Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 Company Shares, 1,000,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Preferred Shares”), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23, 2007: (i) 373,641,481 Company Shares were issued (and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 shares of Series B Preferred were reserved for future issuance upon exercise of the Company Rights; (iv) 40,468,000 Company Shares were reserved for future issuance pursuant to the Company Stock Plans, of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion of the Company Convertible Notes. Since August 23, 2007, the Company has not issued any Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007. All of the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rights. (b) The Company has delivered or made available to Parent copies of: (A) the Company Stock Plans, which cover the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; and (B) the forms of all award agreements with respect to the Company Stock Plans. The Company does not maintain an employee stock purchase plan. (c) Except for options, rights, securities, convertible notes and plans referred to in Section 3.3(a) and in the Company Rights Agreement, there are no outstanding (i) securities of the Company convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests in the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company. (d) Section 3.3(d) of the Company Disclosure Schedule sets forth (i) the date each Company Option was granted, (ii) the number of shares of Company Shares subject to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent. (e) There are (i) no bonds, debentures, notes or other indebtedness of the Company having the right to vote outstanding and (ii) no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of their respective capital stock or other equity interests. No Subsidiary of the Company owns any capital stock of the Company. (f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity interests of each Subsidiary have been issued and granted in compliance in all material respects with (i) the Securities Act and other Legal Requirements and (ii) all requirements of Material Contracts.
Appears in 2 contracts
Sources: Merger Agreement (Acer Inc), Merger Agreement (Gateway Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 Company Shares, 1,000,000 30,000,000 shares of Class A Common Stock, par value $0.01, Stock and 5,000,000 shares of Preferred Stockpreferred stock, $.01 par value $0.01 per share (“Preferred Shares”)value, (i) 50,000 of which are 30,000 shares have been designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible "Preferred Stock"). As of August 23the date hereof, 2007: (ia) 373,641,481 Company Shares were 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, (and not c) 0 shares of Common Stock are held by the Company as treasury shares) in its treasury, and outstanding; (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (iid) no Preferred Shares were outstanding; (iii) 1,000,000 shares of Series B Preferred were reserved for future issuance upon exercise of the Company Rights; (iv) 40,468,000 Company Shares were reserved for future issuance pursuant to the Company Stock Plans, of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion of the Company Convertible Notes. Since August 23, 2007, the Company has not issued any Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007. All of the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rights.
(b) The Company has delivered or made available to Parent copies of: (A) the Company Stock Plans, which cover the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; and (B) the forms of all award agreements with respect to the Company Stock Plans. The Company does not maintain an employee stock purchase plan.
(c) Except for options, rights, securities, convertible notes and plans referred to in Section 3.3(a) and in the Company Rights Agreement, there are no outstanding (i) securities of the Company convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests in the Company are held by the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) 's Subsidiaries. Section 3.3(d) 4.4 of the Company Disclosure Schedule Letter sets forth a complete and accurate list, as of the date hereof, of (i) the date each Company Option was grantednumber of outstanding Options and Warrants, (ii) the number of shares of Company Shares subject to each such Company OptionCommon Stock which can be acquired upon the exercise of all outstanding Options and Warrants, respectively, (iii) the number of vested Company Shares subject to each such Company Optionshares 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, (viiv) the expiration date number of shares of Common Stock which are reserved for issuance upon the exercise of outstanding Warrants, and (v) the exercise price of each such Company Optionoutstanding Option and Warrant, and (vi) the price at number of shares of Common Stock which each such 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 Option may be exercisedhas 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 3.3(d) 4.4 of the Company Disclosure Schedule with respect 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 Restricted 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 SharesDisclosure Letter, there are no Company Shares outstanding which are subject to vesting over time other shares of capital stock or upon voting securities of the satisfaction of any condition precedent.
(e) There are (i) Company, and no bondsexisting options, debentureswarrants, notes calls, subscriptions, convertible securities, and no stock appreciation rights or limited stock appreciation rights or other indebtedness rights (including rights of the Company having the right to vote outstanding and (ii) no outstanding obligations of first refusal), agreements or commitments which obligate the Company or any of its Subsidiaries to repurchaseissue, redeem transfer or otherwise acquire sell any of their respective capital stock or other equity interests. No Subsidiary of the Company owns any capital stock of the Company.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock of, or other equity interests of each Subsidiary have been issued and granted in compliance in all material respects with (i) the Securities Act and other Legal Requirements and (ii) all requirements of Material Contracts.in,
Appears in 2 contracts
Sources: Merger Agreement (M Acquisition Corp), Merger Agreement (Marcam Solutions Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 Company Shares, 1,000,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Preferred Shares”), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23, 2007of: (i) 373,641,481 Company 200,000,000 Shares, of which 57,364,623 Shares had been issued and were issued (outstanding as of the close of business on August 24, 2017 and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 10,000,000 shares of Series B Company Preferred were reserved for future issuance upon exercise of the Company Rights; (iv) 40,468,000 Company Shares were reserved for future issuance pursuant to the Company Stock PlansStock, of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion of the Company Convertible Notes. Since August 23, 2007, the Company has not issued any Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007no shares are outstanding. All of the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise the outstanding equity interests of Company Options the Company’s Subsidiaries have been duly authorized and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, and are fully paid and nonassessable and not nonassessable.
(i) None of the outstanding equity interests of the Company or any other Acquired Companies are entitled or subject to any preemptive rights.
right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (bii) The Company has delivered or made available to Parent copies of: (A) the Company Stock Plans, which cover the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; and (B) the forms of all award agreements with respect to the Company Stock Plans. The Company does not maintain an employee stock purchase plan.
(c) Except for options, rights, securities, convertible notes and plans referred to in Section 3.3(a) and in the Company Rights Agreement, there are no outstanding (i) securities of the Company convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests in the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Section 3.3(d) of the Company Disclosure Schedule sets forth (i) the date each Company Option was granted, (ii) the number of shares of Company Shares subject to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness of the Company or any other Acquired Company having the a right to vote on any matters on which the holders of the outstanding and (ii) no outstanding obligations equity interests of the Company or any other Acquired Companies have a right to vote, as applicable; and (iii) there is no Contract to which any Acquired Company is bound relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of its Subsidiaries (or from granting any option or similar right with respect to), any equity interests of the Acquired Companies. No Acquired Company is under any obligation, or bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding equity interests of their respective capital stock or other equity intereststhe Acquired Companies.
(c) As of the close of business on August 24, 2017: (i) 8,731,405 Shares were subject to issuance pursuant to Company Options granted and outstanding under the Company Equity Plan, (ii) 1,755,424 Shares were subject to issuance pursuant to Company Restricted Stock Units granted and outstanding under the Company Equity Plan, (iii) 86,850 Shares were subject to issuance pursuant to Company Warrants; (iv) 221,674 Shares were reserved for future issuance under Company Equity Plan and (v) 1,611,041 Shares were reserved for future issuance under the Company ESPP. No Subsidiary As of the close of business on August 24, 2017, the weighted average exercise price of the Company owns any capital stock Options outstanding as of that date was $42.74
(d) Except as set forth in this Section 3.3 and except for the Company Options, Company Restricted Stock Units and Company Warrants outstanding as of the Company.
date of this Agreement (fand Shares issuable upon the exercise thereof), there are no: (i) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity interests securities of each Subsidiary have been issued and granted in compliance in all material respects with (i) the Securities Act and Company or any other Legal Requirements and Acquired Company; (ii) all requirements outstanding subscriptions, options, calls, warrants or rights (whether or not currently exercisable) to acquire any shares of Material Contractsthe 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; (iii) outstanding securities, instruments, bonds, debentures, notes or obligations that 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; (iv) stockholder rights plans (or similar plans commonly referred to as a “poison pill”) or 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 (v) voting trusts or other Contract to which the Company is a party with respect to the voting of capital stock of the Company.
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 1,000,000,000 Company Shares, 1,000,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Preferred Shares”), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23, 2007of: (i) 373,641,481 200,000,000 shares of Company Shares Common Stock, of which 48,268,495 shares had been issued and were issued (outstanding as of the close of business on July 29, 2013; and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 10,000,000 shares of Series B Company Preferred were reserved for future issuance upon exercise of the Company Rights; (iv) 40,468,000 Company Shares were reserved for future issuance pursuant to the Company Stock PlansStock, of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion of the Company Convertible Notes. Since August 23, 2007, the Company has not no shares have been issued any Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007or are outstanding. All of the outstanding Company Shares are, have been duly authorized and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, and are fully paid and nonassessable and not subject to any preemptive rightsnonassessable.
(b) The Company has delivered or made available to Parent copies of: (A) the Company Stock Plans, which cover the Company Options and Restricted Company Shares that are outstanding Except as of the date of this Agreement; and (B) the forms of all award agreements with respect to the Company Stock Plans. The Company does not maintain an employee stock purchase plan.
(c) Except for options, rights, securities, convertible notes and plans referred to set forth in Section 3.3(a) and in the Company Rights Agreement, there are no outstanding (i) securities of the Company convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests in the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Section 3.3(dPart 3.3(b) of the Company Disclosure Schedule sets forth Schedule: (i) none of the date each outstanding shares of Company Option was grantedCommon Stock 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 number of outstanding shares of Company Shares Common Stock are subject to each such Company Option, any right of first refusal in favor of the Company; (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness of the Company having the a right to vote outstanding and (ii) no outstanding obligations on any matters on which the stockholders of the Company have a right to vote; and (iv) there is no Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of its Subsidiaries (or from granting any option or similar right with respect to), any shares of Company Common Stock. The Company is not under any 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 their respective capital stock Company Common Stock or other equity interestssecurities. No Subsidiary The Company Common Stock constitutes the only outstanding class of securities of the Company owns any capital registered under the Securities Act.
(c) As of the close of business on July 29, 2013: (i) 4,519,867 shares of Company Common Stock were subject to issuance pursuant to Company Options granted and outstanding under the 2010 Plan; (ii) 359,500 shares of Company Common Stock were subject to issuance pursuant to Company Options 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 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 Offer Price); (iv) 631,040 shares of Company Common Stock were subject to issuance pursuant to Company Options granted and outstanding under the 2006 Plan; (v) 1,565,134 shares of Company Common Stock were subject to issuance pursuant to the Company Warrants; (vi) 5,366,003 shares of Company 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 ESPP. As of the close of business on July 29, 2013, the weighted average exercise price of the Company Options 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 of option, stock appreciation, phantom stock; profit participation or similar rights or equity-based awards with respect to the Company.
