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock is capital stock of the Acquired Corporations are subject to any right of first refusal in favor of the Companyany Acquired Corporation; and (iii) there are no outstanding bonds, debentures, notes or other indebtedness of any Acquired Corporation having a right to vote on any matters on which the stockholders of the Acquired Corporations have a right to vote; and (iv) there is no Acquired Corporation Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation capital stock of the MergerAcquired Corporations. No Acquired Corporation is under any obligation, (A) the shares of Parent Common Stock issued in exchange for or bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of capital stock of the Acquired Corporations, except in connection with any acquisitions, or deemed acquisitions, of Shares or other equity securities of the Company Common Stockin connection with (x) the withholding of Taxes in connection with the exercise, vesting or settlement of Company Equity Awards and (y) forfeitures of Company Equity Awards. The Shares constitute the only outstanding class of securities of the Company registered under the Securities Act.
(bd) As of August 31the close of business on June 12, 19982025: (i) 5,617,203 Shares were issuable upon the exercise of outstanding Company Options, 957,725 shares (which amount does not materially differ from ii) 1,926,846 Shares were issuable upon the amount subject vesting or settlement of outstanding Company RSUs, (iii) 1,220,998 Shares were issuable upon the vesting or settlement of outstanding Company PSUs (assuming vesting pursuant to options Section 2.8(d)) and 1,530,473 Shares were issuable upon the vesting or settlement of outstanding Company PSUs (assuming maximum level of performance and achievement of all applicable performance goals) and (iv) 366,758 Shares remain available for future issuance under the Company ESPP. Other than as set forth in this Section 3.3, there are no issued, reserved for issuance, outstanding or authorized stock option, stock appreciation, phantom stock, profit participation or similar rights or equity-based awards with respect the Company.
(e) There are no issued, reserved for issuance, outstanding or authorized stock option, stock appreciation, phantom stock, profit participation or similar rights or equity-based awards with respect to any Subsidiary of the Company.
(f) Except (y) as set forth in this Section 3.3 and (z) for the Company Equity Awards outstanding as of the date of this AgreementAgreement (or issued after the date hereof in compliance with Section 5.2(b)(iii) of Company Common Stock are subject to issuance pursuant to outstanding options to or Section 5.2(b)(iv)) and purchase Company Common Stock. (Stock options granted by rights under the Company pursuant to the Company's stock option plans ESPP, there are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscriptionshares of capital stock of or other securities of any Acquired Corporation; (ii) outstanding subscriptions, optionoptions, callcalls, warrant warrants or right rights (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, stock-based performance unit or any other right that is linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock or other securities of the Companyany Acquired Corporation, in each case other than derivative securities not issued by an Acquired Corporation; (iiiii) outstanding securitysecurities, instrument instruments, bonds, debentures, notes or obligation obligations that is are or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Companyany Acquired Corporation; or (iiiiv) shareholder stockholder rights plan plans (or similar plan plans commonly referred to as a "“poison pill"”) or Contract Contracts under which the Company any Acquired Corporation is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Sage Therapeutics, Inc.), Merger Agreement (Supernus Pharmaceuticals, Inc.)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 110,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 27,457,621 shares (which amount does not materially differ from the amount were issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) 10,000,000 shares of preferred stockPreferred Stock, $1.00 .001 par value per share, of which no shares have been issued or are outstanding as of the date of this Agreementoutstanding. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As The Company does not hold any shares of the date of this Agreement, there its capital stock in its treasury. There are 1,151,109 no shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) . None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii) none . None of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor of the Company; and (iii) . Other than the Other Agreements, there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b. Part 2.3(a)(iii) As of August 31, 1998, 957,725 the Disclosure Schedule accurately and completely describes all repurchase rights held by the Company with respect to shares (which amount does not materially differ from the amount subject to options outstanding of Company Common Stock as of the date of this Agreement, and specifies which of those repurchase rights are currently exercisable.
(b) Part 2.3(b) of the Disclosure Schedule accurately sets forth the number of shares of Company Common Stock owned (of record or beneficially) by each of the Specified Individuals and by each of the Specified Associates. No Specified Individual or Specified Associate has acquired or disposed of any shares of Company Common Stock since January 1, 2000. No shares of Company Common Stock held by any of the Specified Individuals are subject to restricted stock purchase agreements. Except as set forth in Part 2.3(a) or Part 2.3(b) of the Disclosure Schedule, no Specified Individual or Specified Associate directly or indirectly owns (of record or beneficially) any shares of capital stock or other securities of any Acquired Corporation, or any option, warrant or other right (whether or not currently exercisable) to acquire (by purchase, exercise, conversion or otherwise) any shares of capital stock or other securities of any Acquired Corporation. Each of the Specified Individuals and each of the Specified Associates owns his, her or its shares of Company Common Stock free and clear of any Encumbrances.
(c) As of the date of this Agreement: (i) 3,274,005 shares of Company Common Stock are subject to issuance pursuant to stock options granted and outstanding under the Company’s 1998 Stock Option Plan (the “1998 Plan”); (ii) 3,417,550 shares of Company Common Stock are subject to issuance pursuant to stock options granted and outstanding under the Company’s 2001 Stock Option Plan (the “2001 Plan”); (iii) 240,000 shares of Company Common Stock are subject to issuance pursuant to stock options granted and outstanding under the Company’s 2001 Director Option Plan (the “2001 Director Plan” and, together with the 1998 Plan and the 2001 Plan, the “Option Plans”); (iv) no shares of Company Common Stock are reserved for future issuance pursuant to stock options not yet granted under the 1998 Plan; (v) 5,238,088 shares of Company Common Stock are reserved for future issuance pursuant to stock options not yet granted under the 2001 Plan; (vi) 326,407 shares of Company Common Stock are reserved for future issuance pursuant to stock options not yet granted under the 2001 Director Plan; and (vii) 3,966,750 shares of Company Common Stock are reserved for future issuance pursuant to the Company’s 2001 Employee Stock Purchase Plan (the “ESPP”). (Options to purchase shares of Company Common Stock. Stock (Stock options whether granted by the Company pursuant to the Company's stock option plans Option Plans, assumed by the Company in connection with any merger, acquisition or similar transaction or otherwise issued or granted) are referred to in this Agreement as "“Company Options."”) Part 2.3(b)(i2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998the date of this Agreement: (iA) the particular plan Option Plan (if any) pursuant to which such Company Option was granted; (iiB) the name of the optionee; (iiiC) the number of shares of Company Common Stock subject to such Company Option; (ivD) the exercise price of such Company Option; (vE) the date on which such Company Option was granted; (viF) the applicable vesting schedule schedule, and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (viiG) the date on which such Company Option expires; (H) whether such Company Option is an “incentive stock option” (as defined in the Code) or a non-qualified stock option; and (I) whether such Company Option is held by a Specified Associate. The Company has delivered Made Available to Parent accurate and complete copies of all stock option plans pursuant to which any of the Company Acquired Corporations has ever granted stock options options, and the form forms of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), Part 2.3(c) or 2.3(d) of the Company Disclosure Schedule and except for options granted after the date of this Agreement in accordance with Section 4.2(b)(ii) or rights under the ESPP to purchase shares of Company Common Stock, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; (iii) shareholder stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which any of the Company Acquired Corporations is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) to the Company’s Knowledge, condition or circumstance that may give has given rise to or provide provides a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of any of the CompanyAcquired Corporations.
(e) All outstanding shares of Company Common Stock, all outstanding Company Optionsoptions, all outstanding Company Warrants warrants and all outstanding shares of capital stock of each Subsidiary other securities of the Company Acquired Corporations have been issued and granted in compliance with with: (i) all applicable securities laws and other applicable Legal Requirements, ; and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are Company’s Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof, and are owned beneficially and of record by the Company, free and clear of any Encumbrances, other than restrictions on transfer imposed by applicable securities laws.
Appears in 2 contracts
Sources: Merger Agreement (Nassda Corp), Merger Agreement (Synopsys Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share500,000,000 Shares, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount 18,821,231 Shares had been issued and were outstanding as of the date close of this Agreement) have been issued and are outstandingbusiness on September 15, 2016 (the “Capitalization Date”); and (ii) five hundred thousand (500,000) 1,000,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no shares have been issued or are outstanding as outstanding. As of the date close of this Agreementbusiness on the Capitalization Date, no Shares were held by the Company in its treasury. All of the outstanding shares of Shares have been, and all Shares reserved for issuance in connection with Company Common Stock have been Options and Company Warrants will be, when issued in accordance with their respective terms, duly authorized and authorized, validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company nonassessable and no shares of stock held in treasury by any of the other Acquired Corporationsnot subject to preemptive rights.
(i) None of the outstanding shares of capital stock of the Company Common Stock is are entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of capital stock of the Company Common Stock is are subject to any right of first refusal in favor of the Company; and (iii) there are no outstanding bonds, debentures, notes or other indebtedness of the Company having a right to vote on any matters on which the stockholders of the Company have a right to vote; and (iv) there is no Acquired Corporation Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation capital stock of the MergerCompany. The Company is not under any obligation, (A) the shares of Parent Common Stock issued in exchange for or bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of capital stock or other securities of the Company. The Shares constitute the only outstanding class of securities of the Company Common Stockregistered under the Securities Act.
(bc) As of August 31, 1998, 957,725 shares the close of business on the Capitalization Date: (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreementi) of Company Common Stock are 3,307,554 Shares were subject to issuance pursuant to Company Options granted and outstanding options to purchase Company Common Stock. (Stock options granted by under the Company Equity Plans (at an aggregate of a weighted-average exercise price of $11.96 per Share), (ii) 52,822 Shares were subject to issuance pursuant to the Company's stock option plans are referred to Company Warrants (at an aggregate of a weighted-average exercise price of $12.07 per Share), and (iii) 1,110,773 Shares were reserved for future issuance under Company Equity Plans. As of the close of business on September 15, 2016, the weighted average exercise price of the Company Options outstanding as of that date was $11.96. Other than as set forth in this Agreement as "Company Options.") Part 2.3(b)(iSection 3.3(c), there are no issued, reserved for issuance, outstanding or authorized stock option, restricted shares, stock appreciation, performance shares or units, contingent value rights, phantom stock, profit participation, warrant or similar rights or equity-based awards with respect to the Company. Section 3.3(c)(i) of the Company Disclosure Schedule sets forth a complete and accurate list of the following information with respect to following, on a holder-by-holder basis, for each outstanding Company Option outstanding as of August 31, 1998the close of business on the Capitalization Date: (i) the particular plan pursuant to which such Company Option was granted; (iiA) the name of the optioneeholder of the Company Option; (iiiB) the number of shares of Company Common Stock Shares subject to such the Company Option; (ivC) the Company Equity Plan under which the award was granted; (D) the date of grant of the Company Option; (E) the exercise price of such the Company Option; (vF) whether the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreementintended to be an incentive stock option; and (viiG) the expiration date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such optionsOption. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(cSection 3.3(c)(ii) of the Company Disclosure Schedule sets forth a complete and accurate list of the following information with respect to following, on a holder-by-holder basis, for each outstanding Company Warrant outstanding as of the close of business on the Capitalization Date: (A) the name of the holder of the Company Warrant; (B) the number of Shares subject to the Company Warrant; (C) the date of issuance of the Company Warrant; (D) the exercise price of the Company Warrant; and (E) the expiration date of the Company Warrant. The Company has provided to Parent complete and accurate copies of all Company Warrants. Between the Capitalization Date and the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever grantednot granted any equity or equity-based award to any of the directors, employees or independent contractors of the Company.
(d) Except as set forth in Parts 2.3(b)this Section 3.3, 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is are no: (i) outstanding subscriptionshares of capital stock of or other securities of the Company; (ii) outstanding subscriptions, optionoptions, callcalls, warrant warrants or right rights (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, stock-based performance unit or any other right that is linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock or other securities of the Company, in each case other than derivative securities not issued by the Company; (iiiii) outstanding securitysecurities, instrument instruments, bonds, debentures, notes or obligation obligations that is are or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (iiiiv) shareholder stockholder rights plan plans (or similar plan plans commonly referred to as a "“poison pill"”) or Contract Contracts under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (ivv) condition voting trusts or circumstance that may give rise other Contract to or provide which the Company is a basis for the assertion of a claim by any Person party with respect to the effect that such Person is entitled to acquire or receive any shares voting of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 2 contracts
Sources: Merger Agreement (Allergan PLC), Agreement and Plan of Merger (Tobira Therapeutics, Inc.)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 50,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 23,001,126 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of the date of this Agreement; and (ii) 5,000,000 shares of Company Preferred Stock, of which no shares are outstanding. Except as set forth in Part 3.3(a) of the Company Disclosure Schedule, the Company does not hold any shares of its capital stock in its treasury. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As Except as set forth in Part 3.3(a) of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
Disclosure Schedule: (i) None none of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (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) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation of the MergerThe Company is not under any obligation, (A) the shares of Parent Common Stock issued in exchange for nor is it bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement: (i) 500,000 shares of Company Preferred Stock, designated Series A Junior Participating Preferred Stock, are reserved for future issuance upon exercise of the rights (the "COMPANY RIGHTS") issued pursuant to the Rights Agreement; and (ii) 3,711,751 shares of Company Common Stock are subject to reserved for future issuance pursuant to stock options granted and outstanding under the Company's 2000 Equity Incentive Plan (options to purchase shares of Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "COMPANY OPTIONS"); and (iii) 52,534 shares of Company Options.Common Stock are reserved for future issuance pursuant to outstanding warrants (the ") COMPANY WARRANTS"). Part 2.3(b)(i3.3(b) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option and Company Warrant outstanding as of August 31, 1998the date of this Agreement: (i) the particular plan (if any) pursuant to which such Company Option was granted; (ii) the name of the optioneeoptionee or warrantholder; (iii) the number of shares of Company Common Stock subject to such Company OptionOption or Company Warrant; (iv) the exercise price of such Company OptionOption or Company Warrant; (v) the date on which such Company Option or Company Warrant was granted; (vi) the applicable vesting schedule schedule, and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option or Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(dc) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(dPart 3.3(c) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (iii) shareholder stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(ed) All outstanding shares of Company Common Stockcapital stock, all outstanding Company Options, all outstanding Company Warrants options and all outstanding shares of capital stock of each Subsidiary other securities of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(fe) All of the outstanding shares of capital stock of each of the Entities corporations, if any, identified in Part 2.1(a)(i3.1(a) of the Company Disclosure Schedule have been duly authorized and are validly issued, are fully paid and nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof, and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 2 contracts
Sources: Merger Agreement (Genomica Corp /De/), Merger Agreement (Exelixis Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share110,000,000 Shares, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount 48,356,839 Shares have been issued and or are outstanding as of the date close of this Agreement) have been issued and are outstandingbusiness on the Reference Date; and (ii) five hundred thousand (500,000) 10,000,000 shares of preferred stockCompany Preferred Stock, $1.00 par value per share, none of which no shares are issued or outstanding as of the close of business on the day immediately preceding the date of this Agreement. All of the outstanding shares of Company Common Stock Shares have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock Shares is entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; , (ii) none of the outstanding shares of Company Common Stock Shares is subject to any right of first refusal in favor of the Company; and , (iii) there are no outstanding bonds, debentures, notes or other Indebtedness of the Company having a right to vote on any matters on which the stockholders of the Company have a right to vote and (iv) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Shares. The Company Common Stock. Upon consummation of the Mergeris not under any obligation, (A) the shares of Parent Common Stock issued in exchange for nor is it bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Shares. The Company Common Stock are subject to issuance pursuant to constitutes the only outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) class of securities of the Company Disclosure Schedule sets forth Acquired Corporations registered under the following information Securities Act. All outstanding Shares have been offered and issued in compliance in all material respects with respect to each Company Option outstanding as of August 31all applicable securities laws, 1998: (i) including the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule Securities Act and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option“blue sky” laws.
(c) As of the date close of this Agreementbusiness on the Reference Date: (i) 5,025,163 Shares are subject to issuance pursuant to Company Options granted and outstanding under the Company Equity Plans, six hundred seventy-nine thousand(ii) 635,165 Shares are issuable upon the settlement of Company RSU Awards, seven hundred twenty-three and (679,723iii) 37,153 shares of Company Common Stock are estimated to be subject to issuance pursuant to outstanding warrants to purchase rights under the ESPP (assuming that the closing price per share of Company Common Stock ("Company Warrants"as reported on the purchase date for the current offering period was equal to the Offer Price). Part 2.3(c) As of the close of business on the Reference Date, the weighted average exercise price of the Company Disclosure Schedule sets forth Options outstanding as of such date was $3.98 per Share. The Company has delivered or made available to Parent or Parent’s Representatives copies of all Company Equity Plans covering the following information with respect to each Company Warrant Options and Company RSU Awards outstanding as of the date of this Agreement: (iAgreement and the forms of agreements evidencing such Company Options and Company RSU Awards. Other than as set forth in this Section 3.3(c) and Section 3.3(b), there is no issued, reserved for issuance, outstanding or authorized stock option, restricted stock unit award, performance stock award, stock appreciation, phantom stock, profit participation or similar rights or equity-based awards with respect to the name Company. No Company Option or Company RSU Award is subject to Section 409A of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever grantedCode.
(d) Except as set forth in Parts 2.3(b)this Section 3.3, 2.3(c) or 2.3(d) as of the Company Disclosure Schedule close of business on the Reference Date, there is are no: (i) outstanding subscriptionshares of capital stock, optionor other equity interest in the Acquired Corporations; (ii) outstanding subscriptions, calloptions, warrant calls, warrants or right rights (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock or other securities of the Company; (ii) outstanding securityunits, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock stock-based performance units or any other securities; rights that are linked to, or (iv) condition the value of which is in any way based on or circumstance that may give rise to or provide a basis for derived from the assertion value of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.securities
Appears in 2 contracts
Sources: Merger Agreement (Merck & Co., Inc.), Merger Agreement (Immune Design Corp.)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million 18,000,000 Shares (25,000,000including Company Restricted Shares), of which 11,509,269 Shares were issued and outstanding and no Shares were issued and held in the treasury of the Company, in each case, as of the close of business on January 15, 2015; and (ii) 1,000,000 shares of Company Common Preferred Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which no shares (which amount does not materially differ from the amount were issued and outstanding (or held in treasury) as of the close of business on January 15, 2015. Between the close of business on January 15, 2015 and the date of this Agreement) have been , the Company has not issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stockcapital stock or other securities of the Company, $1.00 par value per shareother than upon the exercise of Company Options or the vesting or settlement of Company Stock Awards, of which no shares are in each case, outstanding as of the date close of this Agreementbusiness on January 15, 2015, pursuant to the terms of such Company Options or Company Stock Award. All of the outstanding shares of Company Common Stock Shares have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(b) Except as set forth in Part 3.3(b) of the Company Disclosure Schedule: (i) None none of the outstanding shares of Company Common Stock Shares is entitled or subject to any preemptive right, antidilutive right, right of repurchase or forfeiture, right of participation, right of maintenance maintenance, conversion right, redemption right or any similar right; (ii) none of the outstanding shares of Company Common Stock Shares is subject to any right of first refusal in favor of the Company; and (iii) there are no outstanding bonds, debentures, notes or other indebtedness of the Acquired Corporations having a right to vote (or convertible into or exercisable for such securities having the right to vote) on any matters on which the stockholders of the Company have a right to vote; (iv) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such ContractShares. None of the Acquired Corporations is under any obligation obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Shares or other Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Optionsecurities.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) the Company has no shares of Company Common Stock are capital stock reserved for issuance, except for (i) 530,915 Shares subject to issuance pursuant to Company Options granted and outstanding warrants under the Company Equity Plans, and (ii) 175,000 shares of Series B Preferred Stock subject to purchase Company Common Stock issuance upon the exercise of rights issued pursuant to the Shareholder Rights Plan and ("Company Warrants"). Part 2.3(ciii) an indeterminate number of Shares subject to issuance pursuant to the ESPP as of February 28, 2015, the end of the current offer period under the ESPP. The Company Disclosure Schedule sets forth has made available to Parent or Parent’s Representatives in the following information with respect Data Room prior to each the date of this Agreement true and complete copies of the ESPP and all Company Warrant Equity Plans covering the Company Options and Company Restricted Shares outstanding as of the date of this Agreement: , the forms of all stock award agreements evidencing such Company Options and Company Restricted Shares (i) and any other stock award agreements to the name extent there are material variations from the form of agreement). Each outstanding Company Option was granted in compliance in all material respects with all applicable Law and all of the warrant holder; (ii) terms and conditions of the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent Equity Plan pursuant to which such it was issued. Part 3.3(c) of the Company Warrant is vested Disclosure Schedule contains a correct and exercisable complete list of each outstanding Company Option and Company Stock Award as of the date of this Agreement; , including the holder’s name, date of grant, exercise or purchase price (if applicable), number of Shares subject thereto, number of Shares subject thereto that have vested as of such date, vesting schedule, whether any Company Option is intended to qualify as an Incentive Stock Option (within the meaning of the Code), and (vii) the date on Company Equity Plan under which such Company Warrant expires. The Option and Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever Stock Award was granted.
(d) All of the outstanding capital stock, ownership interests in and other securities of each Subsidiary of the Company are duly authorized, validly issued, fully paid and nonassessable and, except as set forth in Part 3.3(d) of the Company Disclosure Schedule, are owned, directly or indirectly, by the Company, free and clear of any Encumbrance. Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(dPart 3.3(d) of the Company Disclosure Schedule Schedule, none of the Acquired Corporations owns any capital stock, ownership interests in or other securities of any Person, except for securities in another Acquired Corporation.
(e) Except as set forth in Part 3.3(e) of the Company Disclosure Schedule, there is no: (i) outstanding subscription, option, call, warrant warrant, agreement, arrangement, commitment or other right (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, stock-based performance unit, shares of phantom stock, stock appreciation right, profit participation right or any other right that is linked to, or the value of which is in any way based on or derived from, the value of any shares of capital stock or other securities of any of the CompanyAcquired Corporations; (ii) outstanding security, instrument instrument, bond, debenture, note or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the Company; Acquired Corporations or (iii) shareholder stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which any of the Company Acquired Corporations is or may become obligated to sell or otherwise issue issue, or register, any shares of its capital stock or any other securities; or (iv. Except as set forth in Part 3.3(e) condition or circumstance that may give rise to or provide a basis of the Company Disclosure Schedule and except for the assertion of Voting Agreements, there are no stockholder agreements, voting trusts or other agreements or understandings to which any Acquired Corporation is a claim by any Person party relating to the effect that such Person is entitled to acquire voting or receive disposition of any shares of the capital stock or other securities of any Acquired Corporation, or granting to any Person or group of Persons the Company.
right to elect, or to designate or nominate for election, a director to the Board of Directors (eor similar governing body) of any Acquired Corporation. All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary dividends or distributions on securities of the Company that have been issued and granted declared on or prior to the date of this Agreement have been paid in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contractsfull.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 2 contracts
Sources: Merger Agreement (Quad/Graphics, Inc.), Merger Agreement (COURIER Corp)
Capitalization, Etc. (a) The authorized capital stock of the Company Tigris consists of: of (i) twenty-five million (25,000,000) 100,000,000 shares of Company Tigris Common Stock, $.005 par value $0.001 per share, of which, as of August 31, 1998, 8,076,404 which 19,123,212 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and outstanding as of June 26, 2014 (the “Capitalization Date”), (ii) five hundred thousand (500,000) 4,000,000 shares of preferred stockPreferred Stock, $1.00 par value $0.001 per share, of which no shares have been issued and are outstanding as of the date Capitalization Date and (iii) 1,000,000 shares of this AgreementSeries A Junior Participating Preferred Stock, par value $0.001 per share, of which no shares have been issued and are outstanding as of the Capitalization Date. Tigris does not hold any shares of its capital stock in its treasury. All of the outstanding shares of Company Tigris Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Tigris Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii) none . None of the outstanding shares of Company Tigris Common Stock is subject to any right of first refusal in favor of Tigris, other than early exercise rights and rights of repurchases in favor of Tigris with respect to such early exercise rights. Except as contemplated herein and except as identified on Part 3.3(a)(i) of the Company; and (iii) Tigris Disclosure Schedule there is no Acquired Corporation Tigris 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 Tigris Common Stock. Upon consummation of the MergerTigris is not under any obligation, (A) the shares of Parent Common Stock issued in exchange for nor is bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Tigris Common StockStock or other securities. Part 3.3(a)(ii) of the Tigris Disclosure Schedule accurately and completely describes all repurchase rights held by Tigris with respect to shares of Tigris Common Stock (including shares issued pursuant to the exercise of stock options) and specifies which of those repurchase rights are currently exercisable.
(b) As of August 31Except for the Tigris Amended and Restated 2002 Stock Option Plan, 1998the Tigris Amended and Restated 2006 Equity Incentive Plan and the Tigris 2009 Employee Stock Purchase Plan (collectively, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding “Tigris Stock Plans”), or except as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") set forth on Part 2.3(b)(i3.3(b) of the Company Tigris Disclosure Schedule, Tigris does not have any stock option plan or any other plan, program, agreement or arrangement providing for any equity or equity-based compensation for any Person. Part 3.3(b) of the Tigris Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the aggregate number of shares of Company Common Stock subject to such Company Option; (iv) the Tigris Options outstanding and a weighted average exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent options. Tigris has made available to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent Potomac accurate and complete copies of all stock option plans pursuant to which the Company Tigris has ever granted stock options and options, the form forms of all stock option agreements evidencing such options. There are no commitments or agreements options and evidence of board and stockholder approval of any character to which of the Company is bound obligating the Company to accelerate the vesting of any Company OptionTigris Stock Plans and amendments thereto.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Except as identified on Part 2.3(c3.3(c) of the Company Tigris Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreementsSchedule, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the CompanyTigris or any of its Subsidiaries; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the CompanyTigris or any of its Subsidiaries; (iii) shareholder stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which the Company Tigris or any of its Subsidiaries is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the CompanyTigris or any of its Subsidiaries. There are no outstanding or authorized stock appreciation, phantom stock, profit participating or other similar rights with respect to Tigris.
(ed) All outstanding shares of Company Tigris Common StockStock and options, all outstanding Company Options, all outstanding Company Warrants warrants and all outstanding shares other securities of capital stock of each Subsidiary of the Company Tigris have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f. Except as identified on Part 3.3(c) All of the outstanding shares of Tigris Disclosure Schedule, there are no Warrants to purchase capital stock of each Tigris outstanding on the date of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrancesthis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (InterWest Partners IX, LP), Merger Agreement (Transcept Pharmaceuticals Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) of 50,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) 20,000 shares of preferred stock, $1.00 par value $0.01 per shareshare (“Company Preferred Stock”). As of June 30, 2012 (the “Capitalization Date”): (i) 6,509,749 shares of which Company Common Stock were issued and outstanding; (ii) no shares are outstanding as of Company Preferred Stock were issued or outstanding; (iii) 207,878 shares of Company Common Stock were held in the treasury of the date Company; and (iv) 1,014,876 shares of this AgreementCompany Common Stock were subject to issuance pursuant to outstanding stock options granted under the Option Plans (stock options granted by the Company pursuant to the Option Plans or otherwise are referred to collectively herein as “Company Options”). All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessablenon-assessable. As of the date of this Agreement, there There are 1,151,109 no shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) Company’s Subsidiaries. None of the outstanding shares of Company Common Stock is are entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock is right or subject to any right of first refusal in favor of the Company; Company and (iii) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for The Company is not under any shares of Company Common Stock that are subject to a obligation or bound by any Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, it may become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation obligated to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock. All Company Options have been granted pursuant to and in accordance with the terms and conditions of the Option Plans, applicable law and Nasdaq listing rules and regulations.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i3.4(b) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998the Capitalization Date: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iiiii) the number of shares of Company Common Stock subject to such Company Option; (iviii) the exercise price of such Company Option; (viv) the date on which such Company Option was granted; (v) whether such Company Option was issued under the Option Plans and whether such Company Option is a non-statutory option or an incentive stock option as defined in Section 422 of the Code; (vi) the applicable vesting schedule number of shares, if any, with respect to which such option has been exercised; and (vii) the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company OptionCapitalization Date.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(cSection 3.4(a) or 2.3(dSection 3.4(b) of the Company Disclosure Schedule above, there is noare: (i) no outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock of, or other securities of equity or voting interest in, the Company; (ii) no outstanding security, instrument or obligation that is or may become securities of the Company convertible into or exchangeable for any shares of the capital stock of, or other securities of equity or voting interest in, the Company; (iii) no outstanding options, warrants, restricted stock units, rights or other commitments or agreements to acquire from the Company, or that obligate the Company to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, the Company; (iv) no obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interest (including any voting debt) in, the Company (the items in clauses (i), (ii), (iii) and (iv), together with the capital stock of the Company, being referred to collectively as “Company Securities”); and (v) no other obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the Company Securities. Except as contemplated by Section 1.4 of this Agreement, there is no rights agreement, shareholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(ed) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants Options and all outstanding shares of capital stock of each Subsidiary other securities of the Company have been issued and granted in compliance with with: (i) all applicable securities laws Laws and other applicable Legal Requirements, Laws; and (ii) all requirements set forth in applicable ContractsContracts and the Option Plans. All Option Plans have been properly approved by the Company’s shareholders. All Company Options have been validly issued and properly approved by the Company Board and have been properly accounted for in accordance with GAAP on the consolidated audited financial statements of the Company and its Subsidiaries filed in or furnished with the Company SEC Documents. No Company Option has been granted with an exercise price lower than the fair market value of the underlying Company Common Stock on the date of the grant.
(fe) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are Company’s Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable non-assessable and free of preemptive rights, with no personal liability attaching to the ownership thereof, and are owned beneficially and of record by the Company or another wholly owned Subsidiary of the Company, free and clear of any Encumbrances, other than restrictions on transfer imposed by applicable securities Laws.
Appears in 2 contracts
Sources: Merger Agreement (Abc-Mart, Inc.), Merger Agreement (Abc-Mart, Inc.)
Capitalization, Etc. (a) The On the Closing Date, the authorized capital stock of the Company consists SFG will consist of: :
(i) twenty-five million (25,000,000) shares an unlimited number of Company Class A Common Stock, $.005 par value per shareshares, of which, as of August 31, 1998, 8,076,404 which 6,941,054.84 shares (which amount does not materially differ from the amount are issued and outstanding as outstanding;
(ii) an unlimited number of the date Class B Common shares, of this Agreementwhich 23,218,410 shares are issued and outstanding;
(iii) an unlimited number of Class X Common shares, of which no shares are issued and outstanding;
(iv) an unlimited number of Class A Preferred shares, of which no shares are issued and outstanding;
(v) an unlimited number of Class B Preferred shares, of which no shares are issued and outstanding;
(vi) an unlimited number of Class C Preferred shares, of which 18,019 have been issued and are outstanding, all of which are to be redeemed by SFG on Closing; and and
(iivii) five hundred thousand (500,000) shares an unlimited number of preferred stock, $1.00 par value per shareClass F Preferred shares, of which no shares 323,300 are outstanding as issued and outstanding, all of which are to be redeemed by SFG on Closing.
(viii) All of such Securities are registered in the names of the date Selling Securityholders in the amounts indicated on Part 3.3 of this Agreement. the Disclosure Schedule.
(b) All of the outstanding shares of Company Common Stock Securities (i) have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock is subject to were issued in compliance with any right of first refusal in favor of the Company; and applicable preemptive or similar rights, (iii) there is no Acquired Corporation Contract relating to have been issued in full compliance with all applicable securities laws and other applicable Legal Requirements and in compliance with all applicable SFG Contracts, and (iv) have been issued in compliance with 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. Upon consummation articles of the Mergerarticles of incorporation, (A) by-laws or other constating documents of SFG or the shares terms of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company shareholders' agreement or any other Person, become subject agreement to which SFG is a party or by which it is bound. The Selling Shareholders have delivered to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent Purchaser accurate and complete copies of all the stock option plans pursuant to which certificates evidencing the Company has ever granted stock options Shares and the form Option Holders have delivered to the Purchaser fully executed and complete copies of all stock the option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company OptionOptions.
(c) As All of the date of this Agreement, six hundred seventyShares are fully paid and non-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever grantedassessable.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) Part 2.3 of the Company Disclosure Schedule Schedules, there is no: :
(i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the any Company; ;
(ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the any Company; ;
(iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the any Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or or
(iv) condition or circumstance that may directly or indirectly give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the any Company.
(e) All outstanding shares Except as set forth in Part 2.3 of Company Common Stockthe Disclosure Schedule, all outstanding Company OptionsSFG has never repurchased, all outstanding Company Warrants and all outstanding redeemed or otherwise reacquired any shares of capital stock of each Subsidiary of the Company have been issued and granted or other securities. All securities so reacquired by SFG were reacquired in full compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) The information in Recital A is correct and accurate in all respects. Part 2.3 of the Disclosure Schedule lists the name and state or province of residence of each holder of Securities provided to the Company by such holder.
(g) Except as disclosed in Part 2.3 of the Disclosure Schedule, there are no pre-emptive rights or agreements, arrangements or understandings to issue pre-emptive rights with respect to the issuance or sale of Securities created by statute, the articles of incorporation or by-laws of the Company, or any agreement or other arrangement to which the Company is a party or to which it is bound and there are no agreements, arrangements or understandings to which the Company is a party (written or oral) pursuant to which the Company has the right to elect to satisfy any liability by issuing Securities.
(h) Part 2.3 of the Disclosure Schedule sets forth the holder of each Option, the number and type of securities issuable thereunder, and, if applicable, the exercise price therefor, the exercise period, the maximum term, and vesting schedule thereof (including a description of the circumstances under which such vesting schedule can or will be accelerated).
(i) All of the outstanding shares of capital stock of each Options were issued in compliance with all applicable federal, provincial and foreign securities laws. None of the Entities identified Options will vest on an accelerated basis in Part 2.1(a)(i) connection with the acquisition contemplated herein or any subsequent termination of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrancesholder's employment or service.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Titan Corp), Stock Purchase Agreement (Cayenta Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 75,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 32,751,356 shares (which amount does not materially differ from the amount including 170,420 shares of Company Restricted Stock) have been issued and are outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) 5,000,000 shares of preferred stockCompany Preferred Stock, $1.00 no par value per share, of which no shares have been issued or are outstanding as outstanding. The Company does not hold any shares of the date of this Agreementits capital stock in its treasury. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessablenon-assessable. As of the date of this Agreement, there There are 1,151,109 no shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any Subsidiary of the other Acquired Corporations.
(i) Company. None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii) none . None of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor of the Company; and (iii) there . There is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock. Part 3.3(a)(ii) of the Disclosure Schedule describes all repurchase rights held by the Company with respect to shares of Company Common Stock (whether such shares were issued pursuant to the exercise of Company Options or otherwise).
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) , 1,279,851 shares of Company Common Stock are subject to issuance pursuant to Company Options (whether granted and outstanding options to purchase Company Common Stock. (Stock options granted by under the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Option Plans or otherwise). Part 2.3(b)(i3.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998the date of this Agreement: (i) the particular Company Option Plan or non-plan arrangement pursuant to which such Company Option was granted, if applicable; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) whether the Company Option is intended to qualify as an “incentive stock option” under section 422 of the Code; (vii) the applicable vesting schedule schedule, and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (viiviii) the date on which such Company Option expires. 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 (the “Grant Date”) by all necessary corporate action, including, as applicable, approval by the board of directors of the Company (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, each such grant was made in accordance with the terms of the applicable compensation plan or arrangement of the Company and all other applicable Legal Requirements, the per share exercise price of each Company Option was equal to the fair market value of a share of Company Common Stock on the applicable Grant Date and each such grant was properly accounted for in accordance with generally accepted accounting principles in the United States in the financial statements (including the related notes) of the Company. The Company has delivered Made Available to Parent accurate and complete copies of all stock option and equity-based compensation plans pursuant to which any of the Company Acquired Corporations has ever granted stock options options, restricted stock, restricted stock units or other forms of equity-based compensation (whether payable in equity, cash or otherwise) currently outstanding or exercised since January 1, 2004, and the form forms of all stock option equity-based award agreements evidencing such options, restricted stock, restricted stock units or other forms of equity-based compensation (whether payable in equity, cash or otherwise). There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy170,420 shares of Company Restricted Stock have been issued or are outstanding. Part 3.3(b)(ii) of the Disclosure Schedule sets forth the following information with respect to each share of Company Restricted Stock outstanding as of the date of this Agreement: (A) the particular Company Option Plan or non-nine thousandplan arrangement pursuant to which such share of Company Restricted Stock was issued, seven hundred twenty-three if applicable; (679,723B) the name of the holder thereof; (C) the number of shares of Restricted Company Stock held by such holder; (D) the date on which such Company Restricted Stock was issued; and (E) the applicable vesting schedule, and the extent to which such Restricted Company Stock is vested as of the date of this Agreement. As of the date of this Agreement, Company Restricted Stock Units covering 10,050 shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants")outstanding. Part 2.3(c3.3(b)(iii) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant Restricted Stock Unit outstanding as of the date of this Agreement: (i1) the particular Company Option Plan or non-plan arrangement pursuant to which such Company Restricted Stock Unit was issued, if applicable; (2) the name of the warrant holderholder thereof; (ii3) the number of shares of Company Common Stock subject to covered under such outstanding Company WarrantRestricted Stock Unit held by such holder; (iii) the exercise price of such Company Warrant; (iv4) the date on which such Company Warrant Restricted Stock Unit was granted; and (v5) the applicable vesting schedule schedule, and the extent to which such Restricted Company Warrant Stock Unit is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(dc) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there There is no: (i) outstanding equity-based compensation award, subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; (ii) outstanding security, instrument or obligation that is or may (given the lapse of time or the satisfactions of conditions therein or otherwise) become convertible into or exchangeable for any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; (iii) shareholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which any of the Company Acquired Corporations is or may (given the lapse of time or the satisfaction of conditions therein or otherwise) become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide provides a reasonable basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of any of the CompanyAcquired Corporations.
(ed) All outstanding shares of Company Common Stock, all outstanding Company Optionsoptions, all outstanding Company Warrants equity-based compensation awards (whether payable in equity, cash or otherwise) and all outstanding shares of capital stock of each Subsidiary other securities of the Company Acquired Corporations have been issued and granted in compliance with with: (i) all applicable securities laws laws, the Code and all other applicable Legal Requirements, ; and (ii) all requirements set forth in applicable Contracts.
(fe) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are Company’s Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable non-assessable and free of preemptive rights and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 2 contracts
Sources: Merger Agreement (Applied Materials Inc /De), Merger Agreement (Applied Materials Inc /De)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 20,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 7,908,022 shares (which amount does not materially differ from the amount have been issued and are outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) 1,000,000 shares of preferred stockPreferred Stock, $1.00 .10 par value per share, of which no shares have been issued or are outstanding outstanding. Except as set forth in Part 3.3(a)(i) of the date Company Disclosure Schedule, the Company does not hold any shares of this Agreementits capital stock in its treasury. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there There are 1,151,109 no shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
. Except as set forth in Part 3.3(a)(ii) of the Company Disclosure Schedule: (i) None none of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (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) there is no Acquired Corporation 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement: (i) 0 shares of Company Common Stock are subject to issuance pursuant to stock options granted and outstanding options to purchase under the Company's Director Equity Compensation Plan; (ii) 350,500 shares of Company Common Stock. (Stock are subject to issuance pursuant to stock options granted by and outstanding under the Company's 1998 Stock Incentive Plan; (iii) 66,000 shares of Company Common Stock are subject to issuance pursuant to stock options granted and outstanding under the Company's 1986 Stock Option Plan; (iv) 92,000 shares of Company Common Stock are subject to issuance pursuant to stock options granted and outstanding under the Company's 1991 Stock Option Plan; and (v) 354,172 shares of Company Common Stock are reserved for future issuance pursuant to the Company's stock option plans are referred to in this Agreement as 2002 Employee Stock Purchase Plan (the "Company Options.ESPP") ). Part 2.3(b)(i3.3(b) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998the date of this Agreement: (i) the particular plan (if any) pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule schedule, and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; (vii) whether the vesting and/or exercisability of such Company Option shall accelerate in connection with the transactions contemplated by this Agreement; and (viiviii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which any of the Company Acquired Corporations has ever granted stock options options, and the form forms of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(dPart 3.3(b) of the Company Disclosure Schedule Schedule, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; (iii) shareholder stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which any of the Company Acquired Corporations is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of any of the CompanyAcquired Corporations.
(ed) All outstanding shares of Company Common Stock, all outstanding Company Optionsoptions, all outstanding Company Warrants warrants and all outstanding shares of capital stock of each Subsidiary other securities of the Company Acquired Corporations have been issued and granted in material compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(fe) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are Company's Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof, and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 2 contracts
Sources: Merger Agreement (Cubic Corp /De/), Merger Agreement (Ecc International Corp)
Capitalization, Etc. (a) The As of March 23, 2012, the authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 150,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 90,405,097 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) 15,000,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock (1,000,000 of which have been designated as Series A Junior Participating Preferred Stock), of which no shares have been issued or are outstanding outstanding. The Company holds 1,299,248 shares of its capital stock in its treasury as of the date of this Agreement. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As None of the date of this Agreement, there are 1,151,109 Opnext Corporations (other than the Company) holds any shares of Company Common Stock held in treasury by the Company and no or any rights to acquire shares of stock held in treasury by any of the other Acquired CorporationsCompany Common Stock.
(b) (i) None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right, except that the Company Restricted Stock is subject to forfeiture or a right of repurchase in favor of the Company; (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) except as set forth in Part 2.3(b)(iii) of the Company Disclosure Schedule, there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation Stock or any securities of any Significant Subsidiary of any of the MergerOpnext Corporations. None of the Opnext Corporations is under any obligation, (A) the shares of Parent Common Stock issued in exchange for or is bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common StockStock or other securities.
(bc) As of August 31March 23, 19982012, 957,725 1,000,000 shares of Company Preferred Stock, designated as Series A Junior Participating Preferred Stock, are reserved for future issuance upon exercise of the rights (which amount does not materially differ from the amount subject “Rights”) issued pursuant to options outstanding the Rights Agreement, dated as of June 18, 2009, between the date Company and American Stock Transfer & Trust Company, LLC (the “Company Rights Agreement”).
(d) As of this AgreementMarch 23, 2012: (i) 10,494,768 shares of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Options; (ii) 596,024 shares of Company Common Stock. Stock are reserved for future issuance pursuant to Company RSUs; (iii) 470,610 shares of Company Common Stock options are reserved for future settlement of Company SARS; and (iv) 15,264,369 shares of Company Common Stock are reserved for future issuance pursuant to equity awards not yet granted by under the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company OptionsEquity Plan."
(e) Part 2.3(b)(i2.3(e) of the Company Disclosure Schedule contains a complete and accurate list that sets forth the following information with respect to each Company Option Equity Award outstanding as of August 31, 1998the date of this Agreement the following information: (i) the particular plan (if any) pursuant to which such Company Option Equity Award was granted; (ii) the name of the optioneeholder of such Company Equity Award and the location of his/her residence; (iii) the number of shares of Company Common Stock subject to such Company OptionEquity Award; (iv) the per share exercise price (if any) of such Company OptionEquity Award; (v) the applicable vesting schedule, and the extent to which such Company Equity Award is vested and exercisable, if applicable; (vi) the date on which such Company Option Equity Award was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Equity Award expires; (viii) if such Company Equity Award is a Company Option, whether such Company Option expiresis intended to qualify as an “incentive stock option” (as defined in the Code) or a non-qualified stock option; (ix) if such Company Equity Award is in the form of Company RSU, the dates on which shares of Company Common Stock are scheduled to be delivered, if different from the applicable vesting schedule; and (x) if such Company Equity Award is a Company SAR, whether such Company SAR is to be settled in cash or in shares of Company Common Stock. The Company has delivered Made Available to Parent accurate and complete copies of all stock option equity plans pursuant to which any outstanding Company Equity Awards were granted by the Company has ever granted stock options Company, and the form forms of all stock option Company Equity Award agreements evidencing such optionsCompany Equity Awards. There are no commitments or agreements The exercise price per share of any character each Company Option is not less than the fair market value of a share of Company Common Stock as determined on the date of grant of such Company Option pursuant to the equity plan pursuant to which such Company Option was granted. All grants of Company Equity Awards were recorded on the Company’s financial statements (including, any related notes thereto) contained in the Company is bound obligating SEC Documents (as defined in Section 2.4(a)) in accordance with GAAP and, to the Company Knowledge of the Company, no such grants involved any “back dating” or similar practices with respect to accelerate the vesting effective date of any Company Optiongrant (whether intentionally or otherwise).
(cf) As Except as set forth in Sections 2.3(a), 2.3(c) or 2.3(d) or in Part 2.3(e) of the Company Disclosure Schedule, as of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of any of the CompanyOpnext Corporations; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the CompanyOpnext Corporations; (iii) shareholder outstanding or authorized stock appreciation rights, phantom stock, profit participation or similar rights or equity-based awards with respect to any of the Opnext Corporations; or (iv) stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which any of the Company Opnext Corporations is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(eg) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary options and other securities of the Company Opnext Corporations, have been issued and granted in compliance with in all material respects with: (i) all applicable securities laws and other applicable Legal Requirements, ; and (ii) all requirements set forth in applicable Contracts.
(fh) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are Company’s Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights. All of the outstanding shares and all other securities of each of the Company’s Subsidiaries are owned beneficially and of record by the CompanyCompany (except with respect to those Company Subsidiaries organized under the laws of foreign jurisdictions where shares of capital stock are required under applicable Legal Requirements to be held by one or more directors, employees or agents of such Subsidiary, in each case as disclosed in Part 2.3(h) of the Company Disclosure Schedule), free and clear of any EncumbrancesEncumbrances (other than restrictions on transfer imposed by applicable securities laws).
Appears in 2 contracts
Sources: Merger Agreement (Opnext Inc), Merger Agreement (Oclaro, Inc.)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 200,000,000 shares of Company Common Stock, $.005 par value per share, of which, as which (A) 26,266,494 shares of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount Company Common Stock had been issued and were outstanding as of March 16, 2012 (the date “Capitalization Date”) and (B) 672,608 shares of this Agreement) have been issued and are outstandingCompany Common Stock were held by the Company in its treasury as of the Capitalization Date; and (ii) five hundred thousand (500,000) 10,000,000 shares of preferred stockCompany Preferred Stock, $1.00 par value per share, of which 500,000 shares have been designated as Series A Junior Participating Preferred Stock and of which no shares are outstanding or are held by the Company in its treasury.
(b) As of the Capitalization Date: (i) 74,396 shares of Company Common Stock are subject to issuance pursuant to outstanding Company Options; (ii) 787,177 shares of Company Common Stock are subject to issuance pursuant to outstanding Company RSUs; (iii) 1,335,905 shares of Company Common Stock are reserved for future issuance pursuant to the Company Equity Plans; (iv) 283,298 shares of Company Common Stock are reserved for future issuance pursuant to the Company ESPP; and (v) 500,000 shares of Company Preferred Stock are reserved for future issuance pursuant to the Amended and Restated Rights Agreement between the Company and American Stock Transfer & Trust Company, LLC, dated as of August 3, 2009, as amended (the date “Rights Agreement”). The Company has delivered or made available to Parent or its counsel copies of this Agreement. the Company ESPP, the Company Equity Plans and the forms of stock option and restricted stock unit agreements evidencing the Company Options and Company RSUs.
(c) All of the issued and outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessablenonassessable and free of preemptive rights. As Except for options, rights, securities, agreements, instruments, obligations and plans referred to in Section 2.3(b), including the Rights under, and as such term is defined in, the Rights Agreement, as of the date of this Agreement, except for changes since the close of business on the Capitalization Date resulting from the exercise of Company Options, there are 1,151,109 no shares of Company Common Stock held in treasury by capital stock or other voting securities or equity interests of the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (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) there is no Acquired Corporation 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other equity securities of the Company or any Subsidiary of the Company; (ii) stock appreciation right, redemption right, repurchase right, “phantom” stock right, performance units, interest in or right to the ownership or earnings of the Company or any of its Subsidiaries or other equity equivalent or equity-based awards or rights; (iii) outstanding security, instrument or obligation of the Company or any Subsidiary of the Company that is or may become convertible into or exchangeable for any shares of the capital stock or other securities equity security of the Company or any Subsidiary of the Company; or (iiiiv) shareholder stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other equity securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(ed) All outstanding shares Section 2.3(d) of the Company Common Stock, all outstanding Company Options, all outstanding Company Warrants Disclosure Schedule sets forth a true and all outstanding shares of capital stock complete list of each Subsidiary of the Company, including its jurisdiction of formation. Except for the capital stock of, or other equity or voting interests in, its Subsidiaries, the Company have been issued and granted does not own, directly or indirectly, any equity, membership interest, partnership interest, joint venture interest or other equity or voting interest in, or any interest convertible into, exercisable or exchangeable for any of the foregoing, nor is it or any of its Subsidiaries under any obligation to form or participate in, provide funds to or make any loan, capital contribution, guarantee, credit enhancement or other investment in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) any Person. All of the outstanding shares of capital stock or other equity interests of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are Company’s Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights, and are wholly owned beneficially and of record by the Company or a Subsidiary of the Company, free and clear of any Encumbrancesencumbrances.
(e) 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.
Appears in 2 contracts
Sources: Merger Agreement (Zayo Group LLC), Merger Agreement (Abovenet Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) of 600,000 shares of Company Common Stock, $.005 200,000 shares of Voting Preferred Stock, no par value per sharevalue, and 200,000 shares of whichPreferred Stock, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued and outstanding as no par value. As of the date of this Agreement) have been , 114,504 shares of Company Common Stock, no shares of the Company’s Voting Preferred Stock and no shares of the Company’s Preferred Stock are issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of the date of this Agreement. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. The shareholder register provided to Parent by the Company accurately reflects the registered holders of the Company Common Stock and the number of shares of Company Common Stock registered in the name of each such holder as of October 25, 2013.
(b) As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None outstanding options, warrants, stock options or rights to acquire from the Company any shares of the outstanding shares of Company Common Stock is entitled capital stock or subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor other equity securities of the Company; and or (iiiii) there is no Acquired Corporation Contract relating to outstanding securities of 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), Company that are convertible into any shares of Company Common Stock. Upon consummation capital stock or other equity securities of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) All of the issued and outstanding capital stock of each Company Subsidiary has been duly authorized and validly issued, are fully paid and non-assessable. The Company owns directly all of the issued and outstanding capital stock of each Company Subsidiary. As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock there are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: no (i) outstanding subscriptionoptions, optionwarrants, call, warrant stock options or right (whether or not currently exercisable) rights to acquire from any Company Subsidiary any shares of the capital stock or other equity securities of the Companysuch Company Subsidiary; or (ii) outstanding security, instrument or obligation securities of any Company Subsidiary that is or may become are convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other equity securities of the Companysuch Company Subsidiary.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 2 contracts
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 100,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 15,371,121 shares (which amount does not materially differ from the amount were issued and outstanding as of the date of this Agreement; (ii) have been one (1) share of Company Class B Common Stock, which is not issued and are or outstanding; and (iiiii) five hundred thousand (500,000) 10,000,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no shares are outstanding as issued or outstanding. As of the date of this Agreement. , (1) 1,384,576 shares of Company Common Stock are subject to issuance pursuant to outstanding Company Options, (2) 2,241,688 shares of Company Common Stock are subject to issuance pursuant to outstanding Company Warrants, and (3) the Company does not hold any shares of Company Common Stock in its treasury.
(b) All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock is entitled or subject to to, or was issued in violation of, any preemptive right, right of participation, right of maintenance or any similar right; (ii) none . None of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor of the Company; and (iii) . To the knowledge of the Company, there is no Acquired Corporation Company Contract currently in effect 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of The Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies is not under any such Contract. None of the Acquired Corporations obligation, nor is under it bound by any obligation Contract to repurchaseacquire, redeem or otherwise acquire any outstanding shares of Company Common StockStock or other securities, except for the Company’s right to acquire restricted shares of Company Common Stock held by a Company Employee upon termination of such Company Employee’s employment.
(bc) As Except for (i) the outstanding Company Options described in Section 2.2(a)(1) above and as set forth in Schedule 2.2(c)-1 of August 31the Company Disclosure Schedule and (ii) the outstanding Company Warrants described in Section 2.2(a)(2) above and set forth in Schedule 2.2(c)-2 of the Company Disclosure Schedule, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (iA) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) pursuant to a Contract to which the Company or any of its Subsidiaries is a party to acquire any shares of the capital stock or other securities of the CompanyCompany or any of its Subsidiaries; (iiB) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the CompanyCompany or any of its Subsidiaries; or (iiiC) shareholder stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which the Company or any of its Subsidiaries is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(ed) All outstanding shares Each share of Company Common Stock, all Stock outstanding immediately prior to the Effective Time that is restricted and not fully vested under any applicable restricted stock agreement or other Contract with the Company Options, all outstanding Company Warrants will become fully vested and all outstanding shares of capital stock of each Subsidiary unrestricted as of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable ContractsEffective Time.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 2 contracts
Sources: Merger Agreement (LEO Pharma a/S), Merger Agreement (Peplin Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company Pubco consists of: (i) twenty-five million (25,000,000) 150,000,000 shares of Company Pubco Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 250,000 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) 10,000,000 shares of preferred stock, $1.00 par value per sharePubco Preferred Stock, of which no 5,000,000 have been designated as Pubco Series A Preferred Stock, and none of which shares have been issued and are outstanding as of the date of this Agreementoutstanding. All of the outstanding shares of Company Common Stock Pubco capital stock have been duly authorized and validly issued, issued and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None All of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii) none Pubco capital stock and all of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor of the Company; and (iii) there is no Acquired Corporation Contract relating to the voting subscriptions, options, calls, warrants 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the Pubco capital stock or other securities of Pubco have been issued in compliance with all applicable federal and state securities laws and other applicable Legal Requirements and all requirements set forth in the CompanyPubco Documents and Pubco Contracts, and are owned, beneficially and of record, by R▇▇▇▇ ▇▇▇▇▇. No shares of Pubco capital stock are subject to a repurchase option in favor of Pubco, and Pubco has never repurchased, redeemed or otherwise reacquired any shares of Pubco capital stock or other securities of Pubco.
(b) Except as set forth on Schedule 4.3(b) of the Pubco Disclosure Schedule, there are no: (i) outstanding subscriptions, options, calls, warrants or rights (whether or not currently exercisable) to acquire any shares of Pubco capital stock or other securities of Pubco; (ii) outstanding securitysecurities, instrument notes, instruments or obligation obligations that is are or may become convertible into or exchangeable for any shares of the Pubco capital stock or other securities of the CompanyPubco; (iii) shareholder rights plan (outstanding or authorized stock appreciation, phantom stock or similar plan commonly referred rights with respect to as a "poison pill"the capital stock of Pubco; (iv) or Contract Contracts (other than this Agreement) under which the Company Pubco is or may become obligated to sell sell, transfer, exchange or otherwise issue any shares of its Pubco capital stock or any other securitiessecurities of Pubco; (v) agreements, voting trusts, proxies or understandings with respect to the voting, or registration under the Securities Act, of any shares of Pubco; or (ivvi) condition conditions or circumstance circumstances that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of Pubco capital stock or other securities of the CompanyPubco.
(ec) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(iSchedule 4.3(c) of the Company Pubco Disclosure Schedule are validly issued, fully paid sets forth a complete and nonassessable accurate list of all of the stock option plans and are owned beneficially and other stock or equity related plans of record by the Company, free and clear of any EncumbrancesPubco.
Appears in 2 contracts
Sources: Contribution Agreement (Tenby Pharma Inc), Contribution Agreement (Vogel Roger)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share100,000,000 Shares, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) 45,690,547 Shares have been issued and are outstandingoutstanding as of the close of business on October 7, 2021; and (ii) five hundred thousand (500,000) 5,000,000 shares of the Company’s preferred stock, $1.00 0.001 par value per share, of which no shares have been issued or are outstanding as of the date of this Agreementoutstanding. All of the outstanding shares of Company Common Stock Shares have been duly authorized and validly issued, issued and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock is Shares are entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock Shares is subject to any right of first refusal in favor of the Company; and (iii) there are no outstanding bonds, debentures, notes or other Indebtedness of the Company having a right to vote on any matters on which the stockholders of the Company have a right to vote; and (iv) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Shares. The Company Common Stock. Upon consummation of the Mergeris not under any obligation, (A) the shares of Parent Common Stock issued in exchange for nor is it bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Shares or other securities. The Company Common Stock are subject to issuance pursuant to constitutes the only outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) class of securities of the Company Disclosure Schedule sets forth or any of its Subsidiaries registered under the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company OptionSecurities Act.
(c) As of the date close of this Agreementbusiness on October 7, six hundred seventy-nine thousand, seven hundred twenty-three 2021: (679,723i) shares of Company Common Stock 7,415,095 Shares are subject to issuance pursuant to Company Stock Awards granted and outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of under the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; Equity Plans and (ii) 5,543,480 Shares are reserved for future issuance under the number of shares of Company Common Stock subject to such Equity Plans and under the Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expiresESPP Plan. The Company has delivered or made available to Parent accurate and complete or Parent’s Representatives copies of the Company Equity Plans covering the Company Stock Awards outstanding as of the Agreement Date and the forms of all agreementsagreements evidencing such Company Stock Awards Other than as set forth in this Section 4.4(c), certificates there is no issued, reserved for issuance, outstanding or authorized stock option, restricted stock unit award, stock appreciation, phantom stock, profit participation or similar rights or equity-based awards with respect to the Company. Each Company Stock Award was granted with an exercise price or initial per share price equal to or greater than the fair market value of the underlying Shares on the date of grant and other documents evidencing all warrants has a grant date identical to the date on which the Company has ever grantedBoard or compensation committee of the Company Board actually awarded the Company Stock Award. Each Company Stock Award qualifies for the tax and accounting treatment afforded to such Company Stock Award in the Company’s tax returns and the Company’s financial statements, respectively.
(d) Except as set forth in Parts 2.3(b)this Section 4.4, 2.3(c) or 2.3(d) as of the Company Disclosure Schedule close of business on the Business Day immediately preceding the Agreement Date, there is are no: (i) outstanding subscriptionshares of capital stock, optionor other equity interest in, callthe Company or any of its Subsidiaries; (ii) outstanding subscriptions, warrant options, calls, warrants or right rights (whether or not currently exercisable) to acquire any shares of capital stock, restricted stock units, stock-based performance units or any other rights that are linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock or other securities of the CompanyCompany or any of its Subsidiaries; (iiiii) outstanding securitysecurities, instrument instruments, bonds, debentures, notes or obligation obligations that is are or may become convertible into or exchangeable for any shares of the capital stock or other securities of the CompanyCompany or any of its Subsidiaries; or (iiiiv) shareholder stockholder rights plan plans (or similar plan commonly referred to as a "“poison pill"”) or Contract Contracts under which the Company or any of its Subsidiaries is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All of the outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of or other voting securities of, or ownership interests in, each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirementsis owned by the Company, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issueddirectly or indirectly, fully paid and nonassessable and are owned beneficially and of record by the Companyrecord, free and clear of any Encumbrancesall Encumbrances and transfer restrictions, except for such Encumbrances and transfer restrictions of general applicability as may be provided under the Securities Act or other applicable securities laws.