(fd) All Except as set forth in this Section 3.3 or in Part 3.3(d) of the Company Disclosure Schedule, there are no: (i) outstanding shares of capital stock of, or other equity interest in, the Company Shares or Company Equity Awards, other than Company Options; (including Restricted Company Sharesii) and all outstanding Company Options and all outstanding subscriptions, options, calls, warrants or 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 equity interests securities of the Company, in each Subsidiary have been case other than derivative securities not issued and granted in compliance in all material respects with by the Company; (iiii) outstanding securities, instruments, bonds, debentures, notes or obligations that are or may become convertible into or exchangeable for any shares of the Securities Act and capital stock or other Legal Requirements and securities of the Company; or (iiiv) all requirements stockholder rights plans (or similar plans commonly referred to as a “poison pill”) or Contracts under which the Company is or may become obligated to sell or otherwise issue any shares of Material Contractsits capital stock or any other securities.
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 Parent consists of 1,000,000,000 Company Shares, 1,000,000 5,000,000 shares of Class A preferred stock, none of which are outstanding, and 150,000,000 shares of Parent Common Stock, par value $0.01of which, and 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Preferred Shares”), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23, 2007: (i) 373,641,481 Company Shares were issued (and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 shares of Series B Preferred were reserved for future issuance upon exercise of the Company Rights; (iv) 40,468,000 Company Shares were reserved for future issuance pursuant to the Company Stock Plans, of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion of the Company Convertible Notes. Since August 23, 2007, the Company has not issued any Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007. All of the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rights.
(b) The Company has delivered or made available to Parent copies of: (A) the Company Stock Plans, which cover the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; , 41,299,598 shares are issued and outstanding.
(Bb) the forms The authorized capital of all award agreements with respect to the Company Stock Plans. The Company does not maintain an employee stock purchase planMerger Sub consists of 1,000 shares of common stock, of which 1,000 shares are issued and outstanding and held of record and beneficially owned by Parent.
(c) Except 8,148,773 shares of Parent Common Stock are reserved for issuance under Parent’s Amended and Restated 2001 Equity Incentive Plan to officers, directors, employees and consultants, of which, 2,379,283 shares have been granted as stock options under such plan and, as of the date of this Agreement, are outstanding, 1,262,408 shares have been issued upon exercise of stock options or as direct stock grants, and 23,485 shares have been repurchased under such plan and 4,530,567 shares remain available for future grant as stock options under such plan or as direct stock grants to officers, directors, employees and consultants; 600,000 shares of Parent Common Stock are reserved for issuance under Parent’s 2005 Non-Employee Directors’ Stock Option Plan to directors, of which, 234,375 shares have been granted as stock options under such plan and, as of the date of this Agreement, are outstanding, no shares have been issued upon exercise of stock options, rights, securities, convertible notes and plans referred 365,625 shares remain available for future grant as stock options under such plan to in Section 3.3(a) directors; and in the Company Rights Agreement, there are no outstanding (i) securities of the Company convertible into or exchangeable for 1,450,000 shares of capital stock Parent Common Stock are reserved for issuance under Parent’s 2005 Employee Stock Purchase Plan to employees, of or other voting securities or equity interests in the Companywhich, (ii) options, warrants or other rights or arrangements 449,961 shares have been issued under such plan and 1,039,000 shares remain available for future issuance under such plan to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.employees;
(d) Except as described in this Section 3.3 and as set forth in Part 3.3(d) of the Company Parent Disclosure Schedule sets forth (i) the date each Company Option was granted, (ii) the number of shares of Company Shares subject to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company SharesSchedule, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (iw) no bonds, debentures, notes or other indebtedness of the Company having the right to vote outstanding and (ii) no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of their respective capital stock or other equity interests. No Subsidiary of the Company owns any capital stock of the Company.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other securities of Parent or Merger Sub; (x) no options, warrants, convertible or exchangeable securities or other rights (including conversion rights, preemptive rights, co-sale rights, rights of first refusal or other similar rights) to acquire from Parent or Merger Sub, or to cause Parent or Merger Sub to issue, sell or return any capital stock or other securities; (y) no phantom stock rights, stock appreciation rights or other equity interests related rights of each Subsidiary Parent or Merger Sub and (z) no agreements permitting or obligating Parent or Merger Sub to issue, sell, redeem or purchase any shares of capital stock or other securities of Parent or Merger Sub.
(e) All of the outstanding shares of Parent Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. All shares of outstanding Parent Common Stock and all outstanding stock options exercisable for Parent Common Stock have been issued and granted in compliance with all applicable securities laws. Except as set forth in all material respects Part 3.3(e) of the Parent Disclosure Schedule, neither Parent, nor, to the Knowledge of Parent, any stockholder of Parent, is a party to any voting agreement, voting trust, proxy, registration rights agreement or stockholders agreement relating to the Parent Common Stock or Parent preferred stock.
(f) No dividends have been declared on, or are owing or payable with (i) the Securities Act and other Legal Requirements and (ii) all requirements respect to, any of Material ContractsParent’s capital stock.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (RHL Group, Inc.), Agreement and Plan of Merger and Reorganization (Favrille Inc)
Capitalization, Etc. (a) The As of the close of business on September 18, 2013 (Pacific time):
(i) the authorized capital stock of the Company Applied consists of 1,000,000,000 Company Shares, 1,000,000 of: (A) 2,500,000,000 shares of Class A Applied Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Preferred Shares”), (i) 50,000 of which 1,204,053,948 shares have been issued and are designated as Series A Convertible Preferred Stock, outstanding; and (iiB) 1,000,000 shares of Applied Preferred Stock, of which no shares have been issued or are designated as Series B Junior Participating Preferred Stock outstanding;
(“Series B Preferred”ii) and Applied holds 717,020,038 shares of its capital stock in its treasury;
(iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23, 2007: (i) 373,641,481 Company Shares were issued (and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 649,250 shares of Series B Preferred were reserved for future issuance upon exercise of the Company Rights; Applied Common Stock are Restricted Shares;
(iv) 40,468,000 Company Shares were 4,336,046 shares of Applied Common Stock are subject to issuance pursuant to Applied Options;
(v) 160,699,060 shares of Applied Common Stock are reserved for future issuance pursuant to the Company Applied RSUs;
(vi) 109,000 shares of Applied Common Stock Plans, of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were are reserved for future issuance upon conversion pursuant to Applied Performance Units;
(vii) 40,362,556 shares of Applied Common Stock are reserved for issuance under the Company Convertible Notes. Since August 23Applied ESPPs; and
(viii) no shares of Applied Common Stock are reserved for future issuance pursuant to equity awards not yet granted under the Applied Equity Plans, 2007, the Company has not issued any Company Shares other than as a result the Applied ESPPs. From the close of business on September 18, 2013 (Pacific time) to the date of this Agreement, there have been no issuances by Applied of shares of capital stock or voting securities of, or other equity interests in, Applied, other than the issuance of Applied Common Stock: (A) in connection with the Applied ESPP; (B) upon the exercise of Company Options reflected Applied Options; or (C) upon the vesting or settlement of Applied RSUs, Applied Performance Units, Restricted Shares of Applied Common Stock, or other Applied Equity Awards, in each case, that were outstanding at the immediately preceding sentence as outstanding as close of August 23business on September 18, 20072013 (Pacific time) and in accordance with their terms in effect at such time. All of the outstanding Company Shares are, shares of Applied Common Stock have been duly authorized and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, and are fully paid and nonassessable and not subject to any preemptive rightsnonassessable.
(b) The Company has delivered or made available to Parent copies of: As of the close of business on September 20, 2013 (AJapan time):
(i) the Company authorized capital stock of TEL consists of 300,000,000 shares of TEL Common Stock, of which 179,187,684 shares have been issued and are outstanding;
(ii) TEL holds 1,423,227 shares of its capital stock in its treasury;
(iii) 4,980 TEL Subscription Rights have been issued and are outstanding, and 497,800 shares of TEL Common Stock Plansare subject to those outstanding TEL Subscription Rights; and
(iv) no shares of TEL Common Stock are reserved for future issuance pursuant to equity awards not yet granted under the TEL Equity Plans or the TEL ESPP. From the close of business on September 20, which cover the Company Options and Restricted Company Shares that are outstanding as of 2013 (Japan time) to the date of this Agreement; , there have been no issuances by TEL of shares of capital stock or voting securities of, or other equity interests in, TEL, other than the issuance of TEL Common Stock upon the vesting, exercise or settlement of TEL Subscription Rights that were outstanding at the close of business on September 20, 2013 (Japan time) and (B) in accordance with their terms in effect at such time. All of the forms outstanding shares of all award agreements with respect to the Company TEL Common Stock Plans. The Company does not maintain an employee stock purchase planhave been duly authorized and validly issued, and are fully paid and nonassessable.
(c) Except for options, rights, securities, convertible notes and plans referred to in Section 3.3(a) and in the Company Rights Agreement, there are no outstanding (i) securities None of the Company convertible into or exchangeable for outstanding shares of capital stock Applied Common Stock or TEL Common Stock is entitled or subject to any preemptive right, right of repurchase or other voting securities forfeiture, right of participation, right of maintenance or equity interests any similar right, except that any Restricted Share of Applied Common Stock is subject to forfeiture to or a right of repurchase in the Company, favor of Applied; (ii) optionsnone of the outstanding shares of Applied Common Stock or TEL Common Stock is subject to any right of first refusal in favor of Applied and TEL, warrants respectively; and (iii) there is no Contract of Applied or other rights TEL relating to the voting or arrangements to acquire registration of, or other obligations restricting any Person from purchasing, selling, pledging or commitments to issueotherwise disposing of (or from granting any option or similar right with respect to), any capital stock shares of Applied Common Stock or other voting securities or ownership interests inTEL Common Stock, or any securities convertible into of any Significant Subsidiary of any of any Applied Entity or exchangeable for any capital stock of or other voting securities or ownership interests in TEL Entity. Except pursuant to the Company or (iii) restricted sharesTEL ESPP, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Section 3.3(d) none of the Company Disclosure Schedule sets forth (i) the date each Company Option was grantedApplied Entities or TEL Entities is under any obligation, (ii) the number of shares of Company Shares subject or is bound by any Contract pursuant to each such Company Optionwhich it may become obligated, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness of the Company having the right to vote outstanding and (ii) no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any outstanding shares of their respective Applied Common Stock or TEL Common Stock.