Appears in 2 contracts
Sources: Merger Agreement (Supernus Pharmaceuticals, Inc.), Merger Agreement (Adamas Pharmaceuticals Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 100,000,000 shares of Company Common Stock; and (ii) 10,000,000 shares of Preferred Stock, $.005 par value $.001 per share, of which, as . As of August 3124, 19982000, 8,076,404 33,109,850 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) Company Common Stock have been issued and are outstanding; outstanding and (ii) five hundred thousand (500,000) no shares of preferred stock, $1.00 par value per share, the Company's Preferred Stock have been issued or are outstanding. No shares of which no shares are outstanding as capital stock of the date of this AgreementCompany are held in the Company's treasury. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there There are 1,151,109 no shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) Company's Subsidiaries. None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock is right or subject to any right of first refusal in favor of the Company; Company and (iii) there is no Acquired Corporation 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 3124, 1998, 957,725 2000: (i) 931,137 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to stock options granted and outstanding options to purchase under the Company's 1993 Stock Plan; (ii) 5,621,826 shares of Company Common StockStock are subject to issuance pursuant to stock options granted and outstanding under the Company's 1997 Stock Plan; (iii) 130,000 shares of Company Common Stock are subject to issuance pursuant to stock options granted and outstanding under the Company's Director Option Plan; and (iv) 577,664 shares of Company Common Stock are reserved for future issuance pursuant to the Company's 1997 Employee Stock Purchase Plan (the "Company ESPP"), 52,670 of which are subject to issuance pursuant to stock options granted and outstanding under the Company ESPP. (Stock options granted by the Company pursuant to the Company's stock option plans 1993 Stock Plan, the 1997 Stock Plan and the 1997 Director Stock Plan are referred to in this Agreement collectively herein as "Company Options.") Part 2.3(b)(i2.3(b) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998the date of this Agreement: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options Company Options, and the form forms of all stock option agreements evidencing such options. There are no commitments options to the extent such plans or agreements of any character have not been filed as exhibits to which the Company is bound obligating the Company to accelerate the vesting of any Company OptionSEC Documents (as defined in Section 2.4(a)).
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts Sections 2.3(a) or 2.3(b), 2.3(c) or 2.3(d) as of the Company Disclosure Schedule date hereof there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; (iii) shareholder rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which any of the Company Acquired Corporations is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of any of the CompanyAcquired Corporations.
(ed) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants Options and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) . All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule Company's Subsidiaries have been duly authorized and are validly issued, are fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 2 contracts
Sources: Merger Agreement (Applied Micro Circuits Corp), Agreement and Plan of Merger and Reorganization (Applied Micro Circuits Corp)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 100,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 50,320,366 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstandingoutstanding as of the close of business on the Reference Date; and (ii) five hundred thousand (500,000) 10,000,000 shares of the Company’s preferred stock, $1.00 0.001 par value per share, of which no shares have been issued or are outstanding as of the date of this Agreementoutstanding. All of the outstanding shares of Company Common Stock Shares have been duly authorized and validly issued, issued and are fully paid and nonassessable. As Section 4.4(a) of the date Company Disclosure Schedule sets forth the authorized and outstanding capital stock (or other equity interests) of this Agreement, there are 1,151,109 shares of Company Common Stock each Subsidiary held in treasury directly or indirectly by the Company and no shares the total of such outstanding capital stock held in treasury by any of the (or other Acquired Corporationsequity interests).
(i) None of the outstanding shares of Company Common Stock is Shares are entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock Shares is subject to any right of first refusal in favor of the Company; and (iii) there are no outstanding bonds, debentures, notes or other Indebtedness of any Acquired Company having a right to vote on any matters on which the stockholders of the Company have a right to vote; and (iv) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Shares. Other than with respect to the Company Common Stock. Upon consummation of Convertible Notes, the MergerCompany is not under any obligation, (A) the shares of Parent Common Stock issued in exchange for nor is it bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Shares or other securities. The Company Common Stock are subject to issuance pursuant to constitutes the only outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) class of securities of the Company Disclosure Schedule sets forth Acquired Companies registered under the following information Securities Act. Other than the Support Agreements, there are no Contracts (including any voting trusts) with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements voting of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company OptionShares.
(c) As of the date close of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three business on the Reference Date: (679,723i) shares of Company Common Stock 4,298,103 Shares are subject to issuance pursuant to outstanding warrants Company Options; (ii) 1,976,567 Shares are subject to or otherwise deliverable in connection with outstanding time-vested Company RSUs; (iii) 238,325 Shares are subject to or otherwise deliverable in connection with outstanding performance-based Company RSUs, assuming a target level of performance under such performance-based Company RSUs; (iv) 108,062 Shares are estimated to be subject to outstanding purchase rights under the Company Common Stock ESPP ("based on the fair market value (within the meaning of the Company Warrants"ESPP) of a Share on the Reference Date); (v) 4,725,955 Shares are reserved for future issuance under the Company Equity Plan; (vi) 1,717,900 Shares are reserved for future issuance under the Company ESPP, and (vii) 7,514,937 Shares are reserved for future issuance upon conversion of the Company Convertible Notes. Part 2.3(cSection 4.4(c) of the Company Disclosure Schedule sets forth contains a true, correct and complete list, as of the following information with respect close of business on the Reference Date, of (A) the name of each holder of Company Options or Company RSUs, (B) the number of Shares subject to each such outstanding Company Warrant Option and Company RSU, (C) the vesting schedule of each such Company Option and Company RSU, (D) the grant date of each such Company Option and Company RSU, and (E) the per share exercise price and expiration date of each such Company Option. The Company has delivered or made available to Parent or Parent’s Representatives copies of the Company Equity Plan and Company Prior Plan covering the Company Stock Awards outstanding as of the date Agreement Date and the forms of this Agreement: (i) the name all agreements evidencing such Company Stock Awards. Each Company Stock Award that is outstanding as of the warrant holder; Agreement Date has been made in accordance with applicable Law and the Company Equity Plan and Company Prior Plan, as applicable, in each case, in all material respects. Other than as set forth in this Section 4.4(c) and Section 4.4(b), there is no issued, reserved for issuance, outstanding or authorized stock option, restricted stock unit award, stock appreciation, phantom stock, profit participation or similar rights or equity-based awards with respect to the Acquired Companies.
(iid) As of the number close of business on the Reference Date, there was $201,250,000 aggregate principal amount of the Company Convertible Notes. As of the close of business on the Reference Date, assuming that the Closing had taken place on such date (and for hypothetical purposes assuming that the trading price of the Shares during the five (5) trading days prior to the Closing is equal to $6.11 per Share on each such trading day), the Conversion Rate (as defined in the Indenture) for the Company Convertible Notes would have been equal to 37.3413 shares of Company Common Stock subject per $1,000 of outstanding principal amount. Other than the Transactions, there has been no event, condition or development that has resulted in an adjustment to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which Conversion Rate under the Company has ever grantedConvertible Notes.
(de) Except for shares of Company Common Stock reserved for future issuance under the Company ESPP, the outstanding purchase rights under the Company ESPP or as set forth in Parts 2.3(b), 2.3(c) or 2.3(dSection 4.4(e) of the Company Disclosure Schedule Schedule, as of the Reference Date, there is no: are no (i) outstanding subscriptionshares of capital stock, optionor other equity interest in, callany Acquired Company, warrant (ii) outstanding subscriptions, options, calls, warrants, rights or right obligations (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, stock-based performance unit or any other rights or obligations that are linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock of, ordinary shares of, other equity interests in or other securities of the any Acquired Company; and (iiiii) other than with respect to the Company Convertible Notes, outstanding securitysecurities, instrument instruments, bonds, debentures, notes or obligation obligations that is are or may become convertible into or exchangeable for any shares of the capital stock of, ordinary shares of, other equity interests in or other securities of the any Acquired Company; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of or other voting securities of, or ownership interests in, each of the Entities identified in Part 2.1(a)(i) Subsidiary of the Company Disclosure Schedule are has been duly authorized, validly issued, is fully paid and nonassessable nonassessable, was issued in accordance with applicable Law, is not subject to or issued in violation of any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance, right of first refusal or any similar right, and are is owned by the Company, directly or indirectly, beneficially and of record by the Companyrecord, free and clear of all Encumbrances and any Encumbrancesother restriction (including any restriction on the right to vote, sell or otherwise dispose of such capital stock or other voting securities or ownership interests), except for such Encumbrances and restrictions of general applicability as may be provided under the Securities Act or other applicable securities laws.
Appears in 2 contracts
Sources: Merger Agreement (Flexion Therapeutics Inc), Merger Agreement (Pacira BioSciences, Inc.)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) of 60,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 17,301,654 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of the date of this Agreement. Except as set forth in Part 2.3(a)(i) of the Disclosure Schedule, the Company does not hold any shares of its capital stock in its treasury. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there There are 1,151,109 no shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
. Except as set forth in Part 2.3(a)(ii) of the Disclosure Schedule: (i) None none of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (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) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Company Common StockStock or other securities. Part 2.3(a)(iii) of the Disclosure Schedule accurately and completely describes all repurchase rights held by the Company with respect to shares of Company Common Stock (including shares issued pursuant to the exercise of stock options), and specifies which of those repurchase rights are currently exercisable.
(b) As of August 31the close of business on December 3, 1998, 957,725 2009: (i) 160,708 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to stock options granted and outstanding options to purchase under the Company’s 2002 Omnibus Stock Incentive Plan (the “2002 Plan”); (ii) 1,378,276 shares of Company Common Stock. (Stock are subject to issuance pursuant to stock options granted by and outstanding under the Company’s 2004 Omnibus Stock Incentive Plan (the “2004 Plan”); and (iii) 923,228 shares of Company Common Stock are reserved for future issuance pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") ’s 2004 Employee Stock Purchase Plan (the “ESPP”). Part 2.3(b)(i2.3(b) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998the date of this Agreement: (iA) the particular plan Company Stock Plan pursuant to which such Company Option was granted; (iiB) the name of the optionee; (iiiC) the number of shares of Company Common Stock subject to such Company Option; (ivD) the exercise price of such Company Option; (vE) the date on which such Company Option was granted; (viF) the applicable vesting schedule schedule, and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (viiG) the date on which such Company Option expires; and (H) whether such Company Option is an “incentive stock option” (as defined in the Code) or a non-qualified stock option. The Company has delivered made available to Parent accurate and complete copies of all stock option plans pursuant to which any of the Company Acquired Corporations has ever granted stock options which are outstanding as of the date of this Agreement, and the form forms of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts Part 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule Schedule, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; (iii) shareholder stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which any of the Company Acquired Corporations is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of any of the CompanyAcquired Corporations.
(ed) All outstanding shares of Company Common Stock, all outstanding Company Optionsoptions, all outstanding Company Warrants warrants and all outstanding shares of capital stock of each Subsidiary other securities of the Company Acquired Corporations have been issued and granted in material compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(fe) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are Company’s Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof, and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 2 contracts
Sources: Merger Agreement (Ixys Corp /De/), Merger Agreement (Zilog Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 300,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 144,904,648 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstandingoutstanding as of July 18, 2008; and (ii) five hundred thousand (500,000) 5,000,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no shares have been issued or are outstanding outstanding. Except as set forth in Part 2.3(a)(i) of the date Disclosure Schedule, the Company does not hold any shares of this Agreementits capital stock in its treasury. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there There are 1,151,109 no shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
. Except as set forth in Part 2.3(a)(ii) of the Disclosure Schedule: (iA) None none of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (iiB) none of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor of the Companyany Acquired Corporation; and (iiiC) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Company Common StockStock or other securities.
(b) As of August 31July 18, 1998, 957,725 2008: (i) 31,003,590 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Options; (ii) 5,465,967 shares of Company Common Stock. (Stock options granted by the Company are reserved for future issuance pursuant to the Company's stock option plans Company ESPP; (iii) 2,231,000 shares of Company Common Stock are referred reserved for future issuance pursuant to in this Agreement as "Company Options."Stock-Based Awards; and (iv) Part 2.3(b)(i) 13,830,646 shares of Company Common Stock are reserved for future issuance pursuant to equity awards not yet granted under the Company Disclosure Schedule Equity Plans. The Company has Made Available to Parent a complete and accurate list that sets forth the following information with respect to each Company Option Equity Award outstanding as of August 31July 9, 19982008 the following information: (iA) the particular plan (if any) pursuant to which such Company Option Equity Award was granted; (iiB) the name of the optioneeholder of such Company Equity Award; (iiiC) the number of shares of Company Common Stock subject to such Company OptionEquity Award; (ivD) the per share exercise price (if any) of such Company OptionEquity Award; (vE) the date on which such Company Option Equity Award was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (viiF) the date on which such Company Equity Award expires; (G) if such Company Equity Award is a Company Option, whether such Company Option expires. The is an “incentive stock option” (as defined in the Code) or a non-qualified stock option; (H) if such Company has delivered to Parent accurate Equity Award is a Company Stock-Based Award, whether such Company Stock-Based Award is a restricted stock unit or a restricted stock award; and complete copies of all stock option plans pursuant to which the (I) if such Company has ever granted stock options and Equity Award is a Company Stock-Based Award in the form of all restricted stock option agreements evidencing such options. There are no commitments or agreements of any character to units, the dates on which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject scheduled to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) be delivered, if different from the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.vesting
Appears in 2 contracts
Sources: Merger Agreement (Foundry Networks Inc), Merger Agreement (Foundry Networks Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 235,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 0.001 par value per share, of which no 104,801,264 shares are issued and 101,535,580 shares are outstanding as of the date close of this Agreementbusiness on the Reference Date; and (ii) 5,000,000 shares of the Company’s preferred stock, $0.001 par value per share (the “Company Preferred Stock”), consisting of (A) 2,709,300 shares of Series A Non-Voting Convertible Preferred Stock, none of which are outstanding as of the close of business on the Reference Date, (B) 5,000 shares of Series B Convertible Preferred Stock, par value $0.001 per share, none of which are outstanding as of the closing of business on the Reference Date and (C) 2,285,700 undesignated and unissued shares of Company Preferred Stock. All of the outstanding shares of Company Common Stock Shares have been duly authorized and validly issued, issued and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock is Shares are entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock Shares is subject to any right of first refusal in favor of the Company; and (iii) there are no outstanding bonds, debentures, notes or other Indebtedness of any Acquired Company having a right to vote on any matters on which the stockholders of the Company have a right to vote; and (iv) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Shares. The Company Common Stock. Upon consummation of the Mergeris not under any obligation, (A) the shares of Parent Common Stock issued in exchange for nor is it bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Shares or other securities. The Company Common Stock are subject to issuance pursuant to constitutes the only outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) class of securities of the Company Disclosure Schedule sets forth Acquired Companies registered under the following information Securities Act. Other than the Support Agreements, there are no Contracts (including any voting trusts) with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements voting of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company OptionShares.
(c) As of the date close of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three business on the Reference Date: (679,723i) shares of Company Common Stock 14,230,910 Shares are subject to issuance pursuant to outstanding warrants Company Options; (ii) 1,223,900 Shares are subject to purchase or otherwise deliverable in connection with outstanding time-vested Company Common Stock RSUs; ("iii) 0 Shares are subject to or otherwise deliverable in connection with outstanding performance-based Company RSUs, assuming a target level of performance under such performance-based Company RSUs; (iv) 2,255,934 Shares are reserved for future issuance under the Company Equity Plan; and (v) 2,051,033 Shares are reserved for future issuance upon exercise of the Company Warrants"). Part 2.3(cSection 4.4(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding contains a true, correct and complete list, as of the date close of this Agreement: business on the Reference Date, of (iA) the name of the warrant holder; each holder of Company Options, Company RSUs or Company Warrants, (iiB) the number of shares of Company Common Stock Shares subject to each such outstanding Company Option, Company RSU or Company Warrant, (C) the vesting schedule of each such Company Warrant; Option and Company RSU, (iiiD) the grant date of each such Company Option and Company RSU, and (E) the per share exercise price and expiration date of each such Company Option and Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered or made available to Parent accurate and complete or Parent’s Representatives copies of all agreements, certificates and other documents evidencing all warrants which the Company Equity Plan covering the Company Stock Awards outstanding as of the Agreement Date, the forms of all agreements evidencing such Company Stock Awards, and each Contract governing the terms of each outstanding Company Warrant. Each Company Stock Award that is outstanding as of the Agreement Date has ever grantedbeen made in accordance with applicable Law and the Company Equity Plan, in each case, in all material respects. Other than as set forth in this Section 4.4(c) and Section 4.4(b), there is no issued, reserved for issuance, outstanding or authorized stock option, restricted stock unit award, stock appreciation, phantom stock, profit participation or similar rights or equity-based awards with respect to the Acquired Companies.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(dSection 4.4(d) of the Company Disclosure Schedule Schedule, as of the Reference Date, there is no: are no (i) outstanding subscriptionshares of capital stock, optionor other equity interest in, callany Acquired Company, warrant (ii) outstanding subscriptions, options, calls, warrants, rights or right obligations (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, stock-based performance unit or any other rights or obligations that are linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock of, ordinary shares of, other equity interests in or other securities of the any Acquired Company; and (iiiii) outstanding securitysecurities, instrument instruments, bonds, debentures, notes or obligation obligations that is are or may become convertible into or exchangeable for any shares of the capital stock of, ordinary shares of, other equity interests in or other securities of the any Acquired Company; (iii) shareholder . There is no stockholder rights plan (or similar plan commonly referred to as a "plan, “poison pill") ,” anti-takeover plan or Contract under other similar device in effect to which the Company is a party or may become obligated to sell or by which it is otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Companybound.
(e) All of the outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of or other voting securities of, or ownership interests in, each Subsidiary of the Company have has been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirementsduly authorized, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, is fully paid and nonassessable nonassessable, was issued in accordance with applicable Law, is not subject to or issued in violation of any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance, right of first refusal or any similar right, and are is owned by the Company, directly or indirectly, beneficially and of record by the Companyrecord, free and clear of all Encumbrances and any Encumbrancesother restriction (including any restriction on the right to vote, sell or otherwise dispose of such capital stock or other voting securities or ownership interests), except for such Encumbrances and restrictions of general applicability as may be provided under the Securities Act or other applicable securities laws.
Appears in 2 contracts
Sources: Merger Agreement (Biodelivery Sciences International Inc), Merger Agreement (Collegium Pharmaceutical, Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share200,000,000 Shares, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount 57,364,623 Shares had been issued and were outstanding as of the date close of this Agreement) have been issued and are outstanding; business on August 24, 2017 and (ii) five hundred thousand (500,000) 10,000,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no shares are outstanding as of the date of this Agreementoutstanding. All of the outstanding shares Shares and the outstanding equity interests of Company Common Stock the Company’s Subsidiaries have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares equity interests of the Company Common Stock is or any other Acquired Companies are entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) none there are no outstanding bonds, debentures, notes or other indebtedness of the Company or any other Acquired Company having a right to vote on any matters on which the holders of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor equity interests of the CompanyCompany or any other Acquired Companies have a right to vote, as applicable; and (iii) there is no Contract to which any Acquired Corporation Contract Company is bound relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation equity interests of the MergerAcquired Companies. No Acquired Company is under any obligation, (A) the shares of Parent Common Stock issued in exchange for or bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as equity interests of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company OptionAcquired Companies.
(c) As of the date close of this Agreementbusiness on August 24, six hundred seventy-nine thousand, seven hundred twenty-three 2017: (679,723i) shares of Company Common Stock are 8,731,405 Shares were subject to issuance pursuant to Company Options granted and outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of under the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; Equity Plan, (ii) the number of shares of Company Common Stock 1,755,424 Shares were subject to such issuance pursuant to Company Warrant; Restricted Stock Units granted and outstanding under the Company Equity Plan, (iii) the exercise price of such 86,850 Shares were subject to issuance pursuant to Company WarrantWarrants; (iv) the date on which such 221,674 Shares were reserved for future issuance under Company Warrant was granted; Equity Plan and (v) 1,611,041 Shares were reserved for future issuance under the applicable vesting schedule and Company ESPP. As of the extent to which such close of business on August 24, 2017, the weighted average exercise price of the Company Warrant is vested and exercisable Options outstanding as of the that date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.was $42.74
(d) Except as set forth in Parts 2.3(bthis Section 3.3 and except for the Company Options, Company Restricted Stock Units and Company Warrants outstanding as of the date of this Agreement (and Shares issuable upon the exercise thereof), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is are no: (i) outstanding subscriptionshares of capital stock or other securities of the Company or any other Acquired Company; (ii) outstanding subscriptions, optionoptions, callcalls, warrant warrants or right rights (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, stock-based performance unit or any other right that is linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock or other securities of the Company or any other Acquired Company, in each case other than derivative securities not issued by the Company or any other Acquired Company; (iiiii) outstanding securitysecurities, instrument instruments, bonds, debentures, notes or obligation obligations that is are or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company or any other Acquired Company; (iiiiv) shareholder stockholder rights plan plans (or similar plan plans commonly referred to as a "“poison pill"”) or Contract Contracts under which the Company or any other Acquired Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (ivv) condition voting trusts or circumstance that may give rise other Contract to or provide which the Company is a basis for the assertion of a claim by any Person party with respect to the effect that such Person is entitled to acquire or receive any shares voting of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 2 contracts
Sources: Merger Agreement (Gilead Sciences Inc), Agreement and Plan of Merger (Kite Pharma, Inc.)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five fifty million (25,000,00050,000,000) shares of Company Common Stock, $.005 par value $0.01 per share, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand million (500,0005,000,000) shares of preferred stockPreferred Stock, $1.00 no par value per share. As of the date hereof, 9,573,254 shares of which Company Common Stock have been issued and 9,509,028 shares of Company Common Stock are outstanding and no shares of the Company's Preferred Stock have been issued or are outstanding. Such shares of Company Common Stock constitute all of the issued and outstanding shares of capital stock of the Company as of the date of this Agreementhereof. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there There are 1,151,109 no shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) Company's Subsidiaries. None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock is right or subject to any right of first refusal in favor of the Company; Company and (iii) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation None of the MergerAcquired Companies is under any obligation, (A) the shares of Parent Common Stock issued in exchange for or is bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreementhereof: (i) 330,483 shares of Company Common Stock are subject to issuance pursuant to stock options granted and outstanding options to purchase under the Company's 1996 Stock Incentive Plan; and (ii) 136,800 shares of Company Common StockStock are subject to issuance pursuant to stock options granted and outstanding under the Company's Stock Option Plan of 2002 (and together with the Company's 1996 Stock Incentive Plan, the "COMPANY OPTION PLANS"). (Stock options granted by the Company pursuant to the Company's stock option plans Company Option Plans are referred to in this Agreement collectively herein as "Company OptionsCOMPANY OPTIONS.") Part 2.3(b)(iSchedule 2.3(b) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998the date of this Agreement: (i) the particular plan Company Option Plan pursuant to which such Company Option was granted; (ii) the name of the optioneeholder of such Company Option; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered Delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options Company Options, and the form forms of all stock option agreements evidencing such options. There are no commitments or agreements of any character The Company Option Plans constitute all stock option plans pursuant to which the Company is bound obligating has granted options to purchase shares of Company Common Stock. The payment to be made to the holders of Company Options pursuant to the terms of this Agreement complies in all respects with the terms of the option agreement and Company Option Plan pursuant to which such holder (or such holder's predecessor) acquired such Company Options. Upon payment of such amounts to such holders, the Company shall have no further liability or obligation of any kind to accelerate the vesting any such holders in respect of any Company OptionOptions.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts Sections 2.3(a) or 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock equity interests or other securities of any of the CompanyAcquired Companies; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock equity interests or other securities of any of the CompanyAcquired Companies; (iii) shareholder rights agreement, stockholder rights plan (or similar plan commonly referred to as a "poison pillPOISON PILL") or Contract under which any of the Company Acquired Companies is or may become obligated to sell or otherwise issue any shares of its capital stock equity interests or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of any of the CompanyAcquired Companies ((i) through (iv) collectively, "STOCK RIGHTS").
(ed) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants Options and all outstanding shares of capital stock equity interests of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) any Contracts relating to such Company Options. All of the outstanding shares of capital stock of each equity interests of the Entities identified in Part 2.1(a)(i) of Company's Subsidiaries that are owned by the Company Disclosure Schedule have been duly authorized and are validly issued, are fully paid and nonassessable and are owned beneficially and of record directly or indirectly by the Company, free and clear of any Encumbrances.
Appears in 2 contracts
Sources: Merger Agreement (Lancer Corp /Tx/), Merger Agreement (Lancer Corp /Tx/)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share100,000,000 Shares, of which, as of August 31, 1998, 8,076,404 which 28,801,863 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstandingoutstanding as of the close of business on September 26, 2019 (the “Capitalization Date”); and (ii) five hundred thousand (500,000) 10,000,000 shares of the Company’s preferred stock, $1.00 0.001 par value per share, of which no shares have been issued or are outstanding as of the date of this Agreementoutstanding. All of the outstanding shares of Company Common Stock Shares have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock is Shares are entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock Shares is subject to any right of first refusal in favor of the Company; and (iii) there are no outstanding bonds, debentures, notes or other Indebtedness of any Acquired Corporation having a right to vote on any matters on which the stockholders of the Company have a right to vote; and (iv) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such ContractShares. None of the Acquired Corporations is under any obligation obligation, nor is it 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 August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Shares or other securities. The Company Common Stock are subject to issuance pursuant to constitutes the only outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) class of securities of the Acquired Corporations registered under the Securities Act. Other than the Support Agreements, there are no Company Disclosure Schedule sets forth the following information Contracts (including any voting trusts) with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements voting of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company OptionShares. All outstanding Shares have been offered and issued in compliance in all material respects with all applicable securities Laws.
(c) As of the date close of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three business on the Capitalization Date: (679,723i) shares of Company Common Stock 4,771,803 Shares are subject to issuance pursuant to Company Options; (ii) 80,267 Shares are subject to issuance pursuant to Company RSUs; and (iii) 2,189,599 Shares are reserved for future issuance under the Company Equity Plans. The Company has delivered or made available to Parent or Parent’s Representatives copies of the Company Equity Plans covering the Company Options and Company RSUs outstanding warrants as of the Agreement Date, the forms of all stock option agreements evidencing such Company Options, restricted stock unit grant notices and the forms of agreements evidencing the Company RSUs. Other than as set forth in this Section 4.3(c) and Section 4.3(b), there is no issued, reserved for issuance, outstanding or authorized stock option, restricted stock unit award, stock appreciation, phantom stock, profit participation, exercisable or exchangeable securities, similar rights or equity-based awards with respect to purchase the Company Common Stock or any other rights that are linked in any way to the price or way of any class of capital stock or share capital of the Company or the value of the Company.
("Company Warrants"). Part 2.3(cd) Section 4.3(d) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding Letter contains a true, correct and complete list, as of the date close of this Agreement: business on the second business day immediately preceding the Agreement Date, of (iA) the name of each holder of Company Options or RSUs, (B) the warrant holder; Company Equity Plan under which such Company Option or RSU was granted, (iiC) the number of shares of Company Common Stock Shares subject to each such outstanding Company Option and RSU, (D) the vesting schedule of each such Company Warrant; Option and RSU, (iiiE) the grant date of each such Company Option and RSU, (F) the exercise price and expiration date of each such Company Warrant; Option, and (ivG) the date on which whether each such Company Warrant was granted; (v) Option is intended to qualify as an “incentive stock option” under Section 422 of the applicable vesting schedule and Code, to the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever grantedapplicable.
(de) Except as set forth in Parts 2.3(bSections 4.3(a) and 4.3(c), 2.3(c) or 2.3(d) as of the Company Disclosure Schedule close of business on the Business Day immediately preceding the Agreement Date, there is are no: (i) outstanding subscriptionshares of capital stock, optionor other equity interest in, callany Acquired Corporation; (ii) outstanding subscriptions, warrant options, calls, warrants, rights or right obligations (whether or not currently exercisable) to acquire any shares of capital stock, restricted stock units, stock-based performance units or any other rights or obligations that are linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock or other securities of the Companyany Acquired Corporation; (iiiii) outstanding securitysecurities, instrument instruments, bonds, debentures, notes or obligation obligations that is are or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Companyany Acquired Corporation; or (iiiiv) shareholder stockholder rights plan plans (or similar plan commonly referred to as a "“poison pill"”) or Contract Contracts under which the Company any Acquired Corporation is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of or other voting securities of, or ownership interests in, each of the Entities identified in Part 2.1(a)(i) Subsidiary of the Company Disclosure Schedule are validly issuedis owned by the Company, fully paid and nonassessable and are owned directly or indirectly, beneficially and of record by the Companyrecord, free and clear of any Encumbrancesall Encumbrances and transfer restrictions, except for such Encumbrances and transfer restrictions of general applicability as may be provided under the Securities Act or other applicable securities laws.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share83,750,000 Shares, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount 52,472,785 Shares had been issued and were outstanding as of the date close of this Agreement) have been issued and are outstanding; business on April 30, 2020 (the “Capitalization Date”), of which 4,223,189 Shares constituted Restricted Shares and (ii) five hundred thousand (500,000) 5,000,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no shares are outstanding. From the Capitalization Date to the execution of this Agreement, the Company has not issued any Shares, including Restricted Shares, except pursuant to the exercise of Options (as defined in the Company ESPP) under the Company ESPP or the exercise of Company Options outstanding as of the date of this AgreementCapitalization Date in accordance with their terms and, since the Capitalization Date, the Company has not issued any Company Options, Company RSUs or other equity or equity-based awards. All of the outstanding shares of Company Common Stock Shares have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares equity interests of the Company Common Stock is are entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) none there are no outstanding bonds, debentures, notes or other indebtedness of the Company or any of its Subsidiaries having a right to vote on any matters on which the holders of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor equity interests of the CompanyCompany have a right to vote, as applicable; and (iii) there is no Acquired Corporation Contract to which the Company or any of its Subsidiaries is subject relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation equity interests of the Merger, (A) Company. The Shares constitute the shares only outstanding class of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) securities of the Company Disclosure Schedule sets forth registered under the following information with respect to each Company Option outstanding as of August 31, 1998: (i) Securities Act or the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company OptionExchange Act.