(d) Each of Applied and TEL has Made Available to the other accurate and complete copies of all equity plans pursuant to which it has granted any outstanding Restricted Shares, Applied Equity Awards, Applied ESPP Options and TEL Subscription Rights, and the forms of all Restricted Share, Applied Equity Award, Applied ESPP Option and TEL Subscription Right agreements evidencing such awards.
(e) Except as set forth in Sections 3.3(a) and 3.3(b), 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 equity interests. No Subsidiary securities of any of the Company owns Applied Entities or TEL 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 CompanyApplied Entities or TEL Entities; (iii) outstanding or authorized stock appreciation rights, phantom stock, profit participation or similar rights or equity-based awards with respect to any of the Applied Entities or TEL Entities; or (iv) stockholder rights plan (or similar plan commonly referred to as a “poison pill”) or Contract under which any of the Applied Entities or TEL Entities is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities.
(f) All outstanding Company Shares (including Restricted Company Shares) shares of Applied Common Stock and TEL Common Stock, and all outstanding Company Options options and all outstanding shares other securities of capital stock or other equity interests of each Subsidiary the Applied Entities and TEL Entities, have been issued and granted in compliance compliance: (i) in all material respects with (i) the Securities Act all applicable securities laws and other applicable Legal Requirements Requirements; and (ii) with all requirements set forth in applicable Contracts, except where the failure to be so issued or granted, individually or in the aggregate, has not had, and would not reasonably be expected to have, a Material Adverse Effect on Applied or a Material Adverse Effect on TEL, as the case may be.
(g) All of Material Contractsthe outstanding shares of capital stock of each of the Applied Subsidiaries and TEL 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 Applied and TEL, respectively, (except with respect to those Applied Subsidiaries or TEL Subsidiaries organized under the laws of 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 which case, such directors, employees or agents may hold de minimis amounts of such capital stock that do not adversely affect Applied’s or TEL’s control or governance thereof in any material respect), free and clear of any Encumbrances (other than restrictions on transfer imposed by applicable securities laws).
Appears in 2 contracts
Sources: Business Combination Agreement, Business Combination Agreement (Applied Materials Inc /De)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 Company Shares, 1,000,000 of: (i) 800,000,000 shares of Class A Company Common Stock; and (ii) 100,000,000 shares of preferred stock, $0.00001 par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Company Preferred SharesStock”). As of 5:00 p.m. (California time) on October 25, 2021 (the “Company Listing Date”): (i) 50,000 148,929,117 shares of Company Common Stock were issued and outstanding (which are designated as Series A Convertible Preferred Stock, amount includes shares of Company Restricted set forth in Section 2.3(b)(iv)); (ii) 1,000,000 no shares of which are designated as Series B Junior Participating Company Preferred Stock (“Series B Preferred”) were issued and outstanding; and (iii) 50,000 no shares of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23, 2007: (i) 373,641,481 Company Shares were issued (and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares Common Stock were held by the Company as treasury shares. There are no shares of Company Common Stock held by any of the Company’s Subsidiaries. There is no Company Contract relating to the voting or registration of any shares of Company Common Stock. Except pursuant to Company Equity Plans and the agreements evidencing outstanding Company Equity Awards, none of the Acquired Companies is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock or other securities.
(b) As of 5:00 p.m. (California time) on the Company Listing Date: (i) 15,044,092 shares of Company Common Stock were subject to issuance pursuant to Company options granted and outstanding under the Company Equity Plans (“Company Options”); (ii) no Preferred Shares were outstanding5,416,004 shares of Company Common Stock are reserved for future issuance pursuant to the Company’s 2018 Employee Stock Purchase Plan, as amended August 22, 2019 (the “Company ESPP”); (iii) 1,000,000 6,647,631 shares of Series B Preferred Company Common Stock were reserved for future issuance issuable upon exercise settlement or vesting of the outstanding Company Rightsrestricted stock units (“Company RSUs”); (iv) 40,468,000 229,661 shares of restricted Company Shares Common Stock were unvested pursuant to Company restricted awards granted and outstanding under the Company Equity Plans (“Company Restricted Stock”); (v) no shares of Company Common Stock were subject to stock appreciation rights, whether granted under the Company Equity Plans or otherwise; (vi) no Company Equity Awards were outstanding other than those granted under the Company Equity Plans; and (vii) 16,963,795 shares of Company Common Stock were reserved for future issuance pursuant to Company Equity Awards not yet granted under the Company Equity Plans.
(c) Part 2.3(c) of the Company Disclosure Schedule accurately sets forth the following information with respect to each Company Equity Award outstanding as of 5:00 p.m. (California time) on the Company Listing Date: (1) the Company Equity Plan (if any) pursuant to which such Company Equity Award was granted; (2) the name of the holder of such Company Equity Award; (3) the number of shares of Company Common Stock Plans, of which 27,876,699 Company Shares were subject to outstanding such Company Options Equity Award (including, for Company Equity Awards subject to performance-based vesting requirements, if any, both the target and 2,876,177 were Restricted the maximum number of shares of Company SharesCommon Stock); (4) the exercise price (if any) of such Company Equity Award; (5) the date on which such Company Equity Award was granted; (6) the date on which such Company Equity Award expires; (7) 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; (8) 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 (v9) approximately 34,762,457 whether the vesting of such Company Shares Equity Award differs materially from the Company’s standard vesting schedule. 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 Equity Awards were reserved for future issuance upon conversion of recorded on the Company’s financial statements (including any related notes thereto) contained in the Company Convertible Notes. Since August 23, 2007, the Company has not issued any Company Shares other than as a result of the exercise of Company Options reflected SEC Reports in the immediately preceding sentence as outstanding as of August 23, 2007. All of the outstanding Company Shares areaccordance with GAAP, and all Company Shares which may be issued, upon exercise no such grants involved any “back dating,” “forward dating” or similar practices with respect to the effective date of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rightsgrant (whether intentionally or otherwise).
(bd) The Company has delivered or made available Made Available to Parent accurate and complete copies of: of all equity-based plans or, if not granted under an equity plan, such other Contract, pursuant to which any stock options, stock appreciation rights, restricted stock units, deferred stock units or restricted stock awards (Aincluding all outstanding Company Equity Awards, whether payable in equity, cash or otherwise) the Company Stock Plans, which cover the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; , and (B) the forms of all stock option, stock appreciation right, restricted stock unit, deferred stock unit and restricted stock award agreements with respect to the Company Stock Plans. The Company does not maintain an employee evidencing such stock purchase plan.
(c) Except for options, rights, securities, convertible notes and plans referred to in Section 3.3(a) and in the Company Rights Agreement, there are no outstanding (i) securities of the Company convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests in the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance sharesrestricted stock units, contingent value rightsdeferred stock units or restricted stock awards (including all outstanding Company Equity Awards, “phantom” stock whether payable in equity, cash or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Companyotherwise).
(de) Section 3.3(dExcept (x) of the Company Disclosure Schedule sets forth (i) the date each Company Option was granted, (ii) the number of shares of Company Shares subject to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d2.3(a) and 2.3(b) and (y) for changes since 5:00 p.m. (California time) on the Company Listing Date resulting from the exercise of Company Options or the vesting of Company RSUs or Company Restricted Stock, in each case, outstanding as of the Company Disclosure Schedule Listing Date and in accordance with respect to Restricted Company Sharestheir terms, there are no Company Shares outstanding which are subject to vesting over time or upon as of the satisfaction date of any condition precedent.
(e) There are this Agreement: (i) no bonds, debentures, notes or other indebtedness of the Company having the right to vote outstanding and (ii) no outstanding obligations of the Company or does not have any of its Subsidiaries to repurchase, redeem or otherwise acquire any of their respective capital stock or other equity interests. No Subsidiary of the Company owns any capital stock of the Company.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity interests outstanding; and (ii) other than the Company ESPP, there is no (A) outstanding equity-based compensation award, subscription, option, call, warrant or right (whether or not currently exercisable) issued or granted by any of each Subsidiary the Acquired Companies to acquire any shares of the capital stock or other securities of any of the Acquired Companies, (B) outstanding security, instrument or obligation issued, granted or entered into by any of the Acquired Companies that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the Acquired Companies or (C) stockholder rights plan (or similar plan commonly referred to as a “poison pill”) or Contract under which any of the Acquired Companies is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities.
(f) All outstanding shares of Company Common Stock, options, warrants, equity-based compensation awards (whether payable in equity, cash or otherwise) and other securities of the Acquired Companies have been issued and granted in material compliance in all material respects with with: (i) the Securities Act all applicable securities laws and other applicable Legal Requirements Requirements; and (ii) all requirements the terms of Material applicable Contracts.
(g) All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable and free of any preemptive rights. All of the outstanding shares of capital stock of each of the Company’s Subsidiaries have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights, and are owned directly or indirectly by the Company, free and clear of any Encumbrances, except for restrictions on transfer under applicable securities laws and Permitted Encumbrances.
Appears in 2 contracts
Sources: Merger Agreement (Momentive Global Inc.), Merger Agreement (Momentive Global Inc.)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 Company Shares, 1,000,000 of: (i) 200,000,000 shares of Class A Company Common Stock, par value $0.01, and 5,000,000 of which (A) 26,266,494 shares of Preferred StockCompany Common Stock had been issued and were outstanding as of March 16, par value $0.01 per share 2012 (the “Preferred Shares”), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B PreferredCapitalization Date”) and (iiiB) 50,000 672,608 shares of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23, 2007: (i) 373,641,481 Company Shares were issued (and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares Common Stock were held by the Company in its treasury as treasury sharesof the Capitalization Date; and (ii) 10,000,000 shares of Company Preferred Stock, 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) no Preferred Shares were outstanding787,177 shares of Company Common Stock are subject to issuance pursuant to outstanding Company RSUs; (iii) 1,000,000 1,335,905 shares of Series B Preferred were reserved for future issuance upon exercise of the Company Rights; (iv) 40,468,000 Company Shares were Common Stock are reserved for future issuance pursuant to the Company Equity Plans; (iv) 283,298 shares of Company Common Stock Plans, of which 27,876,699 are reserved for future issuance pursuant to the Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company SharesESPP; and (v) approximately 34,762,457 500,000 shares of Company Shares were Preferred Stock are reserved for future issuance upon conversion of pursuant to the Amended and Restated Rights Agreement between the Company Convertible Notes. Since August 23and American Stock Transfer & Trust Company, 2007LLC, the Company has not issued any Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding dated as of August 233, 20072009, as amended (the “Rights Agreement”). All of the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rights.
(b) The Company has delivered or made available to Parent or its counsel copies of: (A) of the Company Stock PlansESPP, which cover the Company Equity Plans and the forms of stock option and restricted stock unit agreements evidencing the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; and (B) the forms of all award agreements with respect to the Company Stock Plans. The Company does not maintain an employee stock purchase planRSUs.
(c) All of the issued and outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable and free of preemptive rights. Except for options, rights, securities, convertible notes agreements, instruments, obligations and plans referred to in Section 3.3(a) 2.3(b), including the Rights under, and in as such term is defined in, the Company 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 no outstanding (i) securities of the Company convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests in of the Company and there is no: (i) outstanding subscription, option, call, warrant or right to acquire any shares of the capital stock or other equity securities of the Company or any Subsidiary of the Company, ; (ii) optionsstock appreciation right, warrants 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 rights equity equivalent or arrangements to acquire equity-based awards or other obligations rights; (iii) outstanding security, instrument or commitments to issue, any capital stock obligation of or other voting securities or ownership interests in, the Company or any securities Subsidiary of the Company that is or may become convertible into or exchangeable for any capital stock shares of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities equity security of the Company or ownership interests in any Subsidiary of the Company; or (iv) stockholder rights plan (or similar plan commonly referred to as a “poison pill”) under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or other equity securities.
(d) Section 3.3(d2.3(d) of the Company Disclosure Schedule sets forth (i) the date each Company Option was granted, (ii) the number of shares of Company Shares subject to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date a true and complete list of each such Company OptionSubsidiary of the Company, and (vi) the price at which each such Company Option may be exercisedincluding its jurisdiction of formation. Except as set forth in Section 3.3(d) for the capital stock of, or other equity or voting interests in, its Subsidiaries, the Company 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 Company Disclosure Schedule with respect to Restricted Company Sharesforegoing, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness of the Company having the right to vote outstanding and (ii) no outstanding obligations of the Company nor is it or any of its Subsidiaries under any obligation to repurchaseform or participate in, redeem provide funds to or otherwise acquire make any of their respective loan, capital stock contribution, guarantee, credit enhancement or other equity interestsinvestment in any Person. No Subsidiary All of the Company owns any capital stock of the Company.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity interests of each Subsidiary of the Company’s Subsidiaries have been issued duly authorized and granted in compliance in all material respects 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 encumbrances.
(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 (i) the Securities Act and other Legal Requirements and (ii) all requirements stockholders of Material Contractsthe 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 1,000,000,000 30,000,000 Company Shares, 1,000,000 Shares and 200,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share preferred stock (“Preferred Shares”), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23July 30, 20072008: (i) 373,641,481 16,580,886 Company Shares were issued (and not held by the 16,579,886 Company as treasury shares) and shares were outstanding; (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 shares of Series B Preferred 3,043,646 Company Shares were reserved for future issuance issuable upon exercise of Company Warrants that were issued and outstanding; (iii)(A) 1,613,535 Company Shares were issuable upon exercise of options issued pursuant to the Company’s 2007 Equity Incentive Plan and (B) 600,666 Company RightsShares were issuable upon exercise of options issued pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended; and (iv) 40,468,000 954,545 Company Shares were issuable upon conversion of the Company Debentures. As of July 30, 2008, 1,185,694 Company Shares were reserved for future issuance pursuant to the Company Stock PlansCompany’s 2007 Equity Incentive Plan, of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 431,797 Company Shares were reserved for future issuance upon conversion of pursuant to the Company Convertible Notes. Since August 23, 2007, the Company has not issued any Company’s Employee Stock Purchase Plan and 0 Company Shares other than were reserved for future issuance pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007amended. All of the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rights.
(b) The Company has delivered or made available to Parent copies of: of each of (A) the Company Stock Equity Plans, which cover the stock options and restricted stock awards granted by the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; , and (B) the forms of all stock option agreements and restricted stock award agreements with respect to the Company Stock Plans. The Company does not maintain an employee evidencing such options and stock purchase planawards.
(cb) Except for options, rights, securities, convertible notes securities and plans referred to in Section 3.3(a), there is no: (i) and in outstanding option or right to acquire from the Company Rights Agreement, there any shares of the capital stock of the Company; or (ii) outstanding security of the Company that is convertible into or exchangeable for any Company Shares.
(c) There are no outstanding (i) securities of any of the Company Company’s Subsidiaries convertible into or exchangeable for shares of capital stock of of, or other equity or voting securities or equity interests in interest in, any Subsidiary of the Company, (ii) options, warrants warrants, rights or other rights commitments or arrangements agreements to acquire from any of the Company’s Subsidiaries, or other obligations or commitments that obligate any of the Company’s Subsidiaries to issue, any capital stock of of, or other equity or voting securities or ownership interests interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, (iii) 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 of, or other equity or voting securities or ownership interests in the Company or interest (iiiincluding any voting debt) restricted sharesin, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Section 3.3(d) Subsidiary of the Company Disclosure Schedule sets forth (the items in clauses (i) the date each Company Option was granted), (ii) the number of shares of Company Shares subject to each such Company Option, and (iii) ), together with the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) capital stock of the Company Disclosure Schedule with respect to Restricted Company Shares, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness Subsidiaries of the Company having the right Company, being referred to vote outstanding and collectively as “Subsidiary Securities”) or (iiiv) no outstanding other obligations of by the Company or any of its Subsidiaries to make any payments based on the price or value of any Subsidiary Securities. There are no Contracts or arrangements of any kind which obligate any of the Company’s Subsidiaries to repurchase, redeem or otherwise acquire any of their respective capital stock or other equity interests. No outstanding Subsidiary of the Company owns any capital stock of the CompanySecurities.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity interests of each Subsidiary have been issued and granted in compliance in all material respects with (i) the Securities Act and other Legal Requirements and (ii) all requirements of Material Contracts.
Appears in 2 contracts
Sources: Merger Agreement (Simtek Corp), Merger Agreement (Cypress Semiconductor Corp /De/)
Capitalization, Etc. (a) The authorized capital stock shares of the Company consists of 1,000,000,000 700,000,000 Common Shares. As of the date hereof, (a) 267,337,252 Common Shares are outstanding, (b) no Common Shares and no preferred shares are held by the Company Sharesin its treasury, 1,000,000 (c) no Common Shares or preferred shares of Class A Common Stock, par value $0.01the Company are held by the Company's Subsidiaries, and 5,000,000 (d) no preferred shares of Preferred Stockthe Company are outstanding. Section 3.4 of the Company Disclosure Letter sets forth a complete and accurate list, par value $0.01 per share (“Preferred Shares”)as of the date hereof, of (i) 50,000 the number of which are designated as Series A Convertible Preferred Stockoutstanding options (individually, an "Option" and collectively the "Options") outstanding under any share option plan adopted or assumed by the Company or otherwise outstanding and issued to an employee, director, consultant or advisor of the Company or any of its Subsidiaries, (ii) 1,000,000 shares the number of Common Shares which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and can be acquired upon the exercise of all outstanding Options, (iii) 50,000 the number of Common Shares and preferred shares which are designated as Series C Redeemable Convertible Preferred Stock. As reserved for issuance upon the exercise of August 23, 2007: (i) 373,641,481 Company Shares were issued (outstanding Options and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 number of shares of Series B Preferred were which are reserved for future issuance upon grants under any share option plan adopted or assumed by the Company, and (iv) the exercise price of each outstanding Option. Except as set forth in Section 3.4 of the Company Rights; (iv) 40,468,000 Company Shares were reserved for future issuance pursuant to the Company Stock Plans, of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion of the Company Convertible Notes. Since August 23, 2007Disclosure Letter, 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 shareholders of the Company on any matter. Except as set forth in Section 3.4 of the Company Disclosure Letter, since March 31, 2000, the Company (i) has not issued any Company Common Shares other than as a result of upon the exercise of Company Options, (ii) has granted no Options reflected in the immediately preceding sentence as outstanding as to purchase Common Shares under share option plans, or (iii) has not split, combined or reclassified any of August 23, 2007its shares of capital shares. All of the issued and outstanding Company Common Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, are duly authorized, validly issued, fully paid and paid, nonassessable and not subject to any free of preemptive rights.
(b) The Company has delivered . Except as set forth above in this Section 3.4 or made available to Parent copies of: (A) in Section 3.4 of the Company Stock Plans, which cover the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; and (B) the forms of all award agreements with respect to the Company Stock Plans. The Company does not maintain an employee stock purchase plan.
(c) Except for options, rights, securities, convertible notes and plans referred to in Section 3.3(a) and in the Company Rights AgreementDisclosure Letter, there are no outstanding (i) other shares of capital shares or voting securities of the Company, and no existing options, warrants, calls, subscriptions, convertible securities, and no share appreciation rights or limited share appreciation rights or other rights (including rights of first refusal), agreements or commitments which obligate the Company convertible into or exchangeable for any of its Subsidiaries to issue, transfer or sell any shares of capital stock of or other voting securities shares of, or equity interests in the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in material assets of, the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Section 3.3(d) of the Company Disclosure Schedule sets forth (i) the date each Company Option was granted, (ii) the number of shares of Company Shares subject to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercisedits Subsidiaries. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness of the Company having the right to vote outstanding and (ii) no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of their respective capital stock or other equity interests. No Subsidiary shares of the Company owns and there are no performance awards outstanding under the share option plan or any other outstanding shares related awards. There are no voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock shares of the CompanyCompany or any of its Subsidiaries.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity interests of each Subsidiary have been issued and granted in compliance in all material respects with (i) the Securities Act and other Legal Requirements and (ii) all requirements of Material Contracts.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 Company Shares, 1,000,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Preferred Shares”), of: (i) 50,000 65,000,000 Shares, of which are designated 33,319,757 Shares were issued and outstanding (inclusive of 182,199 Company Restricted Shares) and 1,888,205 Shares were held in the treasury of the Company, in each case, as Series A Convertible Preferred Stockof the close of business on October 29, 2018 and (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Company Preferred Stock. As of August 23, 2007: (i) 373,641,481 Company Shares were issued (and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 shares of Series B Preferred were reserved for future issuance upon exercise of the Company Rights; (iv) 40,468,000 Company Shares were reserved for future issuance pursuant to the Company Stock Plans, of which 27,876,699 Company Shares no shares were subject to issued and outstanding Company Options and 2,876,177 were Restricted Company Shares; and (vor held in treasury) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion as of the Company Convertible Notesclose of business on October 29, 2018. Since August 23Between the close of business on October 29, 20072018 and the date of this Agreement, the Company has not issued any Company Shares shares of capital stock or other securities of the Company, other than as a result of upon the exercise exercise, vesting or settlement of Company Options reflected Equity Awards, in the immediately preceding sentence as each case, outstanding as of August 23the close of business on October 29, 20072018, pursuant to the terms of such Company Equity Awards. All of the outstanding Company Shares are, have been duly authorized and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, and are fully paid and nonassessable and not subject to any preemptive rightsnonassessable.