(c) As of the date close of this Agreementbusiness on the Capitalization Date: (i) 2,708,070 Shares were subject to issuance pursuant to Company Options granted and outstanding under the Company Equity Plans, six hundred seventy(ii) 1,383,796 Shares were subject to issuance pursuant to In-nine thousandThe-Money Company Options granted and outstanding under the Company Equity Plans and such In-The Money Company Options had a weighted average exercise price of $5.75, seven hundred twenty(iii) 42,702 Shares were subject to issuance pursuant to Out-three Of-The-Money Company Options granted and outstanding under the Company Equity Plans with an exercise price payable per Share less than $12.50 and such Out-Of-The-Money Company Options had a weighted average exercise price of $12.14, (679,723iv) shares of Company Common Stock 944,076 Shares are subject to issuance pursuant to Company RSUs granted and outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of under the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; Equity Plans, (v) the applicable vesting schedule and the extent to which such 472,648 Shares were reserved for future issuance under Company Warrant is vested and exercisable as of the date of this Agreement; Equity Plans and (viivi) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which 349,650 Shares were reserved for future issuance under the Company has ever grantedESPP.
(d) Except as set forth in Parts 2.3(bthis Section 3.3 and except for the Company Options and Company RSUs outstanding as of the date of this Agreement (and Shares issuable upon the exercise or vesting thereof), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is are no: (i) outstanding subscriptionshares of capital stock or other securities of the Company; (ii) outstanding subscriptions, optionoptions, callcalls, warrant warrants or right rights (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, stock-based performance unit or any other right that is linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock or other securities of the Company or any of its Subsidiaries, in each case other than derivative securities not issued by the Company; (iiiii) outstanding securitysecurities, instrument instruments, bonds, debentures, notes or obligation obligations that is are or may become convertible into or exchangeable for any shares of the capital stock or other securities of the CompanyCompany or any of its Subsidiaries; (iiiiv) shareholder stockholder rights plan plans (or similar plan plans commonly referred to as a "“poison pill"”) or Contract Contracts under which the Company or any of its Subsidiaries is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (ivv) condition voting trusts or circumstance that may give rise other Contract to which the Company or provide any of its Subsidiaries is a basis for the assertion of a claim by any Person party with respect to the effect that such Person is entitled to acquire or receive any shares voting of capital stock or other securities of the CompanyCompany or any of its Subsidiaries.
(e) All outstanding shares Section 3.3(e) of the Company Common Stock, Disclosure Schedule sets forth a listing of all Persons who hold outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary RSUs, or Restricted Shares as of the close of business on the Capitalization Date, indicating, with respect to each Company have been issued and granted in compliance Option, Company RSU, or Restricted Share, as applicable, the number of Shares subject thereto, the date of grant, the vesting schedule applicable thereto, the per Share exercise price with (i) all applicable securities laws and other applicable Legal Requirementsrespect each Company Option, and expiration date. Other than Shares reserved for future issuance under the Company ESPP, the outstanding Options (iias defined in the Company ESPP) all requirements under the Company ESPP or as set forth in applicable Contractsthis Section 3.3(e), as of the date of the Capitalization Date, there is no issued, reserved for issuance, outstanding or authorized stock option, stock appreciation, phantom stock, profit participation or similar equity or equity-based awards with respect to the Company or any of its Subsidiaries.
(f) All of the outstanding shares of capital stock of or other voting securities of, or ownership interests in, each of the Entities identified in Part 2.1(a)(i) Subsidiary of the Company Disclosure Schedule are validly issuedis owned by the Company, fully paid and nonassessable and are owned directly or indirectly, beneficially and of record by the Companyrecord, free and clear of any Encumbrancesall Encumbrances and transfer restrictions, except for such Encumbrances and transfer restrictions of general applicability as may be provided under the Securities Act or other applicable securities laws.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 95,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 35,532,571 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstandingoutstanding as of the close of business on May 3, 2019 (the “Specified Equity Date”); and (ii) five hundred thousand (500,000) 5,000,000 shares of preferred stock, $1.00 0.00001 par value per share, of which no shares have been issued or are outstanding as outstanding. From the close of business on the Specified Equity Date until the date of this Agreement, no shares of Company Common Stock have been issued, except for shares of Company Common Stock issued pursuant to the exercise of Company Options or the vesting of Company RSUs, in each case, outstanding on the Specified Equity Date and in accordance with their terms. The Company does not hold any shares of its capital stock in its treasury. There are no shares of Company Common Stock beneficially owned by any Subsidiary of the Company. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there There are 1,151,109 no shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (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) there Companies. There is no Acquired Corporation Company Contract relating to the Table of Contents voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation None of the MergerAcquired Companies is under any obligation, (A) the shares of Parent Common Stock issued in exchange for or is bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common StockStock or other securities.
(b) As of August 31, 1998, 957,725 the close of business on the Specified Equity Date: (i) 2,132,487 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to Company Options granted and outstanding options to purchase under the Company Equity Plans; (ii) 1,652,606 shares of Company Common Stock. (Stock options granted by the Company are reserved for future issuance pursuant to the Company's ’s 2017 Employee Stock Purchase Plan (the “ESPP”); (iii) 3,181,015 shares of Company Common Stock are subject to issuance and/or delivery pursuant to Company RSUs that vest solely based on time-based vesting requirements; (iv) no shares of restricted Company Common Stock are outstanding; (v) no shares of Company Common Stock are subject to stock option plans appreciation rights, whether granted under the Company Equity Plans or otherwise; (vi) no Company Equity Awards are referred outstanding other than those granted under the Company Equity Plans; and (vii) 2,149,327 shares of Company Common Stock are reserved for future issuance pursuant to in this Agreement as "Company Options.") Equity Awards not yet granted under the Company Equity Plans. Part 2.3(b)(i2.3(b) of the Company Disclosure Schedule accurately sets forth the following information with respect to each Company Option Equity Award outstanding as of August 31, 1998the close of business on the Specified Equity Date: (iA) the particular plan Company Equity Plan (if any) pursuant to which such Company Option Equity Award was granted; (iiB) the name employee identification number of the optioneeholder of such Company Equity Award; (iiiC) the number of shares of Company Common Stock subject to such Company OptionEquity Award (including, for Company Equity Awards subject to performance-based vesting requirements, both the target and the maximum number of shares of Company Common Stock); (ivD) the exercise price (if any) of such Company OptionEquity Award; (vE) the date on which such Company Option Equity Award was granted; (viF) the applicable vesting schedule schedule, and the extent to which such Company Option Equity Award is vested and exercisable as of the date of this Agreementand/or exercisable; and (viiG) the date on which such Company Equity Award expires; (H) if such Company Equity Award is a Company Option, whether it is an “incentive stock option” (as defined in the Code) or a non-qualified stock option; (I) if such Company Equity Award is a Company RSU, whether such Company RSU is subject to Section 409A of the Code and the regulations and guidance thereunder (“Section 409A”); (J) if such Company Equity Award is a Company RSU, the dates on which shares of Company Common Stock are scheduled to be delivered, if different from the applicable vesting schedule; and (K) whether the vesting of such Company Equity Award would be accelerated, in whole or in part, as a result of the Merger or any of the other Contemplated Transactions, alone or in combination with any termination of employment or other event. The exercise price of each Company Option expiresis no less than the fair market value of a share of Company Common Stock as determined on the date of grant of such Company Option. All grants of Company Equity Awards were recorded on the Company’s financial statements (including any related notes thereto) contained in the Company SEC Reports in accordance with GAAP, and no such grants involved any “back dating,” “forward dating” or similar practices with respect to the effective date of grant (whether intentionally or otherwise).
(c) The Company has delivered Made Available to Parent accurate and complete copies of all stock option equity-based plans or, if not granted under an equity plan, such other Contract, pursuant to which the any stock options, stock appreciation rights, restricted stock units, deferred stock units or restricted stock awards (including all outstanding Company has ever granted stock options Equity Awards, whether payable in equity, cash or otherwise) are currently outstanding, and the form forms of all stock option option, stock appreciation right, restricted stock unit, deferred stock unit and restricted stock award agreements evidencing such stock options. There are no commitments , stock appreciation rights, restricted stock units, deferred stock units or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
restricted stock awards (c) As of the date of this Agreementwhether payable in equity, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"cash or otherwise). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except (y) as set forth in Parts Part 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule and (z) for changes since the Specified Equity Date resulting from the exercise or settlement, as applicable, of Company Equity Awards outstanding on such date in accordance with their terms, there is no: (i) outstanding equity-based compensation award, subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of any of the CompanyAcquired Companies; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other Table of Contents securities of any of the CompanyAcquired Companies; or (iii) shareholder stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which any of the Company Acquired Companies is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Optionsoptions, all outstanding Company Warrants warrants, equity-based compensation awards (whether payable in equity, cash or otherwise) and all outstanding shares of capital stock of each Subsidiary other securities of the Company Acquired Companies have been issued and granted in compliance with with: (i) all applicable securities laws and other applicable Legal Requirements, Requirements in all material respects; and (ii) all requirements set forth in applicable ContractsContracts in all material respects.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are Company’s Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights, and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 1 contract
Sources: Merger Agreement (Aquantia Corp)
Capitalization, Etc. (aA) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 100,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 34,431,768 shares (which amount does not materially differ from the amount are issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of the date of this Agreement; and (ii) 10,000,000 shares of Preferred Stock, $0.00001 par value per share, of which 1,992.5 shares of Series A Preferred Stock and 1,705 shares of Series B Preferred Stock are issued and are outstanding as of the date of this Agreement. Except as set forth in Part 2.3(a)(i) of the Disclosure Schedule, the Company does not hold any shares of its capital stock in its treasury. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there There are 1,151,109 no shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
. Except as set forth in Part 2.3(a)(ii) of the Disclosure Schedule: (iA) None none of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (iiB) none of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor of the Company; and (iiiC) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Company Common StockStock or other securities. Part 2.3(a)(iii) of the Disclosure Schedule accurately and completely describes all repurchase rights held by the Company with respect to shares of Company Common Stock (including shares issued pursuant to the exercise of stock options), and specifies which of those repurchase rights are currently exercisable.
(bB) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement: (i) 8,096,600 shares of Company Common Stock are subject to issuance pursuant to stock options granted and outstanding options under the Company's 1997 Stock Option Plan (the "1997 Plan") and/or the Company's 2002 Stock Plan (the "2002 Plan"); (ii) 11,675,521 shares of Company Common Stock are reserved for future issuance pursuant to the Company Warrants; and (iii) 1,738,239 shares of Company Common Stock are reserved for future issuance pursuant to other agreements entered into by the Company. (Options to purchase shares of Company Common Stock. Stock (Stock options whether granted by the Company pursuant to the Company's stock option plans 1997 Plan, the 2002 Plan, assumed by the Company in connection with any merger, acquisition or similar transaction or otherwise issued or granted) are referred to in this Agreement as "Company Options".") Part 2.3(b)(i2.3(b) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998the date of this Agreement: (iA) the particular plan Option Plan (if any) pursuant to which such Company Option was granted; (iiB) the name of the optionee; (iiiC) the number of shares of Company Common Stock subject to such Company Option; (ivD) the exercise price of such Company Option; (vE) the date on which such Company Option was granted; (viF) the applicable vesting schedule schedule, and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (viiG) the date on which such Company Option expires. The ; and (H) whether such Company has delivered to Parent accurate and complete copies of all Option is an "incentive stock option plans pursuant to which option" (as defined in the Company has ever granted Code) or a non-qualified stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants")option. Part 2.3(c2.3(b) of the Company Disclosure Schedule also sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i1) the name of the warrant holdergrantee; (ii2) the number of shares of Company Common Stock subject to such Company Warrant; (iii3) the exercise price of such Company Warrant; (iv4) the date on which such Company Warrant was granted; (v5) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii6) the date on which such Company Warrant expires. The Company has delivered made available to Parent accurate and complete copies of the 1997 Plan, the 2002 Plan and the forms of all agreements, certificates stock option agreements evidencing outstanding Company Options. The Company has made available to Parent accurate and other documents evidencing all warrants which complete copies of the Company has ever grantedWarrants.
(dC) Except as set forth in Parts Part 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule Schedule, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; (iii) shareholder stockholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which any of the Company Acquired Corporations is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of any of the CompanyAcquired Corporations from an Acquired Corporation.
(eD) All Except as set forth in Part 2.3(d) of the Disclosure Schedule, all outstanding shares of Company Common Stock, all outstanding Company Optionsoptions, all outstanding Company Warrants warrants and all outstanding shares of capital stock of each Subsidiary other securities of the Company Acquired Corporations have been issued and granted in compliance with with: (i) all applicable securities laws and other applicable Legal Requirements, ; and (ii) all requirements set forth in applicable Contracts.
(fE) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are Company's Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof, and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 1 contract
Sources: Merger Agreement (Virtgame Com Corp)
Capitalization, Etc. (a) The authorized capital stock of the Company Acquiror consists of: of (i) twenty-five million (25,000,000) 200,000,000 shares of Company Acquiror Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value 0.02 per share, of which no 59,859,271 shares have been issued and are outstanding as of the date of this Agreement, and (ii) 2,998,425 shares of Preferred Stock, of which 1,120,000 shares have been designated $2.4375 Convertible Exchangeable Preferred Stock, Series 1, $0.02 par value (the “Acquiror Preferred Stock”). As of the date hereof, 78,768 shares of Acquiror Preferred Stock have been issued and are outstanding. The Acquiror does not hold any shares of its capital stock in its treasury. All of the outstanding shares of Company Acquiror Common Stock have been and Acquiror Preferred Stock are, and any additional shares of Acquiror Common Stock and Acquiror Preferred Stock issued after the date hereof and prior to the Effective Time will be, duly authorized and validly issued, and are fully paid and nonassessable. As nonassessable and free of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive rightrights, right rights of first refusal, rights of participation, right co-sale rights, rights of maintenance or any similar right; (ii) none rights, and have been or will be issued in compliance in all respects with all applicable federal and state securities laws and the Acquiror’s articles of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor of the Company; incorporation and (iii) bylaws. Except as contemplated herein, there is no Acquired Corporation Acquiror 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 Acquiror Common Stock or Acquiror Preferred Stock. Upon consummation of the MergerThe Acquiror is not under any obligation, (A) the shares of Parent Common Stock issued in exchange for nor is it bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Acquiror Common Stock, Acquiror Preferred Stock or other securities except for a right of repurchase associated with currently outstanding shares of restricted Acquiror Common Stock granted to service providers. As of the date hereof, each share of Acquiror Preferred Stock is convertible into 0.19 share of Acquiror Common Stock.
(b) As of August 31Except for the Acquiror’s Amended and Restated 2004 Incentive Compensation Plan (the “Acquiror Stock Plan”), 1998, 957,725 shares (which amount the Acquiror does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common have any stock option plan or any other plan, program, agreement or arrangement providing for any equity or equity-based compensation for any Person. The Acquiror Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted Plan has been duly authorized, approved and adopted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) Acquiror’s Board of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule Directors and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expiresshareholders. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) the Acquiror has reserved 13,365,554 shares of Company Acquiror Common Stock for issuance under the Acquiror Stock Plan, of which 3,993,271 shares have been issued or canceled, 4,794,908 shares are subject to issuance pursuant to Acquiror Options granted and outstanding under the Acquiror Stock Plan, 3,424,641 shares are subject to issuance pursuant to Acquiror RSUs granted and outstanding under the Acquiror Stock Plan and 1,145,234 shares of Acquiror Common Stock remain available for future issuance pursuant to equity awards not yet granted under the Acquiror Stock Plan. As of the date hereof, the Acquiror also has 87,898 shares of Acquiror Common Stock reserved for issuance pursuant to Acquiror Options granted and outstanding under the Acquiror’s Restated 1994 Stock Option Plan, which was terminated on February 17, 2004 (the “Acquiror Terminated Option Plan”). As of the date hereof, 197,169 shares of Acquiror Common Stock are subject to reserved for future issuance pursuant to outstanding warrants to purchase Company Acquiror Common Stock ("Company collectively, the “Acquiror Warrants"”). Part 2.3(cAll outstanding Acquiror Options, Acquiror RSUs and Acquiror Warrants have been granted, issued and delivered (i) in compliance with all applicable federal and state securities laws and (ii) in material compliance with all other applicable Legal Requirements and all requirements set forth in applicable Contracts. All shares of Acquiror Common Stock subject to issuance pursuant to Acquiror Options, Acquiror RSUs and Acquiror Warrants, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable and offered, issued and delivered in compliance with all applicable federal and state securities laws and regulations and the articles of incorporation and bylaws of the Acquiror. Schedule 3.3(b) of the Company Acquiror Disclosure Schedule Letter sets forth the following information with respect to each Company Warrant outstanding a spreadsheet accurately listing, as of the date hereof, all holders of this Agreement: (i) the name of the warrant holder; (ii) outstanding Acquiror Options, Acquiror RSUs and Acquiror Warrants, the number of shares of Company Common Stock subject to such Company Warrant; (iii) Acquiror Options, Acquiror RSUs and Acquiror Warrants held by each holder, the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable grant or award date, vesting schedule and expiration date of each such Acquiror Option, Acquiror RSU, and Acquiror Warrant, the extent to which exercise prices of such Company Warrant is vested Acquiror Options and exercisable Acquiror Warrants, and whether the Acquiror Options are non-statutory options or incentive stock options as defined in Section 422 of the date of this Agreement; and (vii) the date on which such Company Warrant expiresCode. The Acquiror has made available to the Company has delivered to Parent accurate and complete copies of the forms of all agreementsoutstanding Acquiror Warrants, certificates the Acquiror Stock Plan and other documents evidencing the Acquiror Terminated Option Plan, forms of all warrants which Acquiror Options and Acquiror RSUs granted and currently outstanding thereunder, copies of resolutions of the Company has ever granted.
(d) Board of Directors approving or authorizing the grants of all outstanding Acquiror Options, Acquiror RSUs and Acquiror Warrants and copies of shareholder resolutions or minutes of shareholder meetings reflecting shareholder approval of the Acquiror Stock Plan and the Acquiror Terminated Option Plan. No Acquiror Options have been issued in violation of Section 409A of the Code. Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(dSchedule 3.3(b) of the Company Acquiror Disclosure Letter, no vesting of outstanding Acquiror Options, Acquiror RSUs or Acquiror Warrants will accelerate in connection with the closing of the Contemplated Transactions.
(c) Except for the outstanding Acquiror Preferred Stock, Acquiror Options, Acquiror RSUs and Acquiror Warrants or as set forth on Schedule 3.3(c) of the Acquiror Disclosure Letter, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the CompanyAcquiror except for rights of first refusal and rights of repurchase associated with outstanding shares of restricted Acquiror Common Stock granted to service providers; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the CompanyAcquiror; (iii) shareholder stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which the Company Acquiror is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities, pay any dividend or make any other distribution in respect thereof, or make any investment (in the form of a loan, capital contribution or otherwise) in any Person; or (iv) condition or circumstance that may reasonably would be expected to give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the CompanyAcquiror. There are no outstanding or authorized stock appreciation, phantom stock, profit participation or other similar rights with respect to the Acquiror.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) of 10,000,000 shares of Company Common Stock, $.005 no par value per sharevalue, of which, as of August 31, 1998, 8,076,404 which 10,000,000 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; outstanding (“Capital Stock”) as set forth on Schedule I. The Company does not now, and (ii) five hundred thousand (500,000) never has had, a Stock Option Plan or any other plan pursuant to which stock options or other rights, including but not limited to, warrants, subscriptions, calls or other rights to purchase securities of the Company have been issued to any Person. There are no shares of preferred stock, $1.00 par value per share, of which capital stock held in the Company’s treasury. There are no shares are outstanding as beneficial or record owners of the date Company’s Capital Stock other than the Shareholders, except as set forth in Section 2.3(a) of this Agreementthe Disclosure Schedule, which sets forth the names and addresses of all such Company stockholders other than the Shareholders and the number of shares of Company Common Stock owned by each of such stockholders. All of the outstanding shares of Company Common Company’s Capital Stock have been duly authorized and validly issued, and are fully paid and nonassessablenon-assessable, and none of such shares is subject to any repurchase option or restriction on transfer (other than restrictions on transfer imposed by virtue of applicable federal and state securities laws). As Each of the date of this Agreement, there are 1,151,109 shares of Shareholders has good and valid title to the Company Common Stock held in treasury by the Company listed opposite such Shareholder’s name on Schedule I free and no shares clear of stock held in treasury by any and all Encumbrances, and as of the other Acquired Corporations.
(i) None Closing Date, Tarantella will acquire good and valid title to all of the outstanding shares of Company Common Capital Stock is entitled or subject to free and clear of any preemptive right, right of participation, right of maintenance 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) there is no Acquired Corporation 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stockall Encumbrances.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts Section 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule Schedule, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire acquire, or otherwise relating to, any shares of the capital stock or other securities of the Company; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(ec) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company Capital Stock have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(fd) All Any shares of Capital Stock or other securities repurchased, redeemed or otherwise reacquired by the Company were validly reacquired in compliance with (i) the applicable provisions of the outstanding shares of capital stock of each Corporation Code of the Entities identified State of California and all other applicable Legal Requirements, and (ii) any requirements set forth in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrancesapplicable Contracts.
Appears in 1 contract
Capitalization, Etc. (a) The total authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share200,000,000 Shares, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount 83,637,234 Shares had been issued and were outstanding as of the date close of this Agreement) have been issued and are outstandingbusiness on September 12, 2019 (the “Capitalization Date”); and (ii) five hundred thousand (500,000) 10,000,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no 779,776 shares are had been issued and were outstanding as of the date close of this Agreementbusiness on the Capitalization Date, all of which were designated as Class A-1 Convertible Preferred Stock (the “Class A-1 Convertible Preferred Stock”) pursuant to the Certificate of Designation of Preferences, Rights and Limitations as filed with the Secretary of State of the State of Delaware on January 7, 2018 (the “Certificate of Designation”). The total authorized capital stock and ordinary shares, together with all issued and outstanding shares thereof, of the other Acquired Corporations are set forth on Section 3.3(a) of the Company Disclosure Schedule, which shares constitute all of the outstanding capital stock, ordinary shares, other equity interests or other securities of the other Acquired Corporations. All of the outstanding shares of the capital stock of the Company Common Stock and the outstanding shares of capital stock or ordinary shares of the other Acquired Corporations have been duly authorized and validly issued, issued and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock is capital stock or ordinary shares of the Acquired Corporations are entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock is capital stock or ordinary shares of the Acquired Corporations are subject to any right of first refusal in favor of the Companyany Acquired Corporation; and (iii) there is are no outstanding bonds, debentures, notes or other indebtedness of any Acquired Corporation having a right to vote on any matters on which the stockholders of the Acquired Corporations have a right to vote; and (iv) neither any Acquired Corporation nor, to the knowledge of the Company, any other Person, is party to a Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging pledging, transferring or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation capital stock or ordinary shares of the MergerAcquired Corporations. No Acquired Corporation is under any obligation, (A) the shares of Parent Common Stock issued in exchange for or bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stockcapital stock or ordinary shares of the Acquired Corporations or to make any future investment in or capital contribution to any Person. The Shares constitute the only outstanding class of securities of any Acquired Corporation registered under the Securities Act.
(bc) As of August 31the close of business on the Capitalization Date: (i) 12,277,758 Shares were subject to issuance pursuant to Company Options granted and outstanding under the Company Equity Plan, 1998(ii) 1,292,995 Shares were subject to issuance pursuant to Company RSUs and Company PSUs granted and outstanding under the Company Equity Plan, 957,725 (iii) 2,843,683 Shares were reserved for future issuance under Company Equity Plan, (iv) 2,293,113 Table of Contents Shares were reserved for future issuance under the Company ESPP, (v) 19,166,648 Shares were reserved for future issuance upon conversion of the Convertible Senior Notes, and (vi) 8,547,760 Shares were reserved for future issuance upon conversion of the Class A-1 Convertible Preferred Stock (including any shares of Class A-1 Convertible Preferred Stock issuable pursuant to the Company Warrant). As of the close of business on the Capitalization Date, the weighted average exercise price of the Company Options outstanding as of that date was $17.07, the “Conversion Ratio” of the Class A-1 Convertible Preferred Stock, as defined in the Certificate of Designation, was 10:1 and the exercise price per share of Class A-1 Convertible Preferred Stock of the Company Warrant was $137.88. As of the close of business on the Capitalization Date, assuming that the Closing had taken place on such date (and for hypothetical purposes assuming that the trading price of the Shares during the five (5) trading days prior to the Closing is equal to the Closing Amount), the “Conversion Rate” of the Convertible Senior Notes, as defined in the Convertible Senior Notes Indenture, would have been 60.4666, and as of the date of this Agreement, the aggregate outstanding principal amount of the Convertible Senior Notes is $287,500,000. Other than as set forth in this Section 3.3(c), there are no issued, reserved for issuance, outstanding or authorized stock option, stock appreciation, phantom stock, profit participation or similar rights or equity-based awards with respect to any Acquired Corporation. All of the Shares that may be issued pursuant to any of the Company Options, the Company RSUs, the Company PSUs, the Company Equity Plans, the Company ESPP, the Company Warrant, the Preferred Stock Purchase Agreement or the Convertible Senior Notes will be, when issued in accordance with the respective terms thereof, duly authorized and validly issued and are, or will be when issued, fully paid, nonassessable and free of preemptive rights. The Company has made available to Parent true, accurate and complete copies of each of the Company Warrant, the Company ESPP, the Company Equity Plans and the forms of stock option, restricted stock unit and performance stock unit agreements evidencing any awards under the Company Equity Plans, and in respect of the foregoing forms, other than differences with respect to the number of Shares covered thereby, the grant date, the exercise price, regular vesting schedule and expiration date applicable thereto, no such stock option or restricted stock unit agreement contains material terms that are not consistent with, or are in addition to, such forms. The Company has the requisite authority under the terms of the applicable Company Equity Plan, the applicable award agreements, the Certificate of Designation, the Preferred Stock Purchase Agreement and any other applicable Contract to take the actions contemplated by Sections 2.8, 2.9 and 2.10, and the treatment of the Class A-1 Convertible Preferred Stock, Company Options, Company PSUs, Company RSUs and the Company Warrant contemplated by Sections 2.8, 2.9 and 2.10, respectively, shall, as of the Offer Acceptance Time and the Effective Time, as applicable, be binding on the holders of Company equity awards, the Class A-1 Convertible Preferred Stock and the Company Warrant purported to be covered thereby. From close of business on the Capitalization Date to the execution of this Agreement, the Company has not issued any Shares except pursuant to the exercise of the purchase rights under the Company ESPP, the exercise of Company Options or the settlement of Company RSUs or Company PSUs outstanding as of the Capitalization Date in accordance with their terms.
(d) Section 3.3(d) of the Company Disclosure Schedule sets forth, as of the close of business on the Capitalization Date, each outstanding Company Option, Company RSU and Company PSU and to the extent applicable, (i) the name (or employee identification number) and country of residence (if outside the U.S.) of the holder thereof, (ii) the number of Shares issuable thereunder, (iii) the expiration date, (iv) the exercise price relating thereto, (v) Table of Contents the grant date, (vi) the amount vested and outstanding and the amount unvested and outstanding, (vii) the Company Equity Plan pursuant to which amount the award was made, (viii) whether such award is subject to Section 409A of the Code and (ix) for any Company Options, whether such Company Option is an incentive stock option (within the meaning of Section 422 of the Code). 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 Board of Directors (or a duly constituted and authorized committee thereof or other authorized designee) and any required stockholder approval by the necessary number of votes or written consents. The Company does not materially differ from have any liability in respect of any Company Option that was granted with a per share exercise price that was less than the amount fair market value of a share of Company Common Stock on the applicable Company Option grant date, and the Company has not granted any Company Options that are subject to options the provisions of Section 409A of the Code.
(e) Except (w) as set forth in Sections 3.3(a) through (d), (x) for the obligation to issue the Company Warrant and pursuant to the terms of the Company Warrant, (y) for the Class A-1 Convertible Preferred Stock outstanding as of the date of this Agreement or issuable upon exercise of the Company Warrant (and shares of capital stock issuable as a result of accrued dividends or upon the conversion or the exercise thereof, as applicable) and (z) for the Convertible Senior Notes, Company Warrant, Company Options, Company RSUs and Company PSUs outstanding as of the date of this Agreement) of Company Common Stock , there are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscriptionshares of capital stock of, optionordinary shares of, callother equity interests in or other securities of any Acquired Corporation; (ii) outstanding subscriptions, warrant options, calls, warrants or right rights (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, stock-based performance unit or any other right that is linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock of, ordinary shares of, other equity interests in or other securities of the Companyany Acquired Corporation, in each case other than derivative securities not issued by an Acquired Corporation; (iiiii) outstanding securitysecurities, instrument instruments, bonds, debentures, notes or obligation obligations that is are or may become convertible into or exchangeable for any shares of the capital stock of, ordinary shares of, other equity interests in or other securities of the Companyany Acquired Corporation; (iiiiv) shareholder stockholder rights plan plans (or similar plan plans commonly referred to as a "“poison pill"”) or Contract Contracts under which the Company any Acquired Corporation is or may become obligated to sell or otherwise issue any shares of its capital stock ordinary shares, other equity interests or any other securities; or (ivv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by Contracts with any Person to which any Acquired Corporation is a party (1) restricting the effect that such Person is entitled to acquire transfer or receive otherwise imposing an Encumbrance on any shares of capital stock of, ordinary shares of, other equity interests in or other securities of any Acquired Corporation or (2) affecting the Company.
(e) All outstanding shares voting rights of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding any shares of capital stock of, ordinary shares of, other equity interests in or other securities of each Subsidiary of the Company have been issued and granted in compliance with any Acquired Corporation (i) all applicable securities laws and other applicable Legal Requirementsincluding stockholder agreements, and (ii) all requirements set forth in applicable Contractsvoting trusts or similar agreements).
(f) All dividends or distributions on any capital stock of, ordinary shares of, other equity interests in or other securities of any Acquired Corporation that have been declared or authorized have been paid in full (or, in the case of the outstanding shares Class A-1 Convertible Preferred Stock, paid in kind in accordance with the Certificate of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any EncumbrancesDesignation).
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share340,000,000 Shares, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount 223,095,419 Shares had been issued and were outstanding as of the date close of this Agreement) have been issued and are outstandingbusiness on June 13, 2019 (the “Capitalization Date”); and (ii) five hundred thousand (500,000) 10,000,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no shares are outstanding as of the date of this Agreementoutstanding. All of the outstanding Shares and the outstanding shares of Company Common Stock capital stock or ordinary shares of the other Acquired Corporations have been duly authorized and validly issued, and are fully paid and nonassessable. As From the Capitalization Date to the execution of this Agreement, the Company has not issued any Shares except pursuant to the exercise of the purchase rights under the Company ESPP, the exercise of Company Options or the settlement of Company RSUs outstanding as of the Capitalization Date in accordance with their terms and, since the Capitalization Date, except as permitted by this Agreement for the period following the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by has not issued any of the other Acquired CorporationsCompany Options or Company RSUs.
(i) None of the outstanding shares of Company Common Stock is capital stock of the Acquired Corporations are entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock is capital stock of the Acquired Corporations are subject to any right of first refusal in favor of the Companyany Acquired Corporation; and (iii) there are no outstanding bonds, debentures, notes or other indebtedness of any Acquired Corporation having a right to vote on any matters on which the stockholders of the Acquired Corporations have a right to vote; and (iv) there is no Acquired Corporation Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation capital stock of the MergerAcquired Corporations. No Acquired Corporation is under any obligation, (A) the shares of Parent Common Stock issued in exchange for or bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as capital stock of the date Acquired Corporations. The Shares constitute the only outstanding class of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) securities of the Company Disclosure Schedule sets forth registered under the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company OptionSecurities Act.
(c) As of the date close of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three business on the Capitalization Date: (679,723i) shares of Company Common Stock are 16,008,904 Shares were subject to issuance pursuant to Company Options granted and outstanding warrants under the Company Equity Plan, (ii) 1,125,625 Shares were subject to purchase issuance pursuant to Company Common Stock RSUs granted and outstanding under the Company Equity Plan, ("iii) 37,894,794 Shares were reserved for future issuance under Company Warrants")Equity Plan, (iv) 745,032 Shares were reserved for future issuance under the Company ESPP and (v) 8,155,918 Shares were reserved for future issuance upon conversion of the Convertible Senior Notes. Part 2.3(c) As of the close of business on the Capitalization Date, the weighted average exercise price of the Company Disclosure Schedule sets Options outstanding as of that date was $10.66. Other than as set forth the following information in this Section 3.3(c), there is no issued, reserved for issuance, outstanding or authorized stock option, stock appreciation, phantom stock, profit participation or similar rights or equity-based awards with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever grantedany Acquired Corporation.
(d) Except as set forth in Parts 2.3(bthis Section 3.3 and except for the Convertible Senior Notes, Company Options and Company RSUs outstanding as of the date of this Agreement (and Shares issuable upon the conversion or exercise thereof, as applicable), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is are no: (i) outstanding subscriptionshares of capital stock of or other securities of any Acquired Corporation; (ii) outstanding subscriptions, optionoptions, callcalls, warrant warrants or right rights (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, stock-based performance unit or any other right that is linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock or other securities of the Companyany Acquired Corporation, in each case other than derivative securities not issued by an Acquired Corporation; (iiiii) outstanding securitysecurities, instrument instruments, bonds, debentures, notes or obligation obligations that is are or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Companyany Acquired Corporation; or (iiiiv) shareholder stockholder rights plan plans (or similar plan plans commonly referred to as a "“poison pill"”) or Contract Contracts under which the Company any Acquired Corporation is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All As of the date of this Agreement, the aggregate outstanding principal amount of the Convertible Senior Notes is $126,060,000. The “Conversion Rate” (as defined in the Convertible Senior Notes Indenture) equals 64.6987 shares of Company “Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares ” (as defined in the Convertible Senior Notes Indenture) per $1,000 principal amount of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable ContractsConvertible Senior Notes.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(iSection 3.3(f) of the Company Disclosure Schedule are validly issuedsets forth a listing of all Persons who hold outstanding Company Options or Company RSUs as of the close of business on June 13, fully paid 2019, indicating, with respect to each Company Option or Company RSU, the number of Shares subject thereto, the date of grant or issuance, the vesting schedule and, with respect to Company Options, the exercise price, expiration date and nonassessable and are owned beneficially and whether such Company Option is an incentive stock option (within the meaning of record by Section 422 of the Company, free and clear of any EncumbrancesCode).
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company ALC consists of: of Ten Thousand (i) twenty-five million (25,000,00010,000) shares of Company Common Stockcommon stock, $.005 no par value per sharevalue, of which, as of August 31, 1998, 8,076,404 which Five Thousand Three Hundred (5,300) shares (which amount does not materially differ from the amount issued and outstanding as constituting all of the date of this AgreementShares) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of the date of this Agreement. .
(b) All of the outstanding shares of Company Common Stock Shares (i) have been duly authorized and validly issued, and (ii) are fully paid and nonassessable. As of the date of this Agreementnon-assessable, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (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) there is no Acquired Corporation 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock have been issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions full compliance with all applicable securities laws and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contractapplicable Legal Requirements. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company ALC has delivered to Parent the Purchaser accurate and complete copies of the stock certificates evidencing the Shares. Part 2.3 of the Disclosure Schedule accurately lists all of the holders of the outstanding capital stock option plans pursuant to which the Company has ever granted stock options of ALC and the form number of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Optionshares held by them.
(c) As Part 2.3 of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule accurately sets forth the following information forth, with respect to each Company Warrant outstanding as of the date of this AgreementOption: (i) the name of the warrant holderholder of such Option; (ii) the total number of shares of Company Common Stock the common stock of ALC that are subject to such Company WarrantOption and the number of shares of common stock with respect to which such Option is immediately exercisable (assuming consummation of the transaction contemplated by this Agreement); (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant Option was grantedgranted and the term of such Option; (iv) the vesting schedule for such Option; (v) the applicable vesting schedule and the extent to which exercise price per share of common stock purchasable under such Company Warrant is vested and exercisable as of the date of this AgreementOption; and (viivi) whether such Option has been designated an “incentive stock option” as defined in Section 422 of the date on which such Company Warrant expiresCode. The Company ALC has delivered to Parent Purchaser accurate and complete copies of all agreements, certificates and other the documents evidencing all warrants which the Company has ever grantedOptions.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) All of the Company Disclosure Schedule Options have been duly authorized and validly issued and have been issued in full compliance with all applicable securities laws and other applicable Legal Requirements.
(e) Other than the Options, there is no: :
(i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company; ALC;
(ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; ALC;
(iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company ALC is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or or
(iv) condition or circumstance that may directly or indirectly give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable ContractsALC.
(f) All of the outstanding ALC has never repurchased, redeemed or otherwise reacquired any shares of capital stock of each of the Entities identified or other securities, except as set forth in Part 2.1(a)(i2.3(f) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any EncumbrancesSchedule.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share200,000,000 Shares, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount 32,066,998 Shares were issued and outstanding as of the date close of this Agreement) have been issued and are outstanding; business on May 4, 2015 and (ii) five hundred thousand (500,000) 25,000,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no shares are were issued and outstanding as of the date close of this Agreementbusiness on May 4, 2015. All of the outstanding shares of Company Common Stock Shares have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(b) Except as set forth in Part 3.3(b) of the Company Disclosure Letter (i) None none of the outstanding shares of Company Common Stock Shares is entitled or subject to to, or has been issued in violation of, any preemptive right, antidilutive right, vesting condition, right of repurchase or forfeiture, right of participation, right of maintenance maintenance, conversion right, redemption right or any similar right; (ii) none of the outstanding shares of Company Common Stock Shares is subject to any right of first refusal in favor of the Company; and (iii) there is are no Acquired Corporation Contract outstanding bonds, debentures, notes or other indebtedness of the Company having a right to vote (or convertible into or exercisable for such securities having the right to vote) on any matters on which the stockholders of the Company have a right to vote; (iv) there are no stockholder agreements, proxies, voting trusts or any other Company Contracts relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such ContractShares. None of the Acquired Corporations is under any obligation obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Shares or other Company Common Stocksecurities.
(bc) As of August 31as of the close of business on May 4, 19982015, 957,725 the Company has no shares of capital stock reserved for issuance, except for: (which amount does not materially differ from the amount i) 257,622 Shares subject to options issuance pursuant to Company Options granted and outstanding under the Company’s U.S. Share Option Plan of Borderfree, Inc. (the “Initial U.S. Plan”); (ii) 568,974 Shares subject to issuance pursuant to Company Options granted and outstanding under the Company’s Israeli Share Option Plan of Borderfree, Inc. (the “Initial Israeli Plan”); (iii) 1,574,546 Shares subject to issuance pursuant to Company Options granted and outstanding under the Company’s 2011 Stock Option and Grant Plan (the “2011 Plan”); (iv) 1,929,343 Shares subject to issuance pursuant to Company Options and 30,000 Shares subject to issuance pursuant to Company RSUs, in each case, granted and outstanding under the Company’s 2014 Stock Option and Incentive Plan and any sub-plans thereunder (the “2014 Plan”); and (v) 388,099 Shares subject to issuance pursuant to Company RSUs granted and outstanding under the Company’s 2015 Stock Option Inducement Plan (the “2015 Plan”). The Company has delivered or otherwise made available to Parent or Parent’s Representatives prior to the date of this Agreement true and complete copies of all Company Equity Plans covering the Company Options and Company RSUs outstanding as of the date of this Agreement) Agreement and the forms of all award agreements evidencing such Company Common Stock Options and Company RSUs (and no such award contains terms that are subject to issuance materially different from the applicable form agreement). Each Company Option and Company RSU was granted in compliance in all material respects with all applicable Law and all of the terms and conditions of the Company Equity Plan pursuant to outstanding options to purchase Company Common Stockwhich it was issued. (Stock options granted by The terms of the Company pursuant Equity Plans permit the Company Options and Company RSUs to be treated in the Company's stock option plans are referred to manner set forth in this Agreement as "Company Options.") Section 6.2. Part 2.3(b)(i3.3(c) of the Company Disclosure Schedule sets forth the following information with respect to Letter contains a correct and complete list of each outstanding Company Option outstanding and Company RSU as of August 31the close of business on May 4, 1998: 2015, including the holder’s name, country and state of residence, date of grant, exercise or purchase price (i) if applicable), the particular plan pursuant number of Shares subject thereto, the number of Shares subject thereto that have vested as of such date, the vesting schedule, whether any Company Option is intended to qualify as an Incentive Stock Option (within the meaning of the Code), and the Company Equity Plan under which such Company Option and Company RSU was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) All of the outstanding capital stock or other voting securities of, or ownership interests in, each Subsidiary of the Company are duly authorized, validly issued, fully paid and, where applicable, nonassessable and owned by the Company, free and clear of any Encumbrance (except for Permitted Encumbrances). None of the Acquired Corporations own any voting interest in any Person except for the voting interests in the Acquired Corporations. No Subsidiary of the Company owns any shares of capital stock of the Company.
(e) Except as set forth in Parts 2.3(bSection 3.3(a) or 3.3(c), 2.3(c) or 2.3(d) no shares of capital stock of the Company Disclosure Schedule have been issued, are reserved for issuance or are outstanding. Except as set forth in Section 3.3(c), there is no: (i) outstanding subscription, option, call, warrant warrant, agreement, arrangement, commitment or other right (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, stock-based performance unit, shares of phantom stock, stock appreciation right, profit participation right or any other right that is linked to, or the value of which is in any way based on or derived from, the value of any shares of capital stock or other securities of any of the CompanyAcquired Corporations or granting any preemptive or anti-dilutive or similar rights with respect to any shares of capital stock or securities of any of the Acquired Companies; (ii) outstanding security, instrument instrument, bond, debenture, note or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the Company; Acquired Corporations or (iii) shareholder stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which any of the Company Acquired Corporations is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 1 contract
Capitalization, Etc. (aA) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of the date of this Agreement. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (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) there is no Acquired Corporation 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(bB) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company OptionsCOMPANY OPTIONS.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(cC) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company WarrantsCOMPANY WARRANTS"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.6
(dD) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(eE) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(fF) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million 125,000,000 Shares, of which 29,654,234 shares have been issued or are outstanding as of the close of business on the Reference Date; (25,000,000ii) 8,401,521 shares of Class B Common Stock, of which 231,540 shares have been issued or are outstanding as of the close of business on the Reference Date; and (iii) 12,500,000 shares of Company Preferred Stock, none of which are issued or outstanding as of the close of business on the Reference Date. As of the close of business on the Reference Date, there were no shares of Company Common Stock held in the treasury of the Company. No Subsidiary of the Company owns any shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of the date of this Agreement. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As nonassessable and were issued in accordance with applicable Legal Requirements of the date DGCL and the organizational documents of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares were not issued in violation of stock held in treasury by any preemptive rights, rights of the other Acquired Corporationsfirst refusal or similar rights.
(b) (i) None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; , (ii) none of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor of the Company; and , (iii) there are no outstanding bonds, debentures, notes or other Indebtedness of the Company having a right to vote on any matters on which the Company Stockholders have a right to vote (other than, upon conversion, the Company Convertible Notes) and (iv) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation of the MergerThe Company is not under any obligation, (A) the shares of Parent Common Stock issued in exchange for nor is it bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common StockStock or grant, extend or enter into any subscription, warrant, convertible or exchangeable security or other similar agreement or commitment (whether payable in equity, cash or otherwise) relating to any capital stock of, or other equity or voting interest (including any voting debt), in any Acquired Company, other than pursuant to the Capped Call Confirmations and the HoldCo LLC Agreement. The Class A Common Stock constitutes the only outstanding class of securities of the Acquired Companies registered under the Securities Act or the Exchange Act.
(bc) As of August 31, 1998, 957,725 shares the close of business on the Reference Date: (which amount does not materially differ from the amount i) 968,720 Shares are subject to options issuance pursuant to Company Options granted and outstanding under the Company Incentive Plan; (ii) 1,807,061 Shares are subject to or otherwise deliverable in connection with outstanding RSUs under Company Incentive Plan, assuming a maximum number of shares to be issued under such RSUs; (iii) 27,150 Shares are subject to issuance pursuant to Company Options granted and outstanding under the Company Inducement Plan; (iv) 4,848,228 Shares are issuable under the Indenture at the Conversion Rate (as defined in the Indenture); and (v) 231,540 Shares are reserved for issuance upon any HoldCo Unit Exchange. The Company has delivered or made available to Parent or Parent’s Representatives copies of all Company Equity Plans covering the Company Options and RSUs outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by , the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form forms of all stock option agreements evidencing such optionsCompany Options and the forms of stock unit agreements evidencing such RSUs. There are Other than as set forth in this Section 2.3(c) and Section 2.3(d), as of the close of business on the Reference Date, there is no commitments issued, reserved for issuance, outstanding or agreements of any character authorized stock option, restricted stock unit award, performance-based restricted stock unit award, stock appreciation, phantom stock, profit participation or similar rights or equity-based awards with respect to which the Company is bound obligating the Company to accelerate the vesting of any Company OptionCompany.
(cd) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(cSection 2.3(d) of the Company Disclosure Schedule Letter sets forth a complete and accurate list as of the following information Reference Date of all outstanding Company Stock Awards granted under any Company Equity Plans or otherwise, indicating, with respect to each Company Warrant outstanding as Stock Award then outstanding, the type of awards granted, the date of this Agreement: holder (i) identified with his or her employee number), the name of the warrant holder; (ii) the maximum number of shares of Company Class A Common Stock subject to such Company Warrant; (iii) Stock Award, the plan under which such Company Stock Award was granted and the exercise or purchase price (if any), date of such grant, vesting schedule (including, whether the Company Warrant; Stock Award immediately vests upon a change in control (ivor term of similar meaning) and expiration date (if any). Each Company Option was granted in accordance with the Company Equity Plan with an exercise price per share that is equal to or greater than the fair market value of the underlying shares on the date of grant and has a grant date identical to the date on which the Company Board or its compensation committee actually awarded the Company Option. Each Company Option qualifies for the tax and accounting treatment afforded to such Company Warrant was granted; Option in Company’s financial statements, and does not trigger any liability for the Company Option holder under Section 409A of the Code.
(ve) Except the applicable vesting schedule and the extent Company Convertible Notes, as required pursuant to which such Company Warrant is vested and exercisable any Holdco Unit Exchange or as otherwise set forth in this Section 2.3, as of the date close of this Agreement; and (vii) business on the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreementsReference Date, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is are no: (i) outstanding subscriptionshares of capital stock of, optionor other equity interest in, callthe Company; (ii) outstanding subscriptions, warrant options, calls, warrants or right rights (whether or not currently exercisable) to acquire any shares of capital stock, restricted stock units, stock-based performance units or any other rights that are linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock or other securities of the any Acquired Company; (iiiii) outstanding securitysecurities, instrument instruments, bonds, debentures, notes or obligation obligations that is are or may become convertible into or exchangeable for any shares of the capital stock or other securities of the any Acquired Company; or (iiiiv) shareholder stockholder rights plan plans (or similar plan commonly referred to as a "“poison pill"”) or Contract Contracts under which the any Acquired Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of or other voting securities of, or ownership interests in, each of the Entities identified in Part 2.1(a)(i) Subsidiary of the Company Disclosure Schedule are has been duly authorized, validly issued, is fully paid and nonassessable nonassessable, was issued in accordance with applicable Legal Requirements, is not subject to or issued in violation of any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance, right of first refusal or any similar right, and are is owned by the Company, directly or indirectly, beneficially and of record by the Companyrecord, free and clear of all Encumbrances, transfer restrictions and any Encumbrancesother limitations or restrictions, except for such Encumbrances and transfer restrictions of general applicability as may be provided under the Securities Act or other applicable securities laws.
Appears in 1 contract
Sources: Merger Agreement (PetIQ, Inc.)
Capitalization, Etc. (a) The As of the date of this Agreement, the authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 35,000,000 shares of Company Common Stock, $.005 par value per share, of which, which 8,242,531 shares have been issued and are outstanding as of August 31May 1, 1998, 8,076,404 shares 1999 (which amount does not materially differ from the amount issued and number of shares outstanding as of the date of this Agreement) have been issued and are outstanding); and (ii) five hundred thousand (500,000) 5,000,000 shares of preferred stockPreferred Stock, $1.00 0.01 par value per share, of which no shares have been issued or are outstanding as outstanding. The Company does not hold any shares of the date of this Agreementits capital stock in its treasury. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable, and were issued in compliance with all applicable Federal and state securities laws and other applicable Legal Requirements and all requirements set forth in applicable Contracts. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; and (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) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations The Company is not under any obligation obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31May 1, 1998, 957,725 1999: (i) 2,355,342 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase shares of Company Common StockStock pursuant to the Company's 1987 Incentive Stock Plan, 1988 Incentive Stock Plan, 1992 Key Employee Stock Plan, 1992 Incentive Stock Plan, 1995 Director Option Plan and the 1997 Stock Plan (collectively, the "OPTION PLANS"); and (ii) 45,567 shares of Company Common Stock are reserved for future issuance pursuant to the Company's 1992 Employee Stock Purchase Plan (the "ESPP"). (Stock options granted by the Company pursuant to the Company's stock option plans that are currently in effect or that have been in effect and otherwise are referred to in this Agreement as "Company OptionsCOMPANY OPTIONS.") There are no Company Options other than Company Options outstanding under the Option Plans. Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998the date of this Agreement: (i) the particular plan (if any) pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.exercise
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Snap Appliances Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 15,000,000 shares of Company Common Stock, $.005 Stock (with no par value per sharevalue), of which, as of August 31, 1998, 8,076,404 which 4,673,175 shares (which amount does not materially differ from the amount have been issued and are outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) 5,000,000 shares of preferred stockPreferred Stock (with no par value), $1.00 par value per share, 231,000 of which no shares have been designated "Series A Preferred Stock" and none of which have been issued or are outstanding as of the date of this Agreement. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessablenon-assessable. Part 3.3 of the Disclosure Schedule provides an accurate and complete description of the terms of each repurchase option which is held by the Company and to which any of such shares is subject.
(b) The Company reserved 490,200 shares of Company Common Stock for issuance under its 1993 Flexible Stock Incentive Plan, of which options to purchase 208,625 shares are outstanding as of the date of this Agreement. As of the date of this Agreement, there the outstanding options are 1,151,109 vested with respect to 44,750 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any unvested with respect to 163,875 shares. Part 3.3 of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (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) there is no Acquired Corporation 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule accurately sets forth the following information forth, with respect to each Vested Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such and Unvested Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option that is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holderholder of such option; (ii) the total number of shares of Company Common Stock that are subject to such option and the number of shares of Company Common Stock subject with respect to which such Company Warrantoption is immediately exercisable; (iii) the exercise price of such Company Warrant; (iv) the date on which such option was granted and the term of such Company Warrant was grantedOption; (iv) the vesting schedule for such option; (v) the applicable vesting schedule and the extent to which exercise price per share of Company Common Stock purchasable under such Company Warrant is vested and exercisable as of the date of this Agreementoption; and (viivi) whether such option has been designated an "incentive stock option" as defined in Section 422 of the date on which such Company Warrant expiresCode. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) Part 3.3 of the Company Disclosure Schedule Schedule, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) to the knowledge of the Company, condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(ec) All outstanding shares of Company Common Stock, all outstanding Vested Company Options and all outstanding Unvested Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, except where the failure to so comply would not have a Material Adverse Effect on the Company, Parent, Merger Sub, or Surviving Corporation; and (ii) all requirements set forth in applicable Contracts.
(fd) All of the outstanding The Company has never repurchased, redeemed or otherwise reacquired any shares of capital stock of each or other securities of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Asyst Technologies Inc /Ca/)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five one hundred million (25,000,000100,000,000) shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand million (500,0005,000,000) shares of preferred stock, $1.00 par value $.001 per share. As of August 25, 2003, 27,096,401 shares of which Company Common Stock were issued and outstanding and no shares are outstanding as of the date Company’s preferred stock were issued or outstanding. No shares of this Agreementcapital stock of the Company are held in the Company’s treasury. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there There are 1,151,109 no shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) Company’s Subsidiaries. None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; right (ii) none whether pursuant to the certificate of incorporation or bylaws of the outstanding shares of Company Common Stock is subject or any Acquired Corporation Contract or any statute to which any right of first refusal in favor of the Company; Acquired Corporations is subject) and (iii) there is no Acquired Corporation Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging pledging, transferring or otherwise disposing of (or granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 3125, 1998, 957,725 2003: (i) 52,625 shares (which amount does not materially differ from the amount of Company Common Stock were subject to issuance pursuant to stock options granted and outstanding as under the Company’s 1997 Stock Option Plan; (ii) 2,361,928 shares of Company Common Stock were subject to issuance pursuant to stock options granted and outstanding under the date of this AgreementCompany’s 1999 Stock Option Plan; (iii) 2,096,568 shares of Company Common Stock are subject to issuance pursuant to stock options granted and outstanding options to purchase under the Company’s 2000 Non-Qualified Stock Option Plan; and (iv) 637,500 shares of Company Common StockStock were reserved for future issuance pursuant to the Company’s 1999 Employee Stock Purchase Plan (the “Company ESPP”), 473,969 of which were subject to issuance pursuant to stock purchase rights granted and outstanding under the Company ESPP. (Stock options granted by the Company pursuant to the Company's stock option plans 1997 Stock Option Plan, the 1999 Stock Option Plan and the 2000 Non-Qualified Stock Option Plan are referred to in this Agreement collectively herein as "“Company Options."”) Part 2.3(b)(i2.3(b) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 3127, 19982003: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this AgreementAugust 27, 2003; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options Company Options, and the standard form of all stock option agreements evidencing such options. There are no commitments or agreements of any character used to which evidence stock option grants under the Company is bound obligating stock option plans. The Company has not used any stock option agreements different from the standard form of stock option agreements used to evidence stock option grants under the Company stock option plans. Immediately prior to accelerate the vesting Effective Time, no more than an aggregate of any 4,784,000 shares of Company OptionCommon Stock shall have been issued upon exercise of Company Options during the Pre-Closing Period or shall be subject to issuance upon exercise of Company Options.
(c) As of the date of this AgreementExcept for Company Options, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to and stock purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of rights under the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreementsESPP, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or other than the Rights Agreement, any Contract under which any of the Company Acquired Corporations is or may become obligated to issue, deliver or sell or repurchase, redeem or otherwise issue acquire any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of any of the CompanyAcquired Corporations ((i) through (iv) collectively, “Stock Rights”).
(ed) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants Options and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) . All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule Company’s Subsidiaries have been duly authorized and are validly issued, are fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 30,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 shares which (which amount does not materially differ from the amount x) 8,045,968 Shares had been issued and were outstanding as of the date of this Agreementhereof (not including Shares held in treasury) have and (y) 290,983 Shares had been issued and are outstandingwere held by the Company in its treasury as of the date hereof; and (ii) five hundred thousand (500,000) 10,000,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no shares have been designated or issued and of which no shares are outstanding as of the date of this Agreementoutstanding. All of the issued and outstanding shares of Company Common Stock have been Shares are duly authorized and validly issued, issued and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(ib) None of the outstanding shares equity interests of Company Common Stock is the Acquired Companies are entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock is , or are subject to any right of first refusal in favor of any Acquired Company. There are no outstanding bonds, debentures, notes or other indebtedness of any Acquired Company having a right to vote on any matters on which the Company; and (iii) there holders of equity interests of the Acquired Companies have a right to vote. None of the Acquired Companies is no Acquired Corporation 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 from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation equity interests of the MergerAcquired Companies. No Acquired Company is under any obligation, (A) the shares of Parent Common Stock issued in exchange for or bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as equity interests of the date Acquired Companies. The Shares constitute the only outstanding class of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) securities of the Company Disclosure Schedule sets forth registered under the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company OptionSecurities Act.
(c) As of the date of this Agreementhereof, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are 271,876 Shares were subject to issuance pursuant to outstanding warrants to purchase Company Common Stock Options ("and each such Company Warrants"). Part 2.3(c) of the Option includes a tandem, cash-settled Company Disclosure Schedule sets forth the following information SAR with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the same number of shares of shares, where the Company Common Stock subject to such SAR is automatically terminated if the Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule Option is exercised and the extent to which such Company Warrant Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which automatically terminated if the Company has ever grantedSAR is exercised).