(b) The Company has delivered or made available to Parent copies of: (A) the Company Stock Plans, which cover the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; and (B) the forms of all award agreements with respect to the Company Stock Plans. The Company does not maintain an employee stock purchase plan.
(c) Except for options, rights, securities, convertible notes and plans referred to in Section 3.3(a) and in the Company Rights Agreement, there are no outstanding (i) securities of the Company convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests in the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Section 3.3(d) of the Company Disclosure Schedule sets forth (i) the date each Company Option was granted, (ii) the number of shares of Company Shares subject to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there There are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness of the Company having the right to vote outstanding and (ii) no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any capital stock or securities of their respective the Company or any of its Subsidiaries and (ii) there are no 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) with the stockholders of the Company on any matter.
(c) As of the date of this Agreement, the Company has no shares of capital stock reserved for issuance, except that, as of October 29, 2018, there were (a) 1,034,321 remaining Shares reserved for issuance under the Company Equity Plans, (b) 277,993 Shares reserved for issuance pursuant to the exercise and settlement of Company Options, (c) 1,043,361 Shares reserved for issuance upon the settlement or vesting of Company RSUs and (d) 267,155 Shares reserved for issuance upon the settlement or vesting of Company PSUs (assuming achievement of applicable performance goals at target value). As of October 29, 2018, there were 7,113.7645 Company Phantom Shares outstanding, with respect to which no Shares were reserved for issuance upon the settlement thereof. Part 3.3(c) of the Company Disclosure Schedule contains a correct and complete list of each outstanding Company Equity 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, vesting schedule, and the Company Equity Plan or Company Directors’ Plan under which such Company Equity 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 are owned, directly or indirectly, by the Company, free and clear of any Encumbrance.
(e) There are no: (i) preemptive rights or outstanding subscriptions, options, call, conversion rights, redemption rights, repurchase rights, warrants, agreements, arrangements, commitments or other rights (whether or not currently exercisable) that (A) give any Person the right to acquire any shares of the capital stock or any other securities of the Company or any of its Subsidiaries or (B) obligate the Company or any of its Subsidiaries to issue or sell any capital stock or other equity interests. No Subsidiary securities of the Company owns or any capital stock of its Subsidiaries; (ii) outstanding securities or obligations that are or may become convertible into or exchangeable for any shares of the Company.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity interests securities of each Subsidiary have been issued and granted in compliance in all material respects with the Company or any of its Subsidiaries or (iiii) stockholder rights plan (or similar plan commonly referred to as a “poison pill”) or Contract under which the Securities Act and Company or any of its Subsidiaries is or may become obligated to sell or otherwise issue or register, any shares of its capital stock or any other Legal Requirements and securities. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party relating to the voting or disposition of any shares of the capital stock or other securities of the Company or any of its Subsidiaries or granting to any Person or group of Persons the right to elect, or to designate or nominate for election, a director to the board of directors (iior similar governing body) all requirements of Material Contractsthe Company or any of its Subsidiaries.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 35,000,000 Company Shares, 1,000,000 Shares and 2,000,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share preferred stock (“"Preferred Shares”"), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23July 19, 20072005: (i) 373,641,481 14,978,324 Company Shares were issued (and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 , including 565,466 unvested restricted Company Shares were held by the Company as treasury sharesShares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 shares of Series B 200,000 Preferred Shares were reserved for future issuance upon exercise of the Company Rights; (iv) 40,468,000 options to purchase 344,058 Company Shares were reserved for future issuance pursuant to the Company Stock Plans, of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Sharesoutstanding; and (v) approximately 34,762,457 564,670 Company Shares were reserved remained available for future issuance upon conversion of or grant pursuant to the Company Convertible NotesOption Plan. Since August 23Between July 19, 20072005 and the date of this Agreement, (A) the Company has not issued any Company Shares other than as a result of in connection with the exercise of stock options outstanding on July 19, 2005, and (B) the Company Options reflected has not granted any stock options. Except as set forth in this Section 3.3(a), at the immediately preceding sentence as outstanding as close of August 23business on July 19, 20072005 no shares of capital stock of the Company were issued, reserved for issuance or outstanding. All of the issued and outstanding Company Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, are duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rights.
(b) nonassessable. The Company has delivered or made available to Parent copies of: of (A1) the Company Stock PlansOption Plan, which cover covers all of the stock options and unvested restricted stock awards granted by the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; , and (B2) the forms of all stock option agreements and restricted stock award agreements with respect to the Company Stock Plans. The Company does not maintain an employee evidencing such options and stock purchase planawards.
(cb) Except for options, rights, securities, convertible notes securities and plans referred to in Section 3.3(aPart 3.3(c) or Part 3.3(d) of the Company Disclosure Schedule and in the Company Rights Agreement, as of the date of this Agreement, there are is no outstanding option, warrant, call, right, convertible or exchangeable security, "phantom" stock right, stock appreciation right, stock-based performance unit, commitment, contract, arrangement or undertaking of any kind to which the Company or any of its Subsidiaries is a party or by which any of them is bound (i) securities obligating the Company or any of its Subsidiaries to issue, deliver, sell or transfer or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any of its Subsidiaries or any security convertible into or exercisable for or exchangeable for shares of into any capital stock of of, or other voting securities equity interest in, the Company or equity interests in the Companyany of its Subsidiaries, (ii) options, warrants obligating the Company or other rights or arrangements to acquire or other obligations or commitments any of its Subsidiaries to issue, grant, extend or enter into any capital stock of such option, warrant, call, right, security, commitment, contract, arrangement or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company undertaking or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock that gives any Person the right to receive from the Company or similar securities any of its Subsidiaries any economic benefit or right determined by reference to the economic benefits and rights accruing to acquire any holders of capital stock of, or other voting securities equity interests in, the Company or ownership interests in the Companyany of its Subsidiaries.
(dc) Section 3.3(dPart 3.3(c) of the Company Disclosure Schedule sets forth (i) contains a schedule as of the date each Company Option was granted, (ii) of this Agreement setting forth the number of shares of underlying each outstanding stock option granted by the Company Shares subject to each such Company Optionand the exercise price, vesting date (iiior dates) the number of vested Company Shares subject to each such Company Option, (vi) the and expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercisedstock option. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there There are no Company Shares outstanding which are subject to vesting over time preemptive or upon the satisfaction similar rights held by any holder of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness class of the Company having the right to vote outstanding and (ii) no outstanding obligations securities of the Company or any of its Subsidiaries with respect to repurchasesuch securities. All outstanding unvested stock options granted by the Company will accelerate at or prior to the Effective Time, redeem and all outstanding stock options granted by the Company will terminate at or otherwise acquire any of their respective capital stock or other equity interests. No Subsidiary prior to the Effective Time.
(d) Part 3.3(d) of the Company owns Disclosure Schedule contains a schedule as of the date of this Agreement setting forth the holders of restricted Company Shares granted pursuant to the Company Option Plan and the vesting date (or dates) of such restricted Company Shares. Other than repurchase rights in connection with the restricted Company Shares listed in Part 3.3(d) of the Company Disclosure Schedule, as of the date of this Agreement, the Company does not have repurchase rights with respect to any other securities of the Company.
(e) Neither the Company nor any of its Subsidiaries has outstanding any bonds, debentures, notes or other obligations providing the holders of which the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the stockholders of the Company or any of its Subsidiaries on any matter submitted to such stockholders or to a separate class of holders of capital stock of the Company or any of its Subsidiaries.
(f) Except for this Agreement, the Transaction Support Agreements and any other agreements or arrangements contemplated by this Agreement, there are no voting trusts, voting agreements or similar agreements or other arrangements to which the Company is a party or by which the Company is bound with respect to the voting of capital stock of the Company.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity interests of each Subsidiary have been issued and granted in compliance in all material respects with (i) the Securities Act and other Legal Requirements and (ii) all requirements of Material Contracts.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 Company Shares, 1,000,000 of: (i) 90,000,000 shares of Class A Company Common Stock, par value $0.01of which 36,159,576 shares had been issued and were outstanding as of the close of business on July 10, 2025 (the “Capitalization Date”); and 5,000,000 (ii) 60,000,000 shares of Company Preferred Stock, par value $0.01 per share (“Preferred Shares”), (i) 50,000 54,000,000 of which are designated were undesignated as Series A Convertible Preferred Stockto series, (ii) 1,000,000 6,000,000 shares of which are designated as Series B Junior Participating D Preferred Stock (“Series B Preferred”) and (iii) 50,000 Stock, of which are designated 4,472,791 shares had been issued and were outstanding as Series C Redeemable Convertible Preferred Stockof the Capitalization Date. As of August 23the date hereof, 2007: (i) 373,641,481 Company Shares were issued (and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 35,000 shares of Company Preferred Stock have been designated Series B E Preferred were reserved for future issuance upon exercise Stock, of which 35,000 shares are issued and outstanding as of the date hereof. No shares of capital stock of the Company Rights; (ivare held in the treasury of the Company. All of the outstanding shares of the capital stock of the Company have been duly authorized and validly issued, and are fully paid and nonassessable. During the period between the Capitalization Date and the date hereof, other than as expressly set forth in this Section 2.3(a) 40,468,000 as to Series E Preferred Stock, the Company Shares were reserved for future issuance has not issued any new shares of Company Stock except pursuant to the Company Stock Plans, exercise of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion outstanding as of the Company Convertible Notes. Since August 23Capitalization Date in accordance with their terms and, 2007since the Capitalization Date, the Company has not issued any Company Shares Options or other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007. All equity based awards.
(i) None of the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rights.
(b) The Company has delivered or made available to Parent copies of: (A) the Company Stock Plans, which cover the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; and (B) the forms of all award agreements with respect to the Company Stock Plans. The Company does not maintain an employee stock purchase plan.
(c) Except for options, rights, securities, convertible notes and plans referred to in Section 3.3(a) and in the Company Rights Agreement, there are no outstanding (i) securities of the Company convertible into or exchangeable for shares of capital stock of the Company are entitled or other voting securities subject to any preemptive right, right of repurchase or equity interests in the Companyforfeiture, right of participation, right of maintenance or any similar right; (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any none of the outstanding shares of capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or are subject to any right of first refusal in favor of the Company; (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Section 3.3(d) of the Company Disclosure Schedule sets forth (i) the date each Company Option was granted, (ii) the number of shares of Company Shares subject to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness of the Company having the a right to vote outstanding and (ii) no outstanding obligations on any matters on which the stockholders of the Company have a right to vote; and (iv) there is no Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of its Subsidiaries (or from granting any option or similar right with respect to), any shares of capital stock of the Company. The Company is not 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 their respective capital stock or other equity interests. No Subsidiary of the Company owns any capital stock of the Company. The Company Common Stock constitutes the only outstanding class of securities of the Company registered under the Exchange Act. Other than the Voting Agreements, (A) the Company is not a party to any, and to the Company’s knowledge there are no, voting trusts or other Contracts with respect to the voting of any Company Stock, and (B) there are no Contracts pursuant to which any Person is entitled to elect, designate or nominate any director of the Company.
(c) As of the close of business on the Capitalization Date: (i) 5,674,859 shares were subject to issuance pursuant to Company Options granted and outstanding under the Company Equity Plan and (ii) 5,525,141 shares were reserved for future issuance under the Company Equity Plan. Other than as set forth in this Section 2.3(c), there are no issued, reserved for issuance, outstanding or authorized stock option, restricted stock, 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.
(d) Section 2.3(d) of the Company Disclosure Schedule sets forth an accurate and complete list of all Persons (either by name or employee identification number) who hold outstanding Company Options as of the close of business on the Capitalization Date, indicating, with respect to each Company Option (i) the number of shares of Company Common Stock subject thereto, (ii) the date of grant, (iii) the vesting schedule, (iv) the per share exercise price, (v) the expiration date, (vi) whether such Company Option is intended to be an incentive stock option (within the meaning of Section 422 of the Code), (vii) whether such Company Option is subject to Section 409A of the Code, (viii) whether such Company Option may be early-exercised and the extent to which such Company Option has been early-exercised, and (ix) such Person’s relationship to the Company (e.g., employee, director, or consultant). As of the Effective Time, no former holder of a Company Option, will have any rights with respect to any Company Option other than the rights contemplated by Section 1.8. An accurate and complete copy of the Company Equity Plan has been provided to Parent, and all Company Options (A) have been granted pursuant to the Company Equity Plan, (B) are evidenced by award agreements in the forms that have been provided to Parent, (C) have been granted in accordance with the terms of the applicable Company Equity Plan and in compliance in all material respects with all applicable securities Legal Requirements or exemptions therefrom, and (D) have an exercise price per share (1) that was no less than the fair market value, as of the date of grant of such Company Option, per share of Company Common Stock underlying such Company Option determined in a manner consistent with Section 409A and (2) to the extent applicable, that was repriced in compliance with all applicable securities Legal Requirements or exemptions therefrom and in a manner that complies with Section 409A and, to the extent applicable, Section 424 of the Code. The terms of the Company Equity Plan or the Contracts evidencing the Company Options authorize the treatment of the Company Options contemplated by Section 1.8 without any required consent or approval of the holders of such Company Options.
(e) Except as set forth in this Section 2.3 (including Sections 2.3(d) of the Company Disclosure Schedule), there are no: (i) outstanding shares of capital stock of or other securities of the Company; (ii) outstanding subscriptions, options, calls, warrants or rights (whether or not currently exercisable) to acquire any shares of capital stock, restricted stock unit, restricted stock, stock appreciation rights, phantom stock, 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; (iii) outstanding securities, instruments, bonds, debentures, notes or obligations that are or may become convertible into or exchangeable for any shares of the capital stock or other securities of the Company; or (iv) stockholder rights plans (or similar plans commonly referred to as a “poison pill”) or 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.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity interests of each Subsidiary Company Stock have been offered and issued and granted in compliance in all material respects with (i) all applicable securities Legal Requirements, including the Securities Act and other “blue sky” Legal Requirements and (ii) all requirements of Material ContractsRequirements.
Appears in 1 contract
Capitalization, Etc. (a) The As of the date of this Agreement, the authorized capital stock of the Company Parent consists of 1,000,000,000 Company Shares, 1,000,000 of: (i) 137,500,000 shares of Class A Common Stockcommon stock, having a par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Preferred SharesParent Common Stock”), (i) 50,000 of which are designated as Series A Convertible Preferred Stockof October 31, 2008 37,578,384 shares were issued and outstanding; and (ii) 1,000,000 78,764,939 shares of preferred stock, having a par value of $0.01 per share (“Parent Preferred Stock”) of which are designated as (A) 9,000,000 shares of Series B Junior Participating A Preferred Stock (“Series B Preferred”) and (iii) 50,000 are authorized, all of which shares are designated as Series C Redeemable Convertible Preferred Stock. As of August 23, 2007: (i) 373,641,481 Company Shares were issued (and not held by the Company as treasury shares) and outstanding; (iiB) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no 3,533,200 shares of Series B-1 Convertible Preferred Shares were Stock are authorized, all of which are issued and outstanding; (iiiC) 1,000,000 58,904,320 shares of Series B C-1 Convertible Preferred were reserved for future issuance upon exercise Stock are authorized, 58,628,599 of the Company Rightswhich are issued and outstanding; (ivD) 40,468,000 Company Shares were reserved for future issuance pursuant to the Company 4,827,419 shares of Series D Convertible Preferred Stock Plansare authorized, all of which 27,876,699 Company Shares were subject to outstanding Company Options are issued and 2,876,177 were Restricted Company Sharesoutstanding; and (vE) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion 2,500,000 shares of the Company Series E Convertible Notes. Since August 23Preferred Stock are authorized, 2007, the Company has not none of which are issued any Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007and outstanding. All of the outstanding Company Shares areshares of Parent Common Stock and Parent Preferred Stock have been duly authorized and validly issued, and are fully paid and non-assessable.
(b) As of the date of this Agreement, Parent has reserved 27,715,756 shares of Parent Common Stock for issuance under its 1999 Stock Incentive Plan (as amended, the “Parent Equity Plan”). As of October 31, 2008, (i) 8,491,992 shares have been issued pursuant to restricted stock purchase agreements and/or the exercise of outstanding options under the Parent Equity Plan, (ii) options to purchase 16,718,490 shares have been granted and were outstanding under the Parent Equity Plan, and (iii) 2,505,274 shares remained available for future issuances of restricted stock agreements or grants of options to directors, officers, employees and consultants of Parent under the Parent Equity Plan (collectively, the foregoing options or stock purchase agreements referred to in the foregoing clauses (i) — (iii), the “Parent Options”). As of the date of this Agreement, Parent has reserved a total of (y) 275,721 shares of its Series C-1 Preferred Stock for purchase upon exercise of warrants granted to certain lenders, and (z) 699,301 shares of Parent Common Stock for purchase upon exercise of a warrant issued to ORIX Finance Equity Investors, LP (collectively, such warrants referred to in the foregoing clauses (y) — (z), the “Parent Warrants”). Except as set forth in this Section 3.2(b), or in Part 3.2(b) of the Parent Disclosure Schedule, there is no: (A) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (B) 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 Parent; (C) Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (D) to the Parent’s Knowledge, 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 Parent.
(c) All outstanding shares of Parent Common Stock and Parent Preferred Stock, and all Company Shares outstanding Parent Options and Parent Warrants, 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.
(d) The Parent’s stockholders have taken all action required to waive any rights of first offer or refusal or other preemptive rights and any antidilution or conversion price adjustments which may apply in connection with the issuance of the Parent Series E Preferred to the Company stockholders.
(e) The shares of Parent Series E Preferred to be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will beissued in the Merger will, when issuedissued in accordance with the provisions of this Agreement, duly authorized, be validly issued, fully paid and nonassessable and not subject to any preemptive rights.
(b) The Company has delivered free of restrictions on transfer other than restrictions on transfer under the Registration Rights and Stockholders’ Agreements, applicable state and federal securities laws and liens or made available to Parent copies encumbrances created by or imposed by a the holder. Based in part upon, and assuming the accuracy of: (A) , the Company Stock Plans, which cover the Company Options and Restricted Company Shares that are outstanding as representations of the date of this Agreement; and (B) the forms of all award agreements with respect to the Company Stock Plans. The Company does not maintain an employee stock purchase plan.
(c) Except for options, rights, securities, convertible notes and plans referred to in Section 3.3(a) and in the Company Rights Agreement, there are no outstanding (i) securities holders of the Company convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests Series E-1 Preferred Stock to be made in the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Section 3.3(d) of the Company Disclosure Schedule sets forth (i) the date each Company Option was granted, (ii) the number of shares of Company Shares subject to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness of the Company having the right to vote outstanding and (ii) no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of their respective capital stock or other equity interests. No Subsidiary of Investment Representation Statements, the Company owns any capital stock of Parent Series E Preferred the Company.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity interests of each Subsidiary have been Common Stock issuable upon conversion thereof will be issued and granted in compliance in all material respects with (i) the Securities Act and all applicable state securities laws. The Common Stock issuable upon conversion of the Parent Series E Preferred has been duly and validly reserved for issuance, and upon issuance in accordance with the terms of the Parent Restated Charter, will be duly and validly issued, fully paid and nonassessable and free of restrictions on transfer other Legal Requirements than restrictions on transfer under the Registration Rights and (ii) all requirements of Material ContractsStockholders’ Agreements, applicable federal and state securities laws and liens or encumbrances created by or imposed by a Purchaser.