(d) Except as set forth in Parts 2.3(b), 2.3(c) or Section 2.3(d) of the Company Disclosure Schedule contains a true, correct and complete list, as of the date hereof, of (i) the name of each holder of Company Options and Company SARs, (ii) the number of outstanding Company Options and Company SARs held by such holder, (iii) the grant date of each such Company Option and Company SAR, (iv) the exercise price of each such Company Option and Company SAR, (v) the expiration date of each Company Option and Company SAR, (vi) the vesting schedule of each Company Option and Company SAR, and (vii) the Company Equity Plan or other Contract pursuant to which each such Company Option and Company SAR was granted. Except as set forth in this Section 2.3, on Section 2.3(d) of the Company Disclosure Schedule and those Company Options and Company SARs issued after the date hereof as expressly permitted by Section 4.2(b)(iii) and any Shares issued upon exercise of Company Options or Company SARs outstanding as of the date hereof, there is are no: (i) outstanding subscriptionshares of capital stock of or other securities of any Acquired Company; (ii) outstanding subscriptions, optionoptions, callcalls, warrant warrants or right rights (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, stock-based performance unit or any other right that is linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock or other securities of the any Acquired Company, in each case other than derivative securities not issued by an Acquired Company; (iiiii) issued, reserved for issuance, outstanding or authorized stock option, stock appreciation, phantom stock, profit participation or similar rights or equity-based awards with respect to any Acquired Company; (iv) outstanding securitysecurities, instrument instruments, bonds, debentures, notes or obligation obligations that is are or may become convertible into or exchangeable for any shares of the capital stock or other securities of the any Acquired Company, in each case other than convertible or exchangeable securities not issued by an Acquired Company; (iiiv) shareholder stockholder rights plan plans (or similar plan plans commonly referred to as a "“poison pill"”) or Contract Contracts under which the any Acquired Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (ivvi) condition voting trusts or circumstance that may give rise other Contracts to or provide which the Company is a basis for the assertion of a claim by any Person party with respect to the effect that such Person is entitled to acquire or receive any shares voting of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 1 contract
Sources: Merger Agreement (Gaming Partners International CORP)
Capitalization, Etc. (a) The As of the date of this Agreement, the authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 50,000,000 shares of Company Common Stockcommon stock, $.005 par value $0.001 per share, of which, as of August 31, 1998, 8,076,404 which 10,000,000 shares (which amount does not materially differ from the amount are issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) no shares of preferred stock, $1.00 par value per share, . No dividends have ever been paid or declared with respect to any shares of which no shares are outstanding as of the date of this AgreementCompany Capital Stock. All of the outstanding shares of Company Common Capital Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As Except as set forth in Part 2.3(a) of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
Disclosure Schedule: (i) None none of the outstanding shares of Company Common Capital Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii) other than the rights created pursuant to this Agreement, none of the outstanding shares of Company Common Capital Stock is subject to any right of first refusal or similar right in favor of the CompanyCompany or any other Person; and (iii) there is no Acquired Corporation Contract (other than this Agreement) 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 Capital Stock. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Company Common StockCapital Stock or any other securities. No shares of Company Capital Stock are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other Acquired Corporation Contract. None of the Acquired Corporations is or may become obligated to provide board of directors “observer” rights, visitation rights or similar rights to any shareholder or other Person. Part 2.3(a) of the Disclosure Schedule lists each holder of shares of Capital Stock of the Company, together with the number of shares held by such holder and the portion of the Adjusted Shareholder Consideration to be received by such holder pursuant to Section 1.5(c)(iii) above. Part 2.3(a) of the Disclosure Schedule also lists each holder of a Company Option entitled to receive any portion of the Adjusted Optionholder Consideration, together with the relevant shares subject to such Company Option, the exercise price for such shares, and the portion of the Adjusted Optionholder Consideration to be received by such holder pursuant to Section 1.5(c)(ii) above.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from Subject only to the amount subject to options outstanding condition subsequent that the Merger occur as of the date of contemplated by this Agreement) , the Company has terminated all Company Option Plans and all Company Options and no holder or former holder of Company Common Stock are subject Options has any right with respect to issuance pursuant to outstanding options to purchase the Acquired Corporations or the Merger Consideration. All Company Common Stock. (Stock options Options were granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) terms of the Company Disclosure Schedule sets forth the following information with respect to each a Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expiresPlan. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options Option Plans, and the form forms of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company OptionOptions. Part 2.3(b) of the Disclosure Schedule sets forth the name of each holder of a Company Option outstanding immediately prior to the Effective Time, together with an indication of the number of shares subject to such Company Option and confirmation that each such Company Option will be terminated prior to the Effective Time.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Except for Company Common Stock are subject Options to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except be terminated as set forth in Parts 2.3(b)the preceding paragraph, 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which any of the Company Acquired Corporations is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive (A) any shares of capital stock or other securities of any of the CompanyAcquired Corporations, or (B) any portion of any consideration payable in connection with the Merger.
(ed) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary stock, options, warrants and other securities of the Company have been Acquired Corporations, and all other securities ever issued or granted by any of the Acquired Corporations, were issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable ContractsContracts (including any rights of first refusal or similar provisions or requirements).
(fe) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are Acquired Corporations have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof, and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
(f) Except as set forth in Part 2.3(f) of the Disclosure Schedule, none of the Acquired Corporations has ever repurchased, redeemed or otherwise reacquired any shares of its capital stock or other securities. Any securities reacquired by the Company or any other Acquired Corporation were reacquired in compliance with (i) all applicable Legal Requirements, and (ii) all requirements set forth in applicable restricted stock purchase agreements and other applicable Contracts.
Appears in 1 contract
Sources: Merger Agreement (Verity Inc \De\)
Capitalization, Etc. (a) The authorized capital stock and issued and outstanding shares of each of the Company consists of: Acquired Companies is set forth in Part 2.3(a) of the Disclosure Schedule. The rights, restrictions, privileges and preferences of such capital stock are as stated in the Acquired Companies’ Organizational Documents that were made available to the Purchaser. Except as set forth in Part 2.3(a) of the Disclosure Schedule, the Seller has good and valid title to the Shares free and clear of any Encumbrances.
(b) All of the Equity Interests in any of the Acquired Companies (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of the date of this Agreement. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and (ii) are fully paid and nonassessablenon-assessable, and (iii) have been issued in full compliance with all applicable securities laws and other applicable Legal Requirements. As The Seller has made available to the Purchaser accurate and complete copies of the date stock certificates evidencing the Shares.
(c) Except as set forth in Part 2.3(c) of this Agreementthe Disclosure Schedule, there are 1,151,109 shares of Company Common Stock held is no (i) outstanding capital stock or other security subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any Equity Interests in treasury by the Company and no shares of stock held in treasury by any of the Acquired Companies; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any Equity Interests in any of the Acquired Companies; (iii) Contract (other than this Agreement) under which the Seller or any Acquired CorporationsCompanies are or may become obligated to sell or otherwise issue any Equity Interests in any of the Acquired Companies; or (iv) condition or circumstance that may reasonably be expected to give rise to the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any Equity Interests in any of the Acquired Companies.
(d) Except as set forth in Part 2.3(d) of the Disclosure Schedule: (i) None none of the outstanding shares Equity Interests in any of Company Common Stock is the Acquired Companies are entitled or subject to any preemptive right, right of participationfirst refusal, right of maintenance participation, or any similar right; and (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) there is no Acquired Corporation 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued Equity Interests in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under Companies. No Equity Interests in any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock Acquired Companies are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable reserved for any shares of the capital stock or other securities of the Company; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Companyfuture issuances.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary GPH owns 100% of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirementsoutstanding Equity Interests of Gen-Probe Transplant Diagnostics, and (ii) all requirements set forth in applicable ContractsInc. Gen-Probe Transplant Diagnostics, Inc. owns 100% of the outstanding Equity Interests of Gen-Probe Belgium BVBA.
(f) All GTI owns 100% of the outstanding shares Equity Interests of capital stock of each Gen-Probe GTI Diagnostics, Inc. Gen-Probe GTI Diagnostics, Inc. owns 100% of the Entities identified outstanding Equity Interests of GTI Diagnostics GmbH and Gen-Probe GTI Diagnostics KK.
(g) Since December 15, 2010, the Acquired Companies have not repurchased, redeemed or otherwise reacquired any Equity Interests in any of the Acquired Companies. All Equity Interests reacquired by the applicable Acquired Company at any time were acquired in full compliance with applicable provisions of all applicable Legal Requirements.
(h) The Acquired Companies’ Indebtedness as of November 24, 2012 is set forth on Part 2.1(a)(i2.3(h) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any EncumbrancesSchedule.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twentyseventy-five million (25,000,00075,000,000) shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which eight million one hundred forty-three thousand three hundred seventeen (8,143,317) shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstandingoutstanding as of the close of business on the day immediately preceding the date of this Agreement and none of which are held in treasury and none of which are Restricted Securities; and (ii) five hundred thousand million (500,0005,000,000) shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no shares have been issued or are outstanding as of the date of this Agreementoutstanding. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(b) Except as set forth in Part 2.3(b) of the Company Disclosure Schedule: (i) None none of the outstanding shares of Company Common Stock is are entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock is are subject to any right of first refusal in favor of the Company; and (iii) there are no outstanding bonds, debentures, notes or other indebtedness of the Acquired Corporations having a right to vote on any matters on which the shareholders of the Company have a right to vote; (iv) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation Except as set forth in Part 2.3(b) of the MergerCompany Disclosure Schedule, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None none of the Acquired Corporations is under any obligation obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Company Common StockStock or other securities. The Company Common Stock constitutes the only outstanding class of securities of the Company or its Subsidiaries registered under the Securities Act.
(bc) As of August 31the date of this Agreement: (i) 29,760 shares of Company Common Stock are authorized for future issuance under the 2012 Director Option Plan, 1998, 957,725 shares (none of which amount does not materially differ from the amount are subject to options issuance pursuant to Company Options granted and outstanding under the 2012 Director Option Plan; (ii) zero (0) shares of Company Common Stock are authorized for future issuance under the 2002 Director Option Plan; (iii) 212,500 shares of Company Common Stock are authorized for future issuance under the 2010 Plan, none of which are subject to issuance pursuant to Company Options granted and outstanding under the 2010 Plan; and (iv) 54,136 shares of Company Common Stock are authorized for future issuance under the 2006 Plan, none of which are subject to issuance pursuant to Company Options granted and outstanding under the 2006 Plan. The Company has delivered or otherwise made available to Parent or Parent’s Representatives copies of all Company Equity Plans covering the Company Options outstanding as of the date of this Agreement) Agreement and the forms of all stock and stock option agreements evidencing such Company Options. The exercise price of each Company Option is not less than the fair market value of a share of Company Common Stock are subject to issuance pursuant to outstanding options to purchase as of the grant date of such Company Common Stock. (Stock options granted by the Company Option as determined pursuant to the Company's stock option plans are referred terms of each Company Equity Plan, as applicable, on the date of grant of such Company Option, and each Company Option was granted in compliance in all material respects with all applicable Legal Requirements and all of the terms and conditions of the applicable Company Equity Plan pursuant to in this Agreement as "which it was issued and has a grant date which was approved by the Board of Directors of the Company Options.") or a committee thereof no later than the grant date. The Company has delivered or other made available to Parent or Parent’s Representatives copies of the Company ASOP and applicable offering documents. Part 2.3(b)(i2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding forth, as of August 31the date of this Agreement, 1998: (i) a list of all holders of Company Options, the particular plan pursuant to which such Company Option was granted; (ii) the name date of the optionee; (iii) grant, the number of shares of Company Common Stock subject to such Company Option; (iv) Option and the exercise price of such Company Option; (v) the date on per share at which such Company Option was granted; (vimay be exercised. Other than as set forth in this Section 2.3(c) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). in Part 2.3(c) of the Company Disclosure Schedule sets forth the following information Schedule, there are no outstanding or authorized stock option, stock appreciation, phantom stock, profit participation or similar rights or equity-based awards with respect to each Company Warrant outstanding as any of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever grantedAcquired Corporations.
(d) All of the outstanding capital stock or other voting securities of, or ownership interests in, the Subsidiary of the Company are owned by the Company, directly or indirectly, beneficially and of record, free and clear of all Encumbrances and transfer restrictions, except for such Encumbrances and transfer restrictions of general applicability as may be provided under the Securities Act or other applicable securities laws. Except as set forth in Parts 2.3(b), this Section 2.3 or in Part 2.3(c) or 2.3(d) of the Company Disclosure Schedule Schedule, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, stock-based performance unit or any other right that is linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock or other securities of any of the CompanyAcquired Corporations; (ii) outstanding security, instrument instrument, bond, debenture, note or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; or (iii) shareholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which any of the Company Acquired Corporations is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance . The Board of Directors of the Company has taken all necessary action so that may give rise to or provide a basis for the assertion of a claim by any Person Takeover Laws applicable to the effect that such Person is entitled Company do not, and will not, apply to acquire this Agreement or receive any shares the Transactions contemplated hereby. Each outstanding share of capital stock of the Subsidiary of the Company is duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights. None of the Acquired Corporations has any outstanding equity compensation plans or policies relating to the capital stock of, or other securities equity or voting interests in, the Subsidiary of the Company.
(e) All outstanding shares Except as described in this Section 2.3 and changes since the date of this Agreement resulting from the exercise of Company Common StockOptions outstanding at such date, all outstanding and except for issuances expressly permitted under Section 4.2, as of the close of business on the day immediately preceding the date of this Agreement, there were no other obligations by the Company Optionsor its Subsidiary to make any payments based on the price or value of any Company securities or dividends paid thereon or revenues, all outstanding earnings or financial performance or any other attribute of the Company. Since the close of business on the day immediately preceding the date of this Agreement, neither the Company Warrants and all outstanding shares nor any of capital stock its Subsidiaries has (1) issued any securities or incurred any obligation to make any payments based on the price or value of each Subsidiary any securities or dividends paid thereon or revenues, earning or financial performance or any other attribute of the Company have been issued and granted in compliance with (i) all applicable securities laws and or any of its Subsidiaries, other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All than pursuant to the Company Options referred to above that were outstanding as of the outstanding close of business on the day immediately preceding the date of this Agreement, or (2) established a record date for, declared, set aside for payment or paid any dividend on, or made any other distribution in respect of, any shares of its capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrancesstock.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 100,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 34,431,768 shares (which amount does not materially differ from the amount are issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of the date of this Agreement; and
(ii) 10,000,000 shares of Preferred Stock, $0.00001 par value per share, of which 1,992.5 shares of Series A Preferred Stock and 1,705 shares of Series B Preferred Stock are issued and are outstanding as of the date of this Agreement. Except as set forth in Part 2.3(a)(i) of the Disclosure Schedule, the Company does not hold any shares of its capital stock in its treasury. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there There are 1,151,109 no shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
. Except as set forth in Part 2.3(a)(ii) of the Disclosure Schedule: (iA) None none of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (iiB) none of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor of the Company; and (iiiC) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Company Common StockStock or other securities. Part 2.3(a)(iii) of the Disclosure Schedule accurately and completely describes all repurchase rights held by the Company with respect to shares of Company Common Stock (including shares issued pursuant to the exercise of stock options), and specifies which of those repurchase rights are currently exercisable.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement: (i) 8,096,600 shares of Company Common Stock are subject to issuance pursuant to stock options granted and outstanding options under the Company’s 1997 Stock Option Plan (the “1997 Plan”) and/or the Company’s 2002 Stock Plan (the “2002 Plan”); (ii) 11,675,521 shares of Company Common Stock are reserved for future issuance pursuant to the Company Warrants; and (iii) 1,738,239 shares of Company Common Stock are reserved for future issuance pursuant to other agreements entered into by the Company. (Options to purchase shares of Company Common Stock. Stock (Stock options whether granted by the Company pursuant to the Company's stock option plans 1997 Plan, the 2002 Plan, assumed by the Company in connection with any merger, acquisition or similar transaction or otherwise issued or granted) are referred to in this Agreement as "“Company Options”.") Part 2.3(b)(i2.3(b) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998the date of this Agreement: (iA) the particular plan Option Plan (if any) pursuant to which such Company Option was granted; (iiB) the name of the optionee; (iiiC) the number of shares of Company Common Stock subject to such Company Option; (ivD) the exercise price of such Company Option; (vE) the date on which such Company Option was granted; (viF) the applicable vesting schedule schedule, and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (viiG) the date on which such Company Option expires. The ; and (H) whether such Company has delivered to Parent accurate and complete copies of all Option is an “incentive stock option plans pursuant to which option” (as defined in the Company has ever granted Code) or a non-qualified stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants")option. Part 2.3(c2.3(b) of the Company Disclosure Schedule also sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i1) the name of the warrant holdergrantee; (ii2) the number of shares of Company Common Stock subject to such Company Warrant; (iii3) the exercise price of such Company Warrant; (iv4) the date on which such Company Warrant was granted; (v5) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii6) the date on which such Company Warrant expires. The Company has delivered made available to Parent accurate and complete copies of the 1997 Plan, the 2002 Plan and the forms of all agreements, certificates stock option agreements evidencing outstanding Company Options. The Company has made available to Parent accurate and other documents evidencing all warrants which complete copies of the Company has ever grantedWarrants.
(dc) Except as set forth in Parts Part 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule Schedule, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; (iii) shareholder stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which any of the Company Acquired Corporations is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of any of the CompanyAcquired Corporations from an Acquired Corporation.
(ed) All Except as set forth in Part 2.3(d) of the Disclosure Schedule, all outstanding shares of Company Common Stock, all outstanding Company Optionsoptions, all outstanding Company Warrants warrants and all outstanding shares of capital stock of each Subsidiary other securities of the Company Acquired Corporations have been issued and granted in compliance with with: (i) all applicable securities laws and other applicable Legal Requirements, ; and (ii) all requirements set forth in applicable Contracts.
(fe) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are Company’s Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof, and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 1 contract
Capitalization, Etc. (a) The total authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share150,000,000 Shares, of whichwhich 16,044,813.5554 Shares had been issued and were outstanding and 10,973,011.9622 held in treasury, in each case, as of the close of business on August 312, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding2023; and (ii) five hundred thousand (500,000) 2,500,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no zero shares are had been issued and were outstanding as of the date close of this Agreementbusiness on August 2, 2023. The total authorized capital stock and ordinary shares, together with all issued and outstanding shares thereof, of the other Acquired Companies are set forth on Section 3.3(a) of the Company Disclosure Schedule, which shares constitute all of the outstanding capital stock, ordinary shares or other equity interests of the other Acquired Companies. All of the outstanding shares of the capital stock of the Company Common Stock and the outstanding shares of capital stock, ordinary shares or other equity interests of the other Acquired Companies have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock is capital stock, ordinary shares or other equity interests of the Acquired Companies are entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock is capital stock, ordinary shares or other equity interests of the Acquired Companies are subject to any right of first refusal in favor of the any Acquired Company; and (iii) there are no outstanding bonds, debentures, notes or other indebtedness of any Acquired Company having a right to vote on any matters on which the equityholders of the Acquired Companies have a right to vote; and (iv) there is no Acquired Corporation Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation capital stock, ordinary shares or other equity interests of the MergerAcquired Companies. No Acquired Company is under any obligation, (A) the shares of Parent Common Stock issued in exchange for or bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of capital stock, ordinary shares or other equity interests of the Acquired Companies or to make any future investment in or capital contribution to any Person. The Shares constitute the only outstanding class of securities of any Acquired Company Common Stockregistered under the Securities Act.
(bc) As of the close of business on August 312, 1998, 957,725 shares 2023: (which amount does not materially differ from the amount i) 1,332,068 Shares were subject to options issuance pursuant to Company Options granted and outstanding under the Company Equity Plans, (ii) 1,155,349 Shares were subject to issuance pursuant to Company RSUs and Company PSUs granted and outstanding under the Company Equity Plans, (iii) 443,843 Shares were reserved for future issuance under Company Equity Plans and (iv) 118,648 Shares were reserved for future issuance under the Company ESPP. As of the close of business on August 2, 2023, the weighted average exercise price of the Company Options outstanding as of that date was $9.55. Other than as set forth in this Section 3.3(c), there are no issued, reserved for issuance (or promised for issuance or grant), outstanding or authorized stock option, stock appreciation, phantom stock, profit participation or similar rights or equity-based awards with respect to any Acquired Company.
(d) Except (y) as set forth in this Section 3.3, and (z) Company Options, Company RSUs and Company PSUs outstanding as of the date of this Agreement) of Company Common Stock , there are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscriptionshares of capital stock of or other securities of any Acquired Company; (ii) outstanding subscriptions, optionoptions, callcalls, warrant warrants or right rights (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, stock-based performance unit or any other right that is linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock or other securities of the any Acquired Company, in each case other than derivative securities not issued by an Acquired Company; (iiiii) outstanding securitysecurities, instrument instruments, bonds, debentures, notes or obligation obligations that is are or may become convertible into or exchangeable for any shares of the capital stock or other securities of the any Acquired Company; or (iiiiv) shareholder rights plan plans (or similar plan plans commonly referred to as a "“poison pill"”) or Contract Contracts under which the any Acquired Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(iSection 3.3(e) of the Company Disclosure Schedule are validly issuedsets forth, fully paid as of the close of business on August 2, 2023, a correct and nonassessable complete list of all outstanding Company Options, Company RSUs and are owned beneficially Company PSUs, and with respect to each such award, to the extent applicable, (i) the holder (name or employee identification number), (ii) the type of record award, (iii) the date of grant, (iv) the number of Shares underlying such award, (v) whether such award is intended to qualify as an “incentive stock option” under Section 422 of the Code, (vi) the Company Equity Plan pursuant to which the award was granted, and (vii) the exercise price per Share. 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, free Board of Directors (or a duly constituted and clear authorized committee thereof or other authorized designee) and any required stockholder approval by the necessary number of votes or written consents. The Company does not have any liability in respect of any EncumbrancesCompany Option that was granted with a per share exercise price that was less than the fair market value of a Share on the applicable Company Option grant date, and the Company has not granted any Company Options that are subject to the provisions of Section 409A of the Code. The Company has the requisite authority under the terms of the applicable Company Equity Plan, the applicable award agreements, and any other applicable Contract to take the actions contemplated by Section 2.8.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued and outstanding as of On the date of this Agreement) , the authorized capital stock of Newco consists of 100 shares of Newco Common Stock, of which 100 shares of Newco Common Stock have been issued and are outstanding; . Immediately prior to the Distribution, all the outstanding shares of Newco Common Stock will be owned directly Table of Contents or indirectly by Fox free and clear of any Encumbrance, other than restrictions under applicable securities laws. Immediately following the Distribution, (i) there will be outstanding a number of shares of Newco Common Stock determined in accordance with this Agreement and the Distribution Agreement and (ii) five hundred thousand (500,000) no shares of preferred stock, $1.00 par value per share, Newco Common Stock will be held in Newco’s treasury. As of which no shares are outstanding the date hereof and as of the date of this Agreement. All Effective Time, all of the outstanding shares of Company Newco Common Stock have been and will be duly authorized and validly issued, and are and will be fully paid and nonassessable. As of On the date of this Agreement, there are 1,151,109 the authorized capital stock and the issued and outstanding shares of Company Common Stock held each Direct Sales Entity (and each Subsidiary of a Direct Sales Entity) are as set forth in treasury by the Company and no shares of stock held in treasury by any Section 2.3(a) of the other Acquired Corporations.
(i) None Fox Disclosure Letter. As of the date hereof and as of the Effective Time, all of the outstanding shares of Company capital stock, membership interests or other securities of each Direct Sales Entity (and each Subsidiary of a Direct Sales Entity) are and will be owned directly or indirectly by Fox free and clear of any Encumbrance, other than restrictions under applicable securities laws.
(b) Except as set forth in Section 2.3(b) of the Fox Disclosure Letter: (i) none of the outstanding shares of Newco Common Stock or capital stock, membership interests or other securities of any of the A&S Companies is entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Newco Common Stock or capital stock, membership interests or other securities of any of the A&S Companies is subject to any right of first refusal in favor of the Companyrefusal; and (iii) there is no Acquired Corporation Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Newco Common Stock. Upon consummation Stock or capital stock, membership interests or other securities of any of the MergerA&S Companies. None of the A&S Companies is under any obligation, (A) the shares of Parent Common Stock issued in exchange for or is bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Newco Common Stock.
(b) As Stock or capital stock, membership interests or other securities of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as any of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company OptionA&S Companies.
(c) As of the date of this AgreementThere are no outstanding stock appreciation, six hundred seventyphantom stock, profit participation or similar rights or equity-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information based awards with respect to each Company Warrant outstanding as (i) any shares of capital stock or other equity interests of any of the A&S Companies, or the value thereof or (ii) the A&S Business, or any part thereof.
(d) As of the date of this Agreement: (i) the name an aggregate of the warrant holder; 676,867 Fox Options held by Newco Employees are issued and outstanding, with a weighted average exercise price of $50.54, and (ii) the number an aggregate of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule 222,833 Fox RSUs held by Newco Employees are issued and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever grantedoutstanding.
(de) Except as set forth in Parts 2.3(bSection 2.3(a), 2.3(c) or 2.3(d) as permitted from and after the date of the Company Disclosure Schedule this Agreement pursuant to Section 4.2, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock stock, membership interests or other securities of any of the CompanyA&S Companies; (ii) outstanding security, bond, debenture, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock stock, membership interests or other securities of any of the CompanyA&S Companies or that has the right to vote on any matter on which the stockholders of Newco have the right to vote; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which any of the Company A&S Companies is or may become obligated to sell or otherwise issue any shares of its capital stock stock, membership interests or any other securities; or (iv) condition shareholder rights plan or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Companyagreement (i.e., “poison pill”).
(ef) All outstanding shares of Company Newco Common Stock, all Stock and other outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary securities of the Company A&S Companies have been issued and granted in compliance with in all material respects with: (i) all applicable securities laws and other applicable Legal Requirements, Requirements and (ii) all requirements set forth in applicable Contracts.
(fg) All of the outstanding shares of capital stock stock, membership interests or other equity interests, as the case may be, of each of Newco’s Subsidiaries and the Direct Sales Entities identified in Part 2.1(a)(i(and their Subsidiaries) of the Company Disclosure Schedule are have been duly authorized and validly issued, are fully paid and nonassessable (to the extent applicable) and are free of preemptive rights, with no personal liability attaching to the ownership thereof, and are, or following the Internal Restructuring will be owned beneficially and of record record, directly or indirectly, by Newco or the CompanyDirect Sales Entity Sellers, as applicable, free and clear of any Encumbrances, other than restrictions under applicable securities laws.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: of (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share75,000,000 Shares, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount 33,466,133 Shares had been issued and were outstanding as of the date close of this Agreement) have been issued and are outstanding; business on February 1, 2023, of which 1,186,470 Shares were Company Share Awards subject to vesting or employment- or service-based forfeiture conditions and (ii) five hundred thousand (500,000) 1,000,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no shares are outstanding as outstanding. From the close of business on February 1, 2023 through the date of this Agreement, there have been no issuances of any Shares. All of the outstanding Shares and the outstanding shares of Company Common Stock capital stock or equity interests of the other Acquired Companies have been duly authorized and validly issued, and are fully paid and nonassessable. As .
(b) (i) Other than forfeiture rights in favor of the Company in respect of the existing Company Share Awards as of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None none of the outstanding shares of Company Common Stock is capital stock or equity interests of the Acquired Companies are entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock is capital stock or equity interests of the Acquired Companies are subject to any right of first refusal in favor of the any Acquired Company; and (iii) there are no outstanding bonds, debentures, notes or other indebtedness of any Acquired Company having a right to vote on any matters on which the stockholders of the Acquired Companies have a right to vote; and (iv) there is no Acquired Corporation Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem capital stock or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None equity interests of the Acquired Corporations Companies. No Acquired Company is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as capital stock or equity interests of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expiresAcquired Companies. The Company has delivered to Parent accurate and complete copies Shares constitute the only outstanding class of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements securities of any character to which Acquired Company registered under the Company is bound obligating the Company to accelerate the vesting of any Company OptionSecurities Act.
(c) As of the date close of this Agreementbusiness on February 1, six hundred seventy-nine thousand2023, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to 3,938,536 Shares were reserved for future issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of under the Company Disclosure Schedule sets forth Equity Plan. Other than the following information Company Share Awards, there are no issued, reserved for issuance, outstanding or authorized stock option, stock appreciation, phantom stock, profit participation or similar rights or equity-based awards with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever grantedany Acquired Company.
(d) Except as set forth in Parts 2.3(b)this Section 3.3, 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is are no: (i) outstanding subscriptionshares of capital stock or other securities of any Acquired Company; (ii) outstanding subscriptions, optionoptions, callcalls, warrant warrants or right rights (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, stock-based performance unit or any other right that is linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock or other securities of the any Acquired Company, in each case other than derivative securities not issued by an Acquired Company; (iiiii) outstanding securitysecurities, instrument instruments, bonds, debentures, notes or obligation obligations that is are or may become convertible into or exchangeable for any shares of the capital stock or other securities of the any Acquired Company; or (iiiiv) shareholder stockholder rights plan plans (or similar plan plans commonly referred to as a "“poison pill"”) or Contract Contracts under which the any Acquired Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares The Company has delivered or made available a true and correct listing of Company Common Stock, all Persons who hold outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary Share Awards as of the close of business on February 1, 2023, indicating, with respect to each Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal RequirementsShare Award, and (ii) all requirements set forth in applicable Contractsthe number of Shares subject thereto.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 1 contract
Sources: Merger Agreement (AlerisLife Inc.)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued and outstanding as As of the date of this Agreement, the authorized capital stock of CGI consists of (i) 100,000,000 shares of CGI Common Stock, of which 2,307,612 shares have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of the date of this AgreementAgreement and (ii) 9,764,000 shares of CGI Preferred Stock, of which no shares have been issued or are outstanding. CGI does not hold any shares of its capital stock in its treasury. All of the outstanding shares of Company CGI Common Stock have been duly authorized and validly issued, issued and are fully paid and nonassessable. As , and were not issued in violation of the date material terms of this Agreementany agreement or understanding binding upon CGI at the time at which they were issued and were issued in compliance with the Certificate of Incorporation, there are 1,151,109 shares bylaws and other organizational documents of Company Common Stock held in treasury by the Company CGI and no shares of stock held in treasury by any of the other Acquired Corporationsall applicable laws.
(ib) None Except as set forth in Part 3.3(b) of the CGI Disclosure Schedule, none of the outstanding shares of Company CGI Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii. Except as set forth in Part 3.3(b) of the CGI Disclosure Schedule, none of the outstanding shares of Company CGI Common Stock is subject to any right of first refusal in favor of the Company; and (iii) CGI. Except as contemplated herein, there is no Acquired Corporation CGI 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 CGI Common Stock. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for and CGI is not under any shares of Company Common Stock that are subject to a obligation, nor is bound by any Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company CGI Common Stock.
Stock or other securities. Part 3.3(b) of the CGI Disclosure Schedule accurately and completely describes all repurchase rights held by CGI with respect to shares of CGI Common Stock (bincluding shares issued pursuant to the exercise of stock options) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) , and specifies, with respect to such repurchase rights, each holder of Company CGI Common Stock, the date of purchase of such CGI Common Stock, the number of shares of CGI Common Stock are subject to issuance pursuant to outstanding options to such repurchase rights, the purchase Company price paid by such holder, the vesting schedule under which such repurchase rights lapse, and whether the holder of such CGI Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(ifiled an election under Section 83(b) of the Company Code with respect to such CGI Common Stock within 30 days of purchase.
(c) Except for the 2011 Equity Incentive Plan of CGI, as amended, and the 2008 Stock Option Plan of CGI (collectively, the “CGI Stock Plans”) and the awards issued thereunder, CGI does not have any stock option plan or any other plan, program, agreement or arrangement providing for any equity or equity-based compensation for any Person. Part 3.3(c) of the CGI Disclosure Schedule sets forth the following information with respect to each Company CGI Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement: (i) the name of the optionholder; and (viiii) the number of shares of CGI Common Stock subject to such CGI Option; (iii) the exercise price of such CGI Option; (iv) the date on which such CGI Option was granted; (v) the applicable vesting schedule, including the number of vested and unvested shares; (vi) the date on which such CGI Option expires; and (vii) whether such CGI Option is an “incentive stock option” (within the meaning of Section 422 of the Code) or a non-statutory stock option; and (viii) whether and to what extent the exercisability of each Company Option expireswill be accelerated upon consummation of the Contemplated Transactions or any termination of employment thereafter. The CGI has made available to the Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company CGI has ever granted stock options options, and the form forms of all stock option agreements evidencing such options. There are no commitments or agreements CGI has provided the Company with copies of any character valuation reports, to which the Company is bound obligating extent obtained, utilized for determining the Company to accelerate exercise price of each CGI Option for purposes of demonstrating compliance with Section 409A of the vesting Code. All grants of any Company OptionCGI Options were made in compliance in all material respects with all applicable laws.
(cd) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c3.3(d) of the Company CGI Disclosure Schedule sets forth the following information with respect to each Company CGI Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holderwarrantholder; (ii) the number of shares of Company CGI Common Stock subject to such Company CGI Warrant; (iii) the exercise price of such Company CGI Warrant; (iv) the date on which such Company CGI Warrant was granted; and (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company CGI Warrant expires. The Company CGI has delivered or made available to Parent the Company accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever grantedCGI Warrants.
(de) Except for the outstanding CGI Options, CGI Warrants or as set forth in Parts 2.3(b), 2.3(c) or 2.3(don Part 3.3(e) of the Company CGI Disclosure Schedule Schedule, there is no: (i) outstanding subscription, option, call, warrant warrant, commitment or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the CompanyCGI; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the CompanyCGI; (iii) shareholder stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which the Company CGI is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the CompanyCGI. There are no outstanding or authorized stock appreciation, phantom stock, profit participation or other similar rights with respect to CGI.
(ef) All outstanding shares of Company CGI Common StockStock and options, all outstanding Company Options, all outstanding Company Warrants warrants and all outstanding shares other securities of capital stock of each Subsidiary of the Company CGI have been issued and granted in material compliance with (i) all applicable securities laws and other applicable Legal Requirements, Requirements and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share100,000,000 Shares, of which, as of August 31, 1998, 8,076,404 which 36,644,755 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstandingoutstanding as of the close of business on the day immediately preceding the date of this Agreement and 22,108,788 shares have been issued and are held as treasury shares; and (ii) five hundred thousand (500,000) 5,000,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no shares have been issued or are outstanding as of the date of this Agreementoutstanding. All of the outstanding shares of Company Common Stock Shares have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(b) Except as set forth in Part 3.3(b) of the Company Disclosure Schedule: (i) None none of the outstanding shares of Company Common Stock is Shares are entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock is Shares are subject to any right of first refusal in favor of the Company; and (iii) there are no outstanding bonds, debentures, notes or other indebtedness of the Acquired Corporations having a right to vote on any matters on which the stockholders of the Company have a right to vote; and (iv) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such ContractShares. None of the Acquired Corporations is under any obligation obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31Shares or other securities, 1998, 957,725 shares (which amount does not materially differ from except for the amount subject Company’s right to options outstanding as repurchase or reacquire Restricted Shares held by an employee of the date Company upon termination of this Agreement) such employee’s employment or upon any other forfeiture of a vesting condition. The Company Common Stock are subject to issuance pursuant to constitutes the only outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) class of securities of the Company Disclosure Schedule sets forth or its Subsidiaries registered under the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company OptionSecurities Act.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three : (679,723i) shares of Company Common Stock 1,871,779 Shares are subject to issuance pursuant to Company Options granted and outstanding warrants under the 2009 Plan; (ii) 29,079 Shares are subject to issuance pursuant to Company Options granted and outstanding under the 2007 Plan; (iii) 3,663,180 Shares are subject to issuance pursuant to Company Options granted and outstanding under the 2000 Plan; (iv) an aggregate of no Shares are subject to or otherwise deliverable in connection with outstanding Restricted Shares; (v) an aggregate of 1,971,511 Shares are subject to or otherwise deliverable in connection with outstanding RSUs; (vi) 31,852 Shares are estimated to be subject to outstanding purchase rights under the ESPP (assuming that the closing price per share of Company Common Stock as reported on the on the purchase date for the current offering period was equal to the Merger Consideration); ("vii) 11,002,845 Shares are reserved for future issuance under Company Warrants")Equity Plans; and (viii) 503,429 Shares are reserved for future issuance under the ESPP. Part 2.3(c) As of the date of this Agreement, the weighted average exercise price of the Company Disclosure Schedule sets forth Options outstanding as of that date was $20.50. The Company has delivered or otherwise made available to Parent or Parent’s Representatives copies of all Company Equity Plans covering the following information with respect to each Company Warrant Options, Restricted Shares and RSUs outstanding as of the date of this Agreement: (i) Agreement and the name forms of the warrant holder; (ii) the number of shares of Company Common Stock subject to all stock option agreements evidencing such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expiresOptions. The Company has delivered or otherwise made available to Parent accurate and complete or Parent’s Representatives copies of all agreementsthe ESPP and applicable offering document. Other than as set forth in this Section 3.3(c), certificates and other documents evidencing all warrants which there is no issued, reserved for issuance, outstanding or authorized stock option, stock appreciation, phantom stock, profit participation or similar rights or equity-based awards with respect to any of the Company has ever grantedAcquired Corporations.
(d) All of the outstanding capital stock or other voting securities of, or ownership interests in, each Subsidiary of the Company is owned by the Company, directly or indirectly, beneficially and of record, by the Company free and clear of all Encumbrances and transfer restrictions, except for such Encumbrances and transfer restrictions of general applicability as may be provided under the Securities Act or other applicable securities laws. Except as set forth in Parts 2.3(b), 2.3(c) this Section 3.3 or 2.3(din Part 3.3(d) of the Company Disclosure Schedule Schedule, there is no: (i) outstanding shares of capital stock, or other equity interest in, the Company; (ii) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, stock-based performance unit or any other right that is linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock or other securities of any of the CompanyAcquired Corporations; (iiiii) outstanding security, instrument instrument, bond, debenture, note or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; or (iiiiv) shareholder stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which any of the Company Acquired Corporations is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All Part 3.3(e) of the Company Disclosure Schedule sets forth, as of the close of business on the business day immediately preceding this Agreement, a list of each Company Option and each Company Equity Award outstanding shares and in the case of a Company Common StockOption unexercised as of such date, all which list specifies (i) the name of the holder, (ii) the number of Shares subject to such Company Option or Company Equity Award, as applicable, and (iii) the exercise price of any such Company Option.
(f) Each outstanding Company Options, all outstanding Company Warrants and all outstanding shares share of capital stock of each Subsidiary of the Company have been issued is duly authorized, validly issued, fully paid, nonassessable and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirementsfree of preemptive rights, and (ii) all requirements set forth in applicable Contracts.
(f) All there are no subscriptions, options, warrants, rights, calls, contracts or other commitments, understandings, restrictions or arrangements relating to the issuance, acquisition, redemption, repurchase or sale of the outstanding any shares of capital stock or other equity or voting interests of each any Subsidiary of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear including any right of conversion or exchange under any outstanding security, instrument or agreement, any agreements granting any preemptive rights, subscription rights, anti-dilutive rights, rights of first refusal or similar rights with respect to any securities of any EncumbrancesSubsidiary. None of the Acquired Corporations has any outstanding equity compensation plans or policies relating to the capital stock of, or other equity or voting interests in, any Subsidiary of the Company.
Appears in 1 contract
Sources: Merger Agreement (Websense Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) of 100,000,000 shares of Company Common StockStock and 25,000,000 shares of preferred stock, $.005 par value $0.01 per share, share (the “Company Preferred Stock”) of which, as which 21,809,395 shares of August 31, 1998, 8,076,404 Company Common Stock and no shares (which amount does not materially differ from the amount of Company Preferred Stock were issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of the date of this Agreement. All of the outstanding shares of Company Common Stock have been (i) are duly authorized and authorized, validly issued, and are fully paid and nonassessablenon-assessable, (ii) are free of any Liens and pre-emptive or similar rights, and (iii) were not issued in material violation of any preemptive rights or rights of first refusal created by statute, the certificate of incorporation or bylaws of the Company or any agreement to which the Company is a party or by which it is bound. As of the date of this Agreement, there are 1,151,109 were (i) 1,068,325 shares of Company Common Stock held in treasury by reserved for issuance under the Company and no shares 2005 Plan, of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding which 545,250 shares of Company Common Stock is entitled or were subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii) none of the outstanding Company RSUs and 523,075 shares of Company Common Stock is were reserved for future Company RSU grants and (ii) 57,883 shares of Company Common Stock reserved for issuance under the 2003 Plan, none of which were subject to any right of first refusal outstanding options. The Company has delivered to the Parents or their Representatives (or made available in favor a data room) true and complete copies of the Company; 2005 Plan and (iii) each form of agreement evidencing each award thereunder. Except for the rights created pursuant to this Agreement and the Company RSUs, there are no options, warrants, calls, rights, commitments or agreements that are outstanding to which the Company is no Acquired Corporation Contract relating a party or by which it is bound, obligating the Company to the voting issue, deliver, sell, repurchase or registration ofredeem, or restricting any Person from purchasingcause to be issued, sellingdelivered, pledging sold, repurchased or otherwise disposing of (or granting any option or similar right with respect to)redeemed, any shares of Company Common Stock. Upon consummation Stock or other capital stock of or equity interests in the MergerCompany or the Company Subsidiaries or obligating the Company to grant, (A) extend, accelerate the shares of Parent Common Stock issued in exchange for vesting of, change the price of, or otherwise amend or enter into any option, warrant, call, right, commitment or agreement regarding shares of Company Common Stock that are subject to a Contract pursuant to which or other capital stock of or equity interests in the Company has or the right to repurchase, redeem or otherwise reacquire any Company Subsidiaries. All shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to issuable upon exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchaserestricted share units described in this Section 2.3 will be, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company when issued pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price terms of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreementrestricted share units, six hundred seventy-nine thousandduly authorized, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable nonassessable. There are no other contracts, commitments or agreements relating to the voting, purchase or sale of Company Common Stock between or among the Company and are owned beneficially and any of record by its stockholders. To the Company’s knowledge, free and clear there are no voting trusts, proxies, shareholder rights plans or other arrangements relating to the issuance, sale, voting, transfer, ownership or other rights with respect to any shares of capital stock of the Company. There are no outstanding bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any Encumbrancesmatter on which the Company’s shareholders may vote.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) of 10,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 3,675,782 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of the date of this Agreement. Except as set forth in Part 2.3(a)(i) of the Disclosure Schedule, the Company does not hold any shares of its capital stock in its treasury. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there There are 1,151,109 no shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
. Except as set forth in Part 2.3(a)(ii) of the Disclosure Schedule: (i) None none of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (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) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to, other than the Company Equity Awards summarized on Part 2.3(b) of the Disclosure Schedule), any shares of Company Common Stock. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Company Common StockStock or other securities. Part 2.3(a)(iii) of the Disclosure Schedule accurately and completely describes all repurchase rights held by the Company with respect to shares of Company Common Stock (including shares issued pursuant to the exercise of stock options), and specifies which of those repurchase rights are currently exercisable.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement: (i) 947,015 shares of Company Common Stock are issued or subject to issuance pursuant to stock options or stock appreciation rights granted and outstanding under the Company Equity Plan; (ii) 272,500 shares of Company Common Stock are subject to issuance pursuant to outstanding options to purchase stock appreciation rights outside of the Company Equity Plan; (iii) 0 shares of Company Common Stock. (Stock options have been granted by as restricted stock outside of the Company Equity Plan; (iv) no shares of Company Common Stock are reserved for future issuance pursuant to stock options or other equity awards not yet granted under the Company Equity Plan; and (v) 57,750 shares of Company Common Stock are reserved for future issuance pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Warrants. Part 2.3(b)(i2.3(b) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option Equity Award outstanding as of August 31, 1998the date of this Agreement: (iA) the particular plan Contract (if any) pursuant to which such Company Option Equity Award was granted; (iiB) the name of the optioneeoptionee or holder, as applicable; (iiiC) the number of shares of Company Common Stock subject to such Company OptionEquity Award; (ivD) the exercise price of such Company OptionEquity Award, if applicable; (vE) the date on which such Company Option Equity Award was granted; (viF) the applicable vesting schedule and the extent to which such Company Option Equity Award is vested and exercisable as of the date of this Agreement; and (viiG) the date on which such Company Option Equity Award expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which any of the Company Acquired Corporations has ever granted stock options Company Equity Awards, and the form forms of all stock option award agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company OptionEquity Awards.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts Part 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule Schedule, there is no: (i) outstanding subscription, option, call, warrant warrant, membership interest or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the CompanyAcquired Corporations; (iii) shareholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which any of the Company Acquired Corporations is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of any of the CompanyAcquired Corporations.
(ed) All outstanding shares of Company Common Stock, all outstanding Company Optionsoptions, all outstanding Company Warrants warrants and all outstanding shares of capital stock of each Subsidiary other securities of the Company Acquired Corporations have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(fe) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are Company’s Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof, and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 1 contract
Sources: Merger Agreement (Servidyne, Inc.)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) of 10,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 2,209,968 shares (which amount does not materially differ from the amount are issued and outstanding as of the date of this Agreementoutstanding.
(b) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of the date of this Agreement. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
: (i) None of the outstanding 236,949 shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance 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) there is no Acquired Corporation 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase shares of Company Common Stock (the "Company Options"); and (ii) 254,006 shares of Company Common Stock have been reserved for issuance pursuant to outstanding warrants to purchase shares of Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i2.3(b) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998the date of this Agreement: (i) the particular plan (if any) pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedules (which applicable vesting schedule may be provided by means of a general description of the vesting schedules applicable to outstanding Company Options), and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form forms of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates warrants to purchase shares of Company Common Stock.
(c) All of the outstanding shares of Company Common Stock have been duly authorized and validly issued and are fully paid and nonassessable and have been issued in compliance with all applicable federal and state securities laws and other documents evidencing applicable Legal Requirements, and were not issued in violation of any preemptive rights or other rights to subscribe for or purchase securities of the Company. Except as set forth in Part 2.3(c) of the Disclosure Schedule, there are no preemptive rights applicable to any shares of capital stock of the Company. All outstanding Company Options and all outstanding warrants which the to purchase shares of Company has ever grantedCommon Stock have been issued and granted in compliance with (A) all applicable federal and state securities laws and other applicable Legal Requirements, and (B) all material requirements set forth in applicable Contracts.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or Part 2.3(d) of the Company Disclosure Schedule Schedule, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; securities or (iv) to the best of the knowledge of the Company, condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares Except as set forth in Part 2.3(e) of the Disclosure Schedule, the Company Common Stockhas not repurchased, all outstanding Company Options, all outstanding Company Warrants and all outstanding redeemed or otherwise reacquired any of its shares of capital stock of each Subsidiary or other securities, including but without limiting the generality of the foregoing, the repurchase of any vested or unvested Company have been issued and granted Common Stock pursuant to the terms of the Founders Shareholders Agreement. All securities so reacquired by the Company were reacquired in compliance with (i) all applicable securities laws and other applicable Legal Requirements, Requirements and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Acuson Corp)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share500,000,000 Shares, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount 33,236,216 Shares have been issued and or are outstanding as of the date close of this Agreement) have been issued and are outstandingbusiness on the Reference Date; and (ii) five hundred thousand (500,000) 20,000,000 shares of preferred stockCompany Preferred Stock, $1.00 par value per share, none of which no shares are issued or outstanding as of the date close of this Agreementbusiness on the Reference Date. All of the outstanding shares of Company Common Stock Shares have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock Shares is entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; , (ii) none of the outstanding shares of Company Common Stock is Shares are subject to any right of first refusal in favor of the Company; and , (iii) there are no outstanding bonds, debentures, notes or other Indebtedness of the Company having a right to vote on any matters on which the stockholders of the Company have a right to vote and (iv) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Share. The Company Common Stock. Upon consummation of the Mergeris not under any obligation, (A) the shares of Parent Common Stock issued in exchange for nor is it bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding Shares. The Company Common Stock constitutes the only outstanding class of securities of the Company registered under the Securities Act.
(c) As of the close of business on the Reference Date: (i) 5,257,660 Shares are subject to issuance pursuant to Company Options granted and outstanding under the Company Equity Plans; (ii) 14,516 Shares are estimated to be subject to outstanding purchase rights under the ESPP (assuming that the closing price per share of Company Common Stock as reported on the purchase date for the current offering period was equal to the Offer Price and employee contributions continue until such purchase date at the levels in place as of the Reference Date); and (iii) 81,966 Shares are subject to warrants to purchase shares of Company Common Stock.
Stock (b) As “Company Warrants”). The Company has delivered or made available to Parent or Parent’s Representatives copies of August 31, 1998, 957,725 shares (which amount does not materially differ from all Company Equity Plans covering the amount subject to options Company Options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by , the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form forms of all stock option agreements evidencing such options. There are no commitments or Company Options and the forms of all agreements of any character to which governing the Company is bound obligating Warrants (the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"“Warrant Agreements”). Part 2.3(c) of the Other than as set forth in this Section 3.3(c), there is no issued, reserved for issuance, outstanding or authorized stock option, restricted stock unit award, restricted stock award, stock appreciation, phantom stock, profit participation, Company Disclosure Schedule sets forth the following information Warrant or similar rights or equity or equity-based awards with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever grantedCompany.
(d) Each Company Option (A) was issued in accordance with the terms of the plan under which it was granted and all applicable Legal Requirements and (B) is not subject to Section 409A of the Code. Each Company Option characterized by the Company as an “incentive stock option” within the meaning of Section 422 of the Code complies with all of the applicable requirements of Section 422 of the Code. Table of Contents
(e) Except as set forth in Parts 2.3(b)this Section 3.3, 2.3(c) or 2.3(d) as of the Company Disclosure Schedule close of business on the Reference Date, there is are no: (i) outstanding subscriptionshares of capital stock, optionor other equity interest in the Company; (ii) outstanding subscriptions, calloptions, warrant calls, warrants or right rights (whether or not currently exercisable) to acquire any shares of capital stock, restricted stock units, stock-based performance units or any other rights that are linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock or other securities of the Company; (iiiii) outstanding securitysecurities, instrument instruments, bonds, debentures, notes or obligation obligations that is are or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; or (iiiiv) shareholder stockholder rights plan plans (or similar plan commonly referred to as a "“poison pill"”) or Contract Contracts under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 20,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 1,045,060 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of the date of this Agreement. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessablenon-assessable. As All outstanding shares of Company Common Stock and all outstanding Company Options, have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts. Part 2.3(a) of the Company Disclosure Schedule provides as of the date of this Agreement, there are 1,151,109 an accurate and complete description of the terms of each repurchase option which is held by the Company and to which any shares of capital stock of the Company is subject.
(b) The Company has reserved 2,400,000 shares of Company Common Stock held in treasury by for issuance under the Company and no Stock Option Plan, of which options to purchase 378,405 shares of stock held in treasury by any are outstanding as of the other Acquired Corporations.
date of this Agreement. Part 2.3(b) of the Company Disclosure Schedule accurately sets forth, with respect to each option to purchase Common Stock of the Company outstanding as of the date hereof (whether vested or unvested) (the "Company Options"): (i) None the name of the outstanding shares holder of such Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar rightOption; (ii) none the total number of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor of the Company; and (iii) there is no Acquired Corporation 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) and the number of shares of Company Common Stock subject with respect to which such Company OptionOption is immediately exercisable; (iv) the exercise price of such Company Option; (viii) the date on which such Company Option was granted; (vi) the applicable vesting schedule granted and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price term of such Company WarrantOption; (iv) the date on which vesting schedule for such Company Warrant was grantedOption; (v) the applicable vesting schedule and the extent to which exercise price per share of Company Common Stock purchasable under such Company Warrant is vested and exercisable as of the date of this AgreementOption; and (viivi) the date on which whether such Company Warrant expiresOption has been designated an "incentive stock option" as defined in Section 422 of the Code. The Except for Company has delivered Options granted pursuant to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b)Stock Option Plans, 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securitiessecurities of the Company; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company (clauses (i) through (iv) above, collectively "Company Rights"). The Company has not issued any debt securities which grant the holder thereof any right to vote on, or veto, any actions by the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(fc) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) Subsidiaries of the Company Disclosure Schedule have been duly authorized and are validly issued, are fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
(d) The Company has never repurchased, redeemed or otherwise reacquired any shares of capital stock or other securities of the Company except as specified in the Company Disclosure Schedule. All securities so reacquired by the Company were reacquired in compliance with (i) the applicable provisions of the NMBCA and all other applicable Legal Requirements, and (ii) all requirements set forth in applicable restricted stock purchase agreements and other applicable Contracts.
(e) The certificate referred to in Section 6.5(h) and the information provided to Parent by the Company pursuant to Section 5.7 shall be true, accurate and complete. As of the Effective Time, all Company Stock Options, all rights to acquire Company Stock Options or other options on the capital stock of the Company and all other stock purchase rights to acquire or purchase shares of Company Common Stock shall have been exercised or terminated without Liability or obligation to the Company, the Surviving Corporation, Parent or any of its Affiliates after the Effective Time. All disclosure and other documents with or addressed to holders of Company Options shall be prepared and distributed in compliance with the Company Constituent Documents, all applicable Company Contracts and Plans and all applicable Legal Requirements, including federal and state anti-fraud securities laws.
Appears in 1 contract
Sources: Merger Agreement (Titan Corp)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 28,500,000 shares of Company the Company’s Common Stock (the “Common Stock, $.005 par value per share”), of which, as of August 31, 1998, 8,076,404 which 500,000 shares (which amount does not materially differ from the amount are issued and outstanding as outstanding; (ii) 20,000,000 shares of the date Series A Preferred Stock, none of this Agreement) have been which are issued and are outstanding; and (iiiii) five hundred thousand (500,000) 2,750,000 shares of preferred stockthe Company’s Series A-1 Preferred Stock, $1.00 par value per share, none of which no shares are outstanding as of the date of this Agreementissued and outstanding. All of the outstanding shares of Company Common Stock the Company’s capital stock have been duly authorized and validly issued, issued and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None All of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii) none the Company’s capital stock and all of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor of the Company; and (iii) there is no Acquired Corporation Contract relating to the voting subscriptions, options, calls, warrants 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the Company’s capital stock or other securities of the Company have been issued in compliance with all applicable federal and state securities laws and other applicable legal requirements, as well as all requirements set forth in the Company Documents and any agreements to which the Company is a party relating to the issuance of such shares of the Company’s capital stock or other securities of the Company. No shares of the Company’s capital stock are subject to a repurchase option in favor of the Company, and the Company has never repurchased, redeemed or otherwise reacquired any shares of the Company’s capital stock or other securities of the Company.
(b) There are no: (i) outstanding subscriptions, options, calls, warrants or rights (whether or not currently exercisable, including conversion or preemptive rights and rights of first refusal or similar rights) to acquire any shares of the Company’s capital stock or other securities of the Company; (ii) outstanding securitysecurities, instrument notes, instruments or obligation obligations that is are or may become convertible into or exchangeable for any shares of the Company’s capital stock or other securities of the Company; (iii) shareholder rights plan (outstanding or authorized stock appreciation, phantom stock or similar plan commonly referred rights with respect to as a "poison pill"the capital stock of the Company; (iv) agreements or Contract understandings (other than this Agreement) under which the Company is or may become obligated to sell sell, transfer, exchange, purchase, redeem or otherwise issue any shares of its the Company’s capital stock or any other securitiessecurities of the Company; (v) agreements, voting trusts, proxies or understandings with respect to the voting or registration under the Securities Act of 1933, as amended (the “Securities Act”), of any shares of the Company’s capital stock or other securities of the Company; or (ivvi) condition conditions or circumstance circumstances that may give rise to or provide a basis for the assertion of a claim by any Person individual or entity to the effect that such Person individual or entity is entitled to acquire or receive any shares of the Company’s capital stock or other securities of the Company.
(ec) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(iSchedule 2.3(c) of the Company Disclosure Schedule are validly issued, fully paid of Exceptions sets forth a complete and nonassessable accurate list of all of the stock option plans and are owned beneficially and of record other stock or equity-related plans maintained by the Company, free and clear of any Encumbrances.
Appears in 1 contract
Sources: Series a Preferred Stock Purchase Agreement (Avalon Ventures IX GP, LLC)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) of 30,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of the date of this Agreement. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreementhereof, there are 1,151,109 (a) 16,096,550 shares of Company Common Stock are outstanding, (b) no shares of Common Stock are held in treasury by the Company in its treasury, and (c) no shares of capital stock held in treasury by any of the Company are held by the Company's Subsidiaries. The Company has no outstanding options to acquire Common Stock or bonds, debentures, notes or other Acquired Corporations.
obligations entitling the holders thereof to vote (ior which are convertible into or exercisable for securities having the right to vote) None with the holders of the Common Stock on any matter. All issued and outstanding shares of Company Common Stock is entitled or subject to any are duly authorized, validly issued, fully paid, nonassessable and free of preemptive right, right of participation, right of maintenance or any similar right; (ii) none of the outstanding rights. There are no other shares of Company Common Stock is subject to any right of first refusal in favor capital stock or voting securities of the Company; , and no existing options, warrants, calls, subscriptions, convertible securities, and no stock appreciation rights or limited stock appreciation rights or other rights (iii) there is no Acquired Corporation Contract relating including rights of first refusal), agreements or commitments which obligate the Company or any of its Subsidiaries to the voting issue, transfer or registration sell any shares of capital stock of, or restricting equity interests in, or 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parentmaterial assets of, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contractof its Subsidiaries. None There are no outstanding obligations of the Acquired Corporations is under Company or any obligation Subsidiaries to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company; (ii) outstanding security. After the Effective Time, instrument the Surviving Corporation will have no obligation to issue, transfer or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock of the Company or the Surviving Corporation pursuant to any Company Employee Benefit Plan. There are no voting trusts or other securities agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares voting of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contractsor any of its Subsidiaries.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) 100,000,000 shares of Company Common Stock, $.005 par value per share, of which, which 45,438,420 shares have been issued and are outstanding as of August 31the close of business on the Reference Date; and (ii) 5,500,000 shares of Company Preferred Stock, 1998, 8,076,404 shares (none of which amount does not materially differ from the amount are issued and outstanding as of the date close of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of business on the date of this AgreementReference Date. All of the outstanding shares of Company Common Stock Shares have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock Shares is entitled or subject to any preemptive right, anti-dilutive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; , (ii) none of the outstanding shares of Company Common Stock Shares is subject to any right of first refusal in favor of the Company; and , (iii) there are no outstanding bonds, debentures, notes or other Indebtedness of the Company having a right to vote on any matters on which the Company Stockholders have a right to vote and (iv) there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Shares. The Company Common Stock. Upon consummation of the Mergeris not under any obligation, (A) the shares of Parent Common Stock issued in exchange for nor is it bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Shares. The Company Common Stock are subject to issuance pursuant to constitutes the only outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) class of securities of the Company Disclosure Schedule sets forth Acquired Companies registered under the following information with respect to each Company Option outstanding as of August 31, 1998: (i) Securities Act or the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company OptionExchange Act.
(c) As of the date close of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three business on the Reference Date: (679,723i) shares of Company Common Stock 10,683,404 Shares are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holderOptions; (ii) the number of shares of Company Common Stock 808,596 Shares are subject to such Company Warrant; or otherwise deliverable in connection with outstanding RSU Awards, (iii) the exercise price 223,100 Shares are subject to or otherwise deliverable in connection with outstanding PSU Awards, assuming a maximum number of Shares to be issued under such Company WarrantPSU Awards; (iv) no Shares are subject to outstanding purchase rights under the date on which such Company Warrant was grantedESPP and no Shares have been previously purchased under the Company ESPP; (v) 2,831,431 Shares were reserved for future issuance under the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; Equity Plans and (viivi) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which 700,000 Shares were reserved for future issuance under the Company has ever grantedESPP.