Appears in 1 contract
Sources: Merger Agreement (Broadsoft Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 200,000,000 shares of Company Shares, Common Stock and 1,000,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share preferred stock (“Preferred Shares”), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 235:00 p.m. Pacific Time on May 15, 20072008: (i) 373,641,481 19,031,276 shares of Company Shares Common Stock were issued and outstanding (and not held by including shares of Company Common Stock included in the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares Units), of which no shares were held by unvested or were subject to any repurchase rights, risk of forfeiture or other similar condition in favor of the Company as treasury sharesCompany; (ii) no Preferred Shares were issued or outstanding; (iii) 1,000,000 33,033,013 shares of Series B Preferred Company Common Stock were reserved for future issuance issuable upon exercise of Company Warrants that were issued and outstanding (including shares of Company Common Stock issuable upon exercise of Company Warrants included in the Company RightsUnits); (iii) 3,108,618 shares of Company Common Stock were issuable upon exercise of options issued pursuant to the Company Equity Plan; and (iv) 40,468,000 17,489,813 shares of Company Shares Common Stock were issuable upon conversion of $128,200,000 aggregate principal amount of Convertible Notes. As of 5:00 p.m. Pacific Time on May 15, 2008, 2,064,090 Company Units were outstanding (which Company Units are included in the totals above). Between 5:00 p.m. Pacific Time on May 15, 2008 and the date of this Agreement, the Company has not issued any shares of Company Common Stock except upon exercise of outstanding Company Options or Company Warrants or conversion of outstanding Convertible Notes in accordance with their terms. As of the date of this Agreement, 4,366,544 shares of Company Common Stock were reserved for future issuance pursuant to the Company Stock Plans, of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion of the Company Convertible NotesEquity Plan. Since August 23, 2007, the Company has not issued any Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007. All of the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rights.
(b) The Company has delivered or made available to Parent or Parent’s legal advisor copies of: of (A) the Company Stock PlansEquity Plan, which cover covers the stock options and restricted stock awards granted by the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; , and (B) the forms of all stock option agreements and restricted stock award agreements with respect to evidencing such options and stock awards.
(b) All the outstanding shares of capital stock of the Company Stock Plans. The Company does not maintain an employee stock purchase planand each Designated Subsidiary have been duly authorized and validly issued and are fully paid and nonassessable.
(c) Except as set forth in Part 2.3(c) of the Company Disclosure Schedule: (i) none of the outstanding shares of capital stock of the Company and the Designated Subsidiaries is entitled or subject to any preemptive right or right of participation; (ii) none of the outstanding shares of the capital stock of the Company and the Designated Subsidiaries is subject to any right of first refusal or similar right in favor of the Company; and (iii) there is no agreement in place 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 the capital stock of the Company or the Designated Subsidiaries.
(d) Part 2.3(d) of the Company Disclosure Schedule accurately sets forth with respect to each outstanding Company Option under the Company Equity Plan as of 5:00 p.m. Pacific Time on May 5, 2008: (i) the name of the holder; (ii) the exercise price per share; (iii) the total number of shares subject to such Company Option; (iv) the date on which such Company Option was granted; (v) the applicable vesting schedule; and (vi) whether such Company Option is intended to qualify as an “incentive stock option” within the meaning of Section 422 of the Code. Between 5:00 p.m. Pacific Time on May 5, 2008 and the date of this Agreement: (i) the Company has not granted any Company Options; (ii) no outstanding Company Option has been amended, modified or changed; and (iii) Part 2.3(d) of the Company Disclosure Schedule shall have only changed to the extent that outstanding Company Options have been exercised in accordance with their terms. All Company Options (including those that have been exercised, terminated, expired, forfeited or otherwise cancelled) were issued at a strike price at least equal to fair market value such that the fair market value on the grant date equaled or exceeded the fair market value on the financial measurement date for each such Company Option or, with respect to Company Options that were not issued in such a manner, the Company recorded an appropriate compensation charge in its financial statements relating to such grants in the appropriate period and reported such in its financial statements and Company Returns during the required period.
(e) Except for options, rights, securities, convertible notes securities and plans referred to in Section 3.3(a2.3(a) and except as set forth in Part 2.3(d) of the Company Rights Disclosure Schedule, as of the date of this Agreement, there are no outstanding is no: (i) outstanding subscription, option, call, warrant or stock appreciation right or other right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company convertible into or exchangeable for shares any Subsidiary of capital stock of or other voting securities or equity interests in the Company, ; (ii) optionsoutstanding restricted stock award, warrants restricted stock unit award, performance stock award or other rights performance cash award; (iii) outstanding security, instrument or arrangements obligation that is or would reasonably be expected to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities become convertible into or exchangeable for any capital stock shares of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Section 3.3(d) of the Company Disclosure Schedule sets forth (i) the date each Company Option was granted, (ii) the number of shares of Company Shares subject to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness of the Company having the right to vote outstanding and (ii) no outstanding obligations of the Company or any Subsidiary of its Subsidiaries to repurchase, redeem the Company; (iv) contract under which the Company or otherwise acquire any of their respective capital stock or other equity interests. No Subsidiary of the Company owns is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (v) to the Knowledge of the Company, condition or circumstance that would reasonably be expected to provide a basis for the assertion of a valid claim by any Person to the effect that such Person is entitled to acquire or receive any capital stock of the Company or other securities of the Company.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock, options, warrants, stock appreciation rights and other securities or other equity interests of each Subsidiary the Company and the Designated Subsidiaries have been issued and granted in compliance in all material respects with all applicable securities laws and other applicable Legal Requirements.
(g) All of the outstanding membership interests or other equity interests of each of the Company’s Subsidiaries: (i) the Securities Act have been duly authorized and other Legal Requirements and validly issued; (ii) all requirements are nonassessable and free of Material Contractspreemptive rights, with no obligation to contribute additional capital; and (iii) except as set forth in Part 2.3(g) of the Company Disclosure Schedule, are owned beneficially and of record by the Company, free and clear of any Encumbrances (other than Permitted Encumbrances).
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 Company Shares, 1,000,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Preferred Shares”), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23, 2007of: (i) 373,641,481 25,000,000 shares of Company Shares were Common Stock, of which 9,805,135 shares have been issued (and not held by are outstanding as of the Company as treasury shares) and outstandingdate of this Agreement; (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 1,500,000 shares of Series Company Class B Preferred were reserved for future issuance upon exercise of the Company Rights; (iv) 40,468,000 Company Shares were reserved for future issuance pursuant to the Company Stock PlansCommon Stock, of which 27,876,699 Company Shares were subject to outstanding Company Options 1,246,882 shares have been issued and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion of the Company Convertible Notes. Since August 23, 2007, the Company has not issued any Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007. All of the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rights.
(b) The Company has delivered or made available to Parent copies of: (A) the Company Stock Plans, which cover the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; and (Biii) 2,222,223 shares of Company Preferred Stock, all of which have been designated "Series A Convertible Preferred Stock," of which 2,222,223 shares have been issued and are outstanding as of the date of this Agreement. All of the outstanding shares of Company Capital Stock have been duly authorized and validly issued, and are fully paid and non-assessable.
(b) As of the date of this Agreement: 3,188,587 shares of Company Common Stock are reserved for future issuance pursuant to stock options granted and outstanding. (Stock options granted by the Company pursuant to its stock option plans are referred to in this Agreement as "Company Options.") The Company has delivered or made available to Parent accurate and complete copies of all stock option plans pursuant to which the Company (or any of its predecessors) has ever granted stock options. Part 2.3(b) of the Company Disclosure Schedule accurately sets forth as of February 3, 1998 the names of all persons who held outstanding Company Options, and sets forth for each person as of February 3, 1998 (i) the forms plans under which Company Options have been issued to such person, (ii) the number of all award agreements with respect to vested Company Options held by such person and (iii) a vesting schedule for the unvested Company Stock Plans. The Company does not maintain an employee stock purchase planOptions held by such person.
(c) Except for options, rights, securities, convertible notes and plans referred to in Section 3.3(a) and in the Company Rights Options and as set forth in Part 2.3(c) of the Company Disclosure Schedule, as of the date of this Agreement, there are no outstanding is no: (i) outstanding subscription, option, call, warrant or right to acquire any shares of the capital stock or other securities of the Company convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests in the Company, ; (ii) optionsoutstanding security, warrants instrument or other rights obligation that is or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities will become convertible into or exchangeable for any shares of the capital stock of or other voting securities or ownership interests in of the Company (except for the 1,246,882 shares of Company Class B Common Stock outstanding as of the date of this Agreement, which are convertible into 1,246,882 shares of Company Common Stock and the 2,222,223 shares of Company Preferred Stock outstanding as of the date of this Agreement, which are convertible into 2,222,223 shares of Company Common Stock); or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock Contract under which the Company is or similar securities will become obligated to sell or rights to acquire otherwise issue any shares of its capital stock or any other voting securities or ownership interests in the Companysecurities.
(d) Section 3.3(dThe outstanding shares of capital stock of each Subsidiary are validly issued, fully paid and nonassessable and are owned beneficially and of record by the Company, free and clear of any Encumbrances.
(e) Except as set forth in Part 2.3(e) of the Company Disclosure Schedule sets forth Schedule, none of the awards, grants or other agreements pursuant to which the Company Options were issued have provisions which accelerate the vesting or right to exercise such options upon the execution of this Agreement, the consummation of the transactions contemplated hereby or any other change of control or similar event.
(if) the date each The Company Option was granted, (ii) the number of shares of Company Shares subject is not party to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Optionany Acquired Corporation Contract that obligates it to, and (vi) the price at which each such Company Option may be exercisedis not otherwise obligated to, repurchase or redeem any of its issued securities. Except as set forth in Section 3.3(dPart 2.3(f) of the Company Disclosure Schedule with respect to Restricted Company SharesSchedule, there are is no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes voting trust or other indebtedness of the Company having the right arrangement to vote outstanding and (ii) no outstanding obligations of which the Company or any of its Subsidiaries Subsidiary is a party with respect to repurchase, redeem or otherwise acquire any of their respective capital stock or other equity interests. No Subsidiary the voting of the Company owns any capital stock of the CompanyCapital Stock.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity interests of each Subsidiary have been issued and granted in compliance in all material respects with (i) the Securities Act and other Legal Requirements and (ii) all requirements of Material Contracts.