(d) Except as otherwise set forth in Parts 2.3(b)this Section 3.4, 2.3(c) or 2.3(d) as of the Company Disclosure Schedule close of business on the Reference Date, there is are no: (i) outstanding subscriptionshares of capital stock, optionor other equity interest in the Company; (ii) outstanding subscriptions, calloptions, warrant calls, warrants or right rights (whether or not currently exercisable) to acquire any shares of capital stock, restricted stock units, stock-based performance units or any other rights that are linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock or other securities of the Company; (iiiii) outstanding securitysecurities, instrument instruments, bonds, debentures, notes or obligation obligations that is are or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; or (iiiiv) shareholder stockholder rights plan plans (or similar plan commonly referred to as a "“poison pill"”) or Contract Contracts under which the any Acquired Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares The Company has delivered or made available to Parent or Parent’s Representatives accurate and complete copies of all Company Common Stock, all outstanding Equity Plans covering the Company Options, RSU Awards, and PSU Awards outstanding as of the date of this Agreement and the forms of all award agreements evidencing such Company Stock Awards, and no Company Stock Award agreement materially deviates from such forms. Section 3.4(e) of the Company Disclosure Letter sets forth, as of the close of business on the Reference Date, an accurate and complete list of each outstanding Company Warrants Option, RSU Award and PSU Award and, to the extent applicable, (i) the name (or employee identification number) of the holder thereof, (ii) the number of Shares subject to such Company Stock Award (assuming performance conditions are satisfied in full for PSU Awards), (iii) the exercise price per Share, (iv) the Company Stock Award Grant Date, (v) the vesting commencement date, (vi) the vesting schedule, including any performance conditions (and the terms of any acceleration thereof) and the extent to which the Company Stock Award is vested and unvested as of the Reference Date, (vii) the Tax status of such Company Option under Section 422 of the Code (or any applicable foreign Tax law providing favorable Tax treatment), (viii) the expiration date of each Company Stock Award, (ix) the Company Equity Plan under which such Company Stock Award was granted, and (x) the country and state of residence of such Company Stock Award holder. All grants of Company Options, RSU Awards, and PSU Awards were validly issued no later than the date on which the grant of such Company Stock Award was by its terms to be effective (the “Company Stock Award Grant Date”) and properly approved by the Company Board (or a duly authorized committee thereof) in accordance with all applicable Legal Requirements and the terms of the applicable Company Equity Plan and the exercise price per Share of each Company Option was not less than the fair market value of a Share on the applicable Company Stock Award Grant Date. The Company Equity Plans comply with the Danish Stock Options Act, as applicable. Other than as set forth in Section 3.4(e) of the Company Disclosure Letter, as of the Reference Date, there is no issued, reserved for issuance, outstanding shares or authorized stock option, restricted stock unit award, performance stock unit award, restricted stock award, stock appreciation, phantom stock, profit participation or similar rights or equity or equity-based awards with respect to the Company. Each Company Stock Award is exempt from Section 409A of the Code.
(f) Section 3.4(f) of the Company Disclosure Letter identifies each Company Associate with an outstanding offer letter, employment agreement or other Contract or Employee Plan as of the date hereof that contemplates a grant of, or right to purchase or receive: (i) Company Options, RSU Awards, PSU Awards or other equity awards with respect to Shares or (ii) other securities of the Company that, in each case, have not been issued or granted as of the close of business on the Reference Date, together with the number of Shares underlying such contemplated grant of Company Options, RSU Awards, PSU Awards or other equity awards and any material promised terms thereof.
(g) All of the outstanding capital stock of or other voting securities of, or ownership interests in, each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirementsis owned by the Company, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issueddirectly or indirectly, fully paid and nonassessable and are owned beneficially and of record by the Companyrecord, free and clear of any Encumbrancesall Encumbrances and transfer restrictions, except for such Encumbrances and transfer restrictions of general applicability as may be provided under the Securities Act or other applicable securities laws.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock equity interests of the Company consists of: consist solely of membership interests (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of the date of this Agreement. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable"Membership Interests"). As of the date hereof, all of this Agreementthe Membership Interests, there including the Purchased Interests, are 1,151,109 shares held beneficially and of Company Common Stock held in treasury record by the Company and no shares of stock held in treasury by any Sellers. All of the issued and outstanding Membership Interests, including the Purchased Interests, were duly authorized for issuance and are validly issued, fully paid and non-assessable and were not issued in violation of any purchase or call option, right of first refusal, subscription right, preemptive right or any similar rights. All of the issued and outstanding Membership Interests, including the Purchased Interests, were issued in compliance in all material respects with all applicable securities laws and other Acquired Corporationsapplicable Legal Requirements.
(ib) None Part 3.3(b)(i) identifies each holder of Membership Interests in the Company, the number of Membership Interests held by such holder, and such holder's percentage share of all Membership Interests. Except as set forth in Part 3.3(b)(ii): (A) none of the outstanding shares of Company Common Stock is Membership Interests are entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; right and (iiB) none of the outstanding shares of Company Common Stock is Membership Interests are subject to any right of first refusal or similar right in favor of the Company or any other Person.
(c) There are no existing options, warrants, calls, rights or Contracts to which any Seller or the Company is a party requiring, and there are no securities of the Company outstanding which upon conversion or exchange would require, the issuance, sale or transfer of any additional Membership Interests or other equity interests of the Company or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase Membership Interests, including the Purchased Interests, or other equity interests of the Company; and . Except as set forth in Part 3.3(c), there are no obligations, contingent or otherwise, of the Company to provide material funds to, or make any material investment in (iiiin the form of a loan, capital contribution or otherwise), or provide any guarantee with respect to the obligations of, any Person. Except as set forth on Part 3.3(c), there are no outstanding equity appreciation, phantom equity, profit participation or similar rights with respect to the Company. There are no bonds, debentures, notes or other Indebtedness of the Company having the right to vote or consent (or, convertible into, or exchangeable for, securities having the right to vote or consent) on any matters on which members (or other equity holders) of the Company may vote. Except for the Company Agreement of the Company (the "Company Agreement"), there are no voting trusts, irrevocable proxies or other Contracts or understandings to which the Company or a Seller is no Acquired Corporation Contract relating a party or is bound with respect to the voting or of, registration of, consent 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. Upon consummation of Membership Interests, including the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever grantedPurchased Interests.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) As of the Company Disclosure Schedule there is no: (i) outstanding subscriptionClosing and after giving effect to the transactions contemplated hereby, option, call, warrant or right (whether or not currently exercisable) to acquire any shares all of the capital stock or other securities of Membership Interests, including the Company; (ii) outstanding securityPurchased Interests, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim will be held by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, Buyer free and clear of any EncumbrancesEncumbrances (other than restrictions imposed by securities laws applicable to unregistered securities generally or pursuant to the Company Agreement).
Appears in 1 contract
Sources: Securities Purchase Agreement (Sun River Energy, Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) of 30,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued Stock and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) 5,000,000 shares of preferred stock, $1.00 .01 par value per sharevalue, of which no 30,000 shares are outstanding as of the date of this Agreement. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessabledesignated as Series A Junior Participating Preferred Stock ("PREFERRED STOCK"). As of the date hereof, (a) 7,818,087 shares of Common Stock are outstanding, (b) 30,000 shares of Preferred Stock are subject to Preferred Stock Purchase Rights ("RIGHTS") issued pursuant to the Company's Rights Agreement and no other shares of Preferred Stock are issued and outstanding, (c) 0 shares of Common Stock are held by the Company in its treasury, and (d) no shares of capital stock of the Company are held by the Company's Subsidiaries. SECTION 4.4 of the Company Disclosure Letter sets forth a complete and accurate list, as of the date hereof, of (i) the number of outstanding Options and Warrants, (ii) the number of shares of Common Stock which can be acquired upon the exercise of all outstanding Options and Warrants, respectively, (iii) the number of shares of Common Stock which are reserved for issuance upon the exercise of outstanding Options and the number of shares which are reserved for future grants under the Stock Option Plans, (iv) the number of shares of Common Stock which are reserved for issuance upon the exercise of outstanding Warrants, and (v) the exercise price of each outstanding Option and Warrant, and (vi) the number of shares of Common Stock which are reserved for issuance pursuant to the Purchase Plan. Except for the Common Stock, the Rights, the Options, the Warrants, and the Purchase Rights, the Company has no outstanding bonds, debentures, notes or other obligations entitling the holders thereof 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. Except as set forth in SECTION 4.4 of the Company Disclosure Letter, since March 31, 1999, the Company (i) has not issued any shares of Common Stock other than upon the exercise of Options and Warrants or pursuant to the Purchase Plan, (ii) has granted no Options to purchase shares of Common Stock under the Stock Option Plans, (iii) has not amended the Purchase Plan, and (iv) has not split, combined or reclassified any of its shares of capital stock. All issued and outstanding shares of Common Stock are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights. Except as set forth above in this AgreementSECTION 4.4 or in SECTION 4.4 of the Company Disclosure Letter, there are 1,151,109 no other shares of Company Common Stock held in treasury by the Company and no shares of capital stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor voting securities of the Company; , and no existing options, warrants, calls, subscriptions, convertible securities, and no stock appreciation rights or limited stock appreciation rights or other rights (iii) there is no Acquired Corporation Contract relating including rights of first refusal), agreements or commitments which obligate the Company or any of its Subsidiaries to the voting issue, transfer or registration sell any shares of capital stock of, or restricting equity interests in, or 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parentmaterial assets of, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained of its Subsidiaries. Except as set forth in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None SECTION 4.4 of the Acquired Corporations Company Disclosure Letter, the Company is under not obligated to issue any obligation Options, Warrants or Purchase Rights after the date hereof. There are no outstanding obligations of the Company or any Subsidiaries to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's capital stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There there are no commitments or agreements of any character to which unissued performance awards outstanding under the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock Option Plan or any other securities; outstanding stock related awards. At the Effective Time, each outstanding Option and Warrant shall be canceled without the consent of any other party or (iv) condition the payment of any consideration other than as provided in SECTION 3.2(d). After the Effective Time, the Surviving Corporation will have no obligation to issue, transfer or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive sell any shares of capital stock of the Company or the Surviving Corporation pursuant to any Company Employee Benefit Plan (as defined in SECTION 4.11). There are no voting trusts or other securities agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares voting of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contractsor any of its Subsidiaries.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company MDI consists of: (i) twenty-five million (25,000,000) of 100,000,000 shares of Company Common Stock, $.005 Stock (with no par value per sharevalue), of which, as of August 31, 1998, 8,076,404 which 25,656,959 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of the date of this AgreementAgreement and will be issued and outstanding at the Closing Date. All of the outstanding shares of Company MDI Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As non-assessable.
b) MDI has reserved a total of the date of this Agreement, there are 1,151,109 ______ shares of Company MDI Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(ifor issuance under MDI Options Schedule 2.5(b) None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive rightaccurately sets forth, right of participation, right of maintenance 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) there is no Acquired Corporation 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company MDI Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option that is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holderholder of such MDI Option; (ii) the total number of shares of Company MDI Common Stock that are subject to such Company WarrantMDI Option; (iii) the exercise price per share of MDI Common Stock purchasable under such Company WarrantMDI Option; and (iv) the date on which whether such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable MDI Option has been designated an "incentive stock option" as defined in Section 422 of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever grantedInternal Revenue Code.
(dc) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(dSchedule 2.5(b) of the Company MDI Disclosure Schedule Schedule, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the CompanyMDI; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the CompanyMDI; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company MDI is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) to the Knowledge of MDI condition or circumstance that may could reasonably be expected to give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the CompanyMDI.
(ed) All outstanding shares of Company MDI Common Stock, all outstanding Company Options, all outstanding Company Warrants Stock and all outstanding shares of capital stock of each Subsidiary of the Company MDI Options have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all material requirements set forth in applicable Contracts.
(fe) All Except as set forth in Schedule 2.5(e) of the MDI Disclosure Schedule, all of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule MDI subsidiaries are validly issuedissued (in compliance with all applicable securities laws and other Legal Requirements and applicable MDI Contracts), fully paid and nonassessable and are owned beneficially and of record by the CompanyMDI, free and clear of any EncumbrancesEncumbrance.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company as of the date of this Agreement consists of: (i) twenty-five million (25,000,000) solely of 30,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value 0.01 per share, of which no 21,230 shares have been issued and are outstanding as of the date of this Agreement. The Company does not hold any shares of its capital stock in its treasury. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As Except as set forth in Part 2.6(a) of the date of this AgreementCompany Disclosure Schedule, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None none of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii) right and none of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor of the Company; and (iii. Except as set forth in Part 2.6(a) there are no outstanding bonds, debentures, notes or other indebtedness of the Company having a right to vote on any matters on which the Company stockholders have a right to vote. Except as contemplated herein or as set forth in Part 2.6(a) of the Company Disclosure Schedule, there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation of the MergerThe Company is not under any obligation, (A) the shares of Parent Common Stock issued in exchange for nor is it bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stockor other securities. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i2.6(a) of the Company Disclosure Schedule sets forth accurately and completely lists all repurchase and forfeiture rights held by the following information Company with respect to shares of Company Common Stock and specifies each holder of Company Option outstanding as Common Stock, the date of August 31, 1998: (i) the particular plan pursuant to which purchase of such Company Option was granted; (ii) the name of the optionee; (iii) Common Stock, the number of shares of Company Common Stock subject to such Company Option; (iv) repurchase rights, the exercise purchase price of paid by such Company Option; (v) holder, and the date on vesting schedule under which such Company Option was granted; repurchase rights lapse.
(vib) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company does not have, and has delivered to Parent accurate and complete copies of all never had, any stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments plan or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of other plan, program, agreement or arrangement providing for any Company Optionequity-based compensation for any Person.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there There is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the CompanyCompany or any of its Subsidiaries; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the CompanyCompany or any of its Subsidiaries; (iii) shareholder stockholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which the Company or any of its Subsidiaries is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; securities or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the CompanyCompany or any of its Subsidiaries. There are no outstanding or authorized stock appreciation, phantom stock, profit participation or other similar rights with respect to the Company or any of its Subsidiaries.
(ed) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants options and all outstanding shares of capital stock of each Subsidiary other securities of the Company have been issued and granted in material compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contracts.
(fe) All of the outstanding The Company has not declared, made or paid any dividends or distributions on any shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any EncumbrancesCapital Stock.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) of 30,000,000 shares of Company common stock, no par value, as follows: 10,000,000 Class A Voting Common StockShares, $.005 no par value per share, of whichand 20,000,000 Class B Common Shares, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 no par value per share, of which no shares 7,200,000 Voting Shares and 2,109,250 Non-Voting Shares (the “Existing Shares”) have been issued and are outstanding as of the date of this Agreement. All of the outstanding shares of Company Common Stock such Existing Shares (i) have been duly authorized and validly issued, and (ii) are fully paid and nonassessable. As of the date of this Agreementnon-assessable, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (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) there is no Acquired Corporation 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. Upon consummation of the Merger, (A) the shares of Parent Common Stock have been issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions full compliance with all applicable securities laws and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stockapplicable Legal Requirements.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options The Company has issued Options that are outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options Agreement to purchase Company Common Stock1,754,000 Non-Voting Shares (the “Option Shares” and together with the Existing Shares the “Shares”). (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options."Schedule 3.5(b) Part 2.3(b)(i) of the Company Disclosure Schedule attached hereto accurately sets forth the following information forth, with respect to each Company Option outstanding as of August 31, 1998: the date hereof (whether vested or unvested): (i) the particular plan pursuant to which name of the holder of such Company Option was grantedOption; (ii) the name total number of the optioneeshares of capital stock with respect to which such Option is exercisable; (iii) the number exercise price per share of shares of Company Common Stock subject to capital stock purchasable under such Company Option; , and (iv) the exercise price expiration date of such Company Option; (v) . All of such Options will immediately vest and become fully exercisable in accordance with their terms upon the date execution of this Agreement and, if not exercised on which such Company Option was granted; (vi) the applicable vesting schedule and the extent or prior to which such Company Option is vested and exercisable as of 30 days after the date of this Agreement; , shall lapse and be of no further force or effect. All of the Option Shares, upon the exercise of such Options, and all of the Shares, as of the Closing Date, shall (i) have been duly authorized and validly issued, (ii) fully paid and non-assessable, (iii) have been issued in full compliance with all applicable securities laws and other applicable Legal Requirements and (viiiv) be held by the date on which such Company Option expires. The Company has delivered to Parent accurate LogicTools Stockholders, free and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements clear of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company OptionEncumbrances.
(c) As of the date of this Agreementhereof, six hundred seventy-nine thousandexcept for the Existing Shares and the Options, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding and as of the date of this AgreementClosing, except for the Shares, there are and will be no issued and outstanding, and the Company has not issued or agreed to issue or will issue or agree to issue any: (i) the name share of the warrant holdercapital stock or other equity or ownership interest; (ii) option, warrant or interest convertible into or exchangeable or exercisable for the number purchase of shares of Company Common Stock subject to such Company Warrantcapital stock or other equity or ownership interests; (iii) stock appreciation right, phantom stock, interest in the exercise price ownership or earnings of such the Company Warrantor other equity equivalent or equity-based award or right; or (iv) bond, debenture or other indebtedness having the date on which such Company Warrant was granted; right to vote or convertible or exchangeable for securities having the right to vote (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever grantedcollectively “Capital Stock”).
(d) Except as set forth in Parts 2.3(b)Schedule 3.5(d) attached hereto and except for the Shareholders Agreement, 2.3(cwhich will be terminated as of the Effective Time, and the rights of the holders of Options to purchase Non-Voting Shares described in Section 3.5(b) or 2.3(d) hereto, and the rights granted to the ILOG Group under this Agreement, there are no outstanding obligations of the Company Disclosure Schedule there is no: (i) outstanding subscriptionto issue, optionsell or transfer or repurchase, callredeem or otherwise acquire, warrant or right (whether that relate to the holding, voting or not currently exercisable) to acquire any shares disposition of or that restrict the transfer of, the issued or unissued capital stock or other securities equity or ownership interests of the Company; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any . No shares of capital stock or other securities equity or ownership interests of the Company, including the Shares, have been issued in violation of any rights, agreements, arrangements or commitments under any Legal Requirements, Company Constituent Documents or any Company Contract to which the Company is a party or by which the Company is bound.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary As of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirementsdate hereof, and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issuedLogicTools Stockholders own, fully paid and nonassessable and are owned beneficially and of record by record, the number of Existing Shares and Options respectively set forth opposite each LogicTools Stockholders’ name on Schedule 3.5(e) attached hereto, and as of the Closing Date, assuming the exercise of all Options outstanding as of the date hereof, the LogicTools Stockholders will own, beneficially and of record, the number of Shares respectively set forth opposite each such LogicTools Stockholders’ name on Schedule 3.5(e) attached hereto, representing all of the issued and outstanding Shares and Capital Stock of the Company, free and clear of any Encumbrances.
Appears in 1 contract
Sources: Merger Agreement (Ilog Sa)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) of 20,000,000 shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 which 2,000,000 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of the date of this Agreement. The Company does not hold any shares of its capital stock in its treasury. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessablenon-assessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock is subject to any right of first refusal or similar right in favor of the CompanyCompany or any other Person; and (iii) there is no Acquired Corporation Contract Company contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation of the MergerThe Company is not under any obligation, (A) the shares of Parent Common Stock issued in exchange for or is bound by any shares of Company Common Stock that are subject to a Contract contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common StockStock or any other securities.
(b) As of August 31, 1998, 957,725 shares (which amount does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock , there are subject to issuance pursuant to outstanding no options to purchase Company Common Stock. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(b), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive (A) any shares of capital stock or other securities of the Company, or (B) any portion of any Merger Consideration or other consideration payable in connection with the Merger (other than in respect of outstanding shares of Company Common Stock as set forth in Section 2.3(a)).
(ed) All outstanding shares of Company Common Stockcapital stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares of capital stock of each Subsidiary options, warrants and other securities of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contractscontracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share275,000,000 Shares, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount 231,156,742 Shares had been issued and were outstanding as of the date close of this Agreement) have been issued and are outstanding; business on September 9, 2020 (the “Capitalization Date”), and (ii) five hundred thousand (500,000) 10,000,000 shares of preferred stock, $1.00 par value per shareCompany Preferred Stock, of which no shares are outstanding. From the Capitalization Date to the execution of this Agreement, the Company has not issued any Shares except pursuant to the exercise of Company Options or the settlement of Company RSUs, in each case outstanding as of the date Capitalization Date in accordance with their terms and, from the Capitalization Date to the execution of this Agreement, the Company has not issued any Company Options, Company RSUs or other equity or equity-based awards, in each case, other than pursuant to any offer of employment or Contract, in either case dated on or prior to the Capitalization Date. All of the outstanding shares equity interests of Company Common Stock the Acquired Companies have been duly authorized and validly issued, and are fully paid and nonassessable. As .
(b) The Company owns all of the date authorized and outstanding capital stock and other equity interests of this Agreementeach of the Company’s Subsidiaries, there are 1,151,109 shares except as set forth on Section 3.03(b) of the Company Common Stock held in treasury Disclosure Schedule. The outstanding capital stock and other equity interests of the Company’s Subsidiaries owned by the Company are owned free and no shares clear of stock held in treasury by any all Encumbrances and transfer restrictions, except for Encumbrances or transfer restrictions of general applicability as may be provided under the Securities Act or applicable securities laws. Except as set forth on Section 3.03(b) of the Company Disclosure Schedule, the Company does not own, directly or indirectly, any capital stock or other Acquired Corporationsequity interests in, or subscriptions, options, calls, warrants or rights (whether or not currently exercisable) to acquire, or other securities convertible into or exchangeable or exercisable for, any capital stock or other equity interests of any Entity.
(i) None of the outstanding shares equity interests of any Acquired Company Common Stock is are entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) none there are no outstanding bonds, debentures, notes or other indebtedness of any Acquired Company having a right to vote on any matters on which the holders of the outstanding shares equity interests of such Acquired Company Common Stock is subject have a right to any right of first refusal in favor of the Companyvote; and (iii) there is no Contract to which any Acquired Corporation Contract Company is bound relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares equity interests of Company Common Stocksuch Acquired Company. Upon consummation The Shares constitute the only outstanding class of securities of the Merger, (A) Company registered under the shares Securities Act. No Subsidiary of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire owns any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common StockShares.
(bd) As of August 31, 1998, 957,725 shares the close of business on the Capitalization Date: (which amount does not materially differ from the amount i) 7,398,865 Shares were subject to options issuance pursuant to Company Options granted and outstanding under the Company Equity Plans, (ii) 126,026 Shares were subject to issuance pursuant to Company RSUs granted and outstanding under the Company Equity Plans, (iii) 10,454,510 Shares were reserved for future issuance under the Company Equity Plans and (iv) 500,000 Shares were reserved for future issuance under the Company ESPP.
(e) Except as set forth in this Section 3.03 and except for the Company Options and Company RSUs outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stock. Agreement (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998: (i) the particular plan pursuant to which such Company Option was granted; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock subject to such Company Option; (iv) and Shares issuable upon the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule and the extent to which such Company Option is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Option expires. The Company has delivered to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options and the form of all stock option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except as set forth in Parts 2.3(bsettlement thereof), 2.3(c) or 2.3(d) of the Company Disclosure Schedule there is are no: (i) outstanding subscriptionshares of capital stock or other securities of any Acquired Company; (ii) outstanding subscriptions, optionoptions, callcalls, warrant warrants or right rights (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, stock-based performance unit or any other right that is linked to, or the value of which is in any way based on or derived from the value of any shares of capital stock or other securities of the any Acquired Company, in each case other than derivative securities not issued by any Acquired Company; (iiiii) outstanding securitysecurities, instrument instruments, bonds, debentures, notes or obligation obligations that is are or may become convertible into or exchangeable for any shares of the capital stock or other securities of the any Acquired Company; (iiiiv) shareholder stockholder rights plan plans (or similar plan plans commonly referred to as a "“poison pill"”) or Contract Contracts under which the any Acquired Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (ivv) condition voting trusts or circumstance that may give rise other Contract to or provide which any Acquired Company is a basis for the assertion of a claim by any Person party with respect to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of the Company.
(e) All outstanding shares of Company Common Stock, all outstanding Company Options, all outstanding Company Warrants and all outstanding shares voting of capital stock of each Subsidiary of the Company have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all requirements set forth in applicable Contractsany Acquired Company.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(iSection 3.03(f) of the Company Disclosure Schedule are validly sets forth a listing of all Persons who hold outstanding Company Options or Company RSUs as of the close of business on the Capitalization Date, indicating, with respect to each Company Option and Company RSU, the number of Shares subject thereto, the date of grant, the Company Equity Plan pursuant to which the award was granted, the vesting schedule and, for Company Options, the per Share exercise price and expiration date. Other than Shares reserved for future issuance under the Company ESPP or as set forth in this Section 3.03(f), as of the Capitalization Date, there is no issued, fully paid and nonassessable and are owned beneficially and of record by the reserved for issuance, outstanding or authorized stock option, stock appreciation, phantom stock, profit participation or similar equity or equity-based awards with respect to any Acquired Company, free and clear of any Encumbrances.
Appears in 1 contract
Sources: Merger Agreement (Immunomedics Inc)
Capitalization, Etc. (a) The authorized share capital stock of the Company consists of: is $50,000, consisting of (i) twenty-five million (25,000,000) shares of 4,000,000 Company Common StockOrdinary Shares, $.005 par value $0.01 per share, of which, as of August 31, 1998, 8,076,404 which 89,199 shares (which amount does not materially differ from the amount are issued and outstanding as of the date of this Agreement) have been issued and are outstanding; Agreement and (ii) five hundred thousand (500,000) shares of preferred stock1,000,000 Company Preferred Shares, $1.00 par value $0.01 per share, of which no shares 255,647 have been issued and are outstanding as of the date of this Agreement. Part 2.3(a) of the Company Disclosure Schedule sets forth the capitalization of the Company as of the date of this Agreement, including the number of shares of the following: (i) issued and outstanding Company Ordinary Shares; (ii) unvested Company Ordinary Shares and (iii) each series of Company Preferred Shares. The Company does not hold any shares of its share capital as treasury shares. All of the outstanding shares of Company Common Stock Ordinary Shares and Company Preferred Shares have been duly authorized and validly issued, and are fully paid and nonassessablenon-assessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations.
(i) None of the outstanding shares of Company Common Stock Ordinary Shares or Company Preferred Shares is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (iiright that has not been waived by the relevant shareholder(s) thereof and none of the outstanding shares of Company Common Stock Ordinary Shares or Company Preferred Shares is subject to any right of first refusal in favor of the Company; and (iii) . Except as contemplated herein, there is no Acquired Corporation Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Company Common StockOrdinary Shares or Company Preferred Shares. Upon consummation of the MergerThe Company is not under any obligation, (A) the shares of Parent Common Stock issued in exchange for nor is it bound by any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchaseit may become obligated, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding Company Ordinary Shares or other securities. Part 2.3(a) of the Company Disclosure Schedule accurately and completely describes all repurchase rights held by the Company with respect to Company Ordinary Shares (including shares issued pursuant to the exercise of share options) and Company Preferred Shares, and specifies, with respect to such repurchase rights, each holder of Company Ordinary Shares or Company Preferred Shares, the date of purchase of such Company Ordinary Shares or Company Preferred Shares, the number of Company Ordinary Shares or Company Preferred Shares subject to such repurchase rights, the purchase price paid by such holder, the vesting schedule under which such repurchase rights lapse, and whether the holder of such Company Ordinary Shares or Company Preferred Shares filed an election under Section 83(b) of the Code with respect to such Company Ordinary Shares or Company Preferred Shares within 30 days of purchase. Each share of Company Preferred Shares is convertible into one share of Company Ordinary Shares (and shall be so converted prior to the Effective Time). The Company has never issued certificates representing any shares of Company Common StockOrdinary Shares or Company Preferred Shares and all shares of Company Share Capital are uncertificated.
(b) As Except for the Company share option plans identified in Part 2.3(b) of August 31the Company Disclosure Schedule (the “Company Share Option Plans”), 1998, 957,725 shares (which amount the Company does not materially differ from the amount subject to options outstanding as of the date of this Agreement) of Company Common Stock are subject to issuance pursuant to outstanding options to purchase Company Common Stockhave any share option plan or any other plan, program, agreement or arrangement providing for any equity or equity-based compensation for any Person. (Stock options granted by the Company pursuant to the Company's stock option plans are referred to in this Agreement as "Company Options.") Part 2.3(b)(i2.3(b) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of August 31, 1998the date of this Agreement: (i) the particular plan pursuant to which such Company Option was grantedname of the option holder; (ii) the name of the optionee; (iii) the number of shares of Company Common Stock Ordinary Shares subject to such Company Option; (iviii) the exercise price of such Company Option; (viv) the date on which such Company Option was granted; (viv) the applicable vesting schedule and schedule, including the extent to which such Company Option is number of vested and exercisable as of the date of this Agreementunvested shares; and (viivi) the date on which such Company Option expires; and (vii) whether such Company Option is an “incentive share option” (as defined in the Code) or a non-qualified share option. The Company has delivered made available to Parent accurate and complete copies of all stock option plans pursuant to which the Company has ever granted stock options share options, and the form forms of all stock share option agreements evidencing such options. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Option.
(c) As of Except for the date of this Agreement, six hundred seventy-nine thousand, seven hundred twenty-three (679,723) shares of outstanding Company Common Stock are subject to issuance pursuant to outstanding warrants to purchase Company Common Stock ("Company Warrants"). Part 2.3(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Warrant outstanding as of the date of this Agreement: (i) the name of the warrant holder; (ii) the number of shares of Company Common Stock subject to such Company Warrant; (iii) the exercise price of such Company Warrant; (iv) the date on which such Company Warrant was granted; (v) the applicable vesting schedule and the extent to which such Company Warrant is vested and exercisable as of the date of this Agreement; and (vii) the date on which such Company Warrant expires. The Company has delivered to Parent accurate and complete copies of all agreements, certificates and other documents evidencing all warrants which the Company has ever granted.
(d) Except Options or as set forth in Parts 2.3(b), 2.3(c) or on Part 2.3(d) of the Company Disclosure Schedule Schedule, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or share capital or other securities of the Company; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or share capital or other securities of the Company; (iii) shareholder rights plan (or similar plan commonly referred to as a "“poison pill"”) or Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its share capital stock or any other securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of share capital stock or other securities of the Company. There are no outstanding or authorized share appreciation, phantom share, profit participation or other similar rights with respect to the Company.
(ed) All outstanding shares of Company Common StockOrdinary Shares, all outstanding Company OptionsPreferred Shares, all outstanding Company Warrants options, warrants and all outstanding shares of capital stock of each Subsidiary other securities of the Company have been issued and granted in material compliance with (i) all applicable securities laws and other applicable Legal Requirements, Requirements and (ii) all requirements set forth in applicable Contracts.
(f) All of the outstanding shares of capital stock of each of the Entities identified in Part 2.1(a)(i) of the Company Disclosure Schedule are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Inotek Pharmaceuticals Corp)