Appears in 1 contract
Sources: Merger Agreement (Pharmacopeia Inc)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 35,000,000 Company Shares, 1,000,000 Shares and 2,000,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share preferred stock (“Preferred Shares”), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23July 19, 20072005: (i) 373,641,481 14,978,324 Company Shares were issued (and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 , including 565,466 unvested restricted Company Shares were held by the Company as treasury sharesShares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 shares of Series B 200,000 Preferred Shares were reserved for future issuance upon exercise of the Company Rights; (iv) 40,468,000 options to purchase 344,058 Company Shares were reserved for future issuance pursuant to the Company Stock Plans, of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Sharesoutstanding; and (v) approximately 34,762,457 564,670 Company Shares were reserved remained available for future issuance upon conversion of or grant pursuant to the Company Convertible NotesOption Plan. Since August 23Between July 19, 20072005 and the date of this Agreement, (A) the Company has not issued any Company Shares other than as a result of in connection with the exercise of stock options outstanding on July 19, 2005, and (B) the Company Options reflected has not granted any stock options. Except as set forth in this Section 3.3(a), at the immediately preceding sentence as outstanding as close of August 23business on July 19, 20072005 no shares of capital stock of the Company were issued, reserved for issuance or outstanding. All of the issued and outstanding Company Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, are duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rights.
(b) nonassessable. The Company has delivered or made available to Parent copies of: of (A1) the Company Stock PlansOption Plan, which cover covers all of the stock options and unvested restricted stock awards granted by the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; , and (B2) the forms of all stock option agreements and restricted stock award agreements with respect to the Company Stock Plans. The Company does not maintain an employee evidencing such options and stock purchase planawards.
(cb) Except for options, rights, securities, convertible notes securities and plans referred to in Section 3.3(aPart 3.3(c) or Part 3.3(d) of the Company Disclosure Schedule and in the Company Rights Agreement, as of the date of this Agreement, there are is no outstanding (i) securities of the Company option, warrant, call, right, convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests in the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rightssecurity, “phantom” stock right, stock appreciation right, stock-based performance unit, commitment, contract, arrangement or similar securities undertaking of any kind to which the Company or rights any of its Subsidiaries is a party or by which any of them is bound (i) obligating the Company or any of its Subsidiaries to acquire issue, deliver, sell or transfer or repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold or transferred or repurchased, redeemed or otherwise acquired, any shares of the capital stock of, or other equity interests in, the Company or any of its Subsidiaries or any security convertible or exercisable for or exchangeable into any capital stock of, or other voting securities equity interest in, the Company or ownership any of its Subsidiaries, (ii) obligating the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking or (iii) that gives any Person the right to receive from the Company or any of its Subsidiaries any economic benefit or right determined by reference to the economic benefits and rights accruing to holders of capital stock of, or other equity interests in in, the CompanyCompany or any of its Subsidiaries.
(dc) Section 3.3(dPart 3.3(c) of the Company Disclosure Schedule sets forth (i) contains a schedule as of the date each Company Option was granted, (ii) of this Agreement setting forth the number of shares of underlying each outstanding stock option granted by the Company Shares subject to each such Company Optionand the exercise price, vesting date (iiior dates) the number of vested Company Shares subject to each such Company Option, (vi) the and expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercisedstock option. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there There are no Company Shares outstanding which are subject to vesting over time preemptive or upon the satisfaction similar rights held by any holder of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness class of the Company having the right to vote outstanding and (ii) no outstanding obligations securities of the Company or any of its Subsidiaries with respect to repurchasesuch securities. All outstanding unvested stock options granted by the Company will accelerate at or prior to the Effective Time, redeem and all outstanding stock options granted by the Company will terminate at or otherwise acquire any of their respective capital stock or other equity interests. No Subsidiary prior to the Effective Time.
(d) Part 3.3(d) of the Company owns Disclosure Schedule contains a schedule as of the date of this Agreement setting forth the holders of restricted Company Shares granted pursuant to the Company Option Plan and the vesting date (or dates) of such restricted Company Shares. Other than repurchase rights in connection with the restricted Company Shares listed in Part 3.3(d) of the Company Disclosure Schedule, as of the date of this Agreement, the Company does not have repurchase rights with respect to any other securities of the Company.
(e) Neither the Company nor any of its Subsidiaries has outstanding any bonds, debentures, notes or other obligations providing the holders of which the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the stockholders of the Company or any of its Subsidiaries on any matter submitted to such stockholders or to a separate class of holders of capital stock of the Company or any of its Subsidiaries.
(f) Except for this Agreement, the Transaction Support Agreements and any other agreements or arrangements contemplated by this Agreement, there are no voting trusts, voting agreements or similar agreements or other arrangements to which the Company is a party or by which the Company is bound with respect to the voting of capital stock of the Company.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity interests of each Subsidiary have been issued and granted in compliance in all material respects with (i) the Securities Act and other Legal Requirements and (ii) all requirements of Material Contracts.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 Company Shares, 1,000,000 of: (i) 6,500,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, Stock (par value $0.01 per share (“Preferred Shares”share), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23, 2007: (i) 373,641,481 Company Shares were issued (and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 shares of Series B Preferred were reserved for future issuance upon exercise of the Company Rights; (iv) 40,468,000 Company Shares were reserved for future issuance pursuant to the Company Stock Plans, of which 27,876,699 Company Shares were subject to 2,911,217 shares have been issued and are outstanding Company Options and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion on the date of the Company Convertible Notes. Since August 23, 2007, the Company has not issued any Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007this Agreement. All of the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise shares of Company Options Common Stock have been duly authorized and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, and are fully paid and nonassessable non-assessable. Part 2.3 of the Company Disclosure Schedule provides an accurate and not subject complete description of the terms of each repurchase option that is held by the Company and to which any preemptive rightsof such shares is subject. All of the outstanding shares of the Subsidiary have been duly authorized and validly issued, are fully paid and nonassessable, and are owned beneficially and of record by the Company.
(b) The Company has delivered or made available to Parent copies of: (A) reserved 600,000 shares of Company Common Stock for issuance under the Company Stock PlansOption Plan, of which cover 434,000 shares are reserved for issuance upon exercise of outstanding options. Part 2.3 of the Company Options and Restricted Disclosure Schedule accurately sets forth, with respect to each Company Shares Option that are is outstanding as of the date of this Agreement: (i) the name of the holder 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 with respect to which such Company Option is immediately exercisable; (iii) the date on which such Company Option was granted and the term of such Company Option; (iv) the vesting schedule for such Company Option; (v) the exercise price per share of Company Common Stock purchasable under such Company Option; and (Bvi) whether such Company Option has been designated an “incentive stock option” as defined in Section 422 of the forms of all award agreements with respect to the Company Stock PlansCode. The Company does not maintain has reserved 2,229,843 shares of Company Common Stock for issuance upon conversion of the Bridge Notes, Petrus Note, Convertible Almi Note and Petrus Interest immediately prior to the Merger and an employee stock purchase plan.
(c) additional 1,147,421 shares for issuance upon exercise of Company Investor Warrants issuable upon such conversion. The Company has reserved 171,219 shares of Company Common Stock for issuance upon exercise of Existing Warrants. Except for options, rights, securities, convertible notes and plans referred to as set forth in this Section 3.3(a) and in the Company Rights Agreement2.3(b), there are no outstanding 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 convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests in the Company, ; (ii) optionsoutstanding security, warrants instrument or other rights obligation that is or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities may become convertible into or exchangeable for any capital stock shares of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in of the Company.
; (diii) Section 3.3(dContract 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) except as set forth in Part 2.3(b) of the Company Disclosure Schedule sets forth (i) Schedule, to the date each Company Option was grantedknowledge of the Company, (ii) condition or circumstance that may give rise to or provide a basis for the number assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of Company Shares subject to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness of the Company having the right to vote outstanding and (ii) no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of their respective capital stock or other equity interests. No Subsidiary of the Company owns any capital stock securities of the Company.
(fc) All outstanding shares of Company Shares (including Restricted Company Shares) and Common Stock, all outstanding Company Options and all outstanding shares of capital stock or other equity interests of each Subsidiary Existing Warrants, Bridge Notes, the Petrus Note and the Convertible Almi Note have been issued or granted, and granted all Company Investor Warrants and shares issuable upon conversion of the Bridge Notes, the Petrus Note and the Convertible Almi Note will be issued or granted, in compliance in all material respects with (i) the Securities Act all applicable securities laws and other applicable Legal Requirements Requirements, and (ii) all requirements of Material set forth in applicable Contracts.
(d) The Company has never repurchased, redeemed or otherwise reacquired any shares of capital stock or other securities of the Company.
(e) As of the date hereof, the date the Information Statement is delivered to the Company’s stockholders and the Closing Date, each Person that held shares of Company Common Stock immediately prior to the Closing is a resident of the state or foreign country, as the case may be, set forth opposite such Person’s name on Part 2.3(e) of the Company Disclosure Schedule, as such Schedule may be updated from time to time prior to the Closing to reflect any relocations by Company stockholders that may occur.
Appears in 1 contract
Sources: Merger Agreement (Sbe Inc)
Capitalization, Etc. (aA) The authorized capital stock of the Company consists of 1,000,000,000 200,000,000 shares of Company Shares, Common Stock and 1,000,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share preferred stock (“Preferred Shares”"PREFERRED SHARES"), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 235:00 p.m. Pacific Time on May 15, 20072008: (i) 373,641,481 19,031,276 shares of Company Shares Common Stock were issued and outstanding (and not held by including shares of Company Common Stock included in the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares Units), of which no shares were held by unvested or were subject to any repurchase rights, risk of forfeiture or other similar condition in favor of the Company as treasury sharesCompany; (ii) no Preferred Shares were issued or outstanding; (iii) 1,000,000 33,033,013 shares of Series B Preferred Company Common Stock were reserved for future issuance issuable upon exercise of Company Warrants that were issued and outstanding (including shares of Company Common Stock issuable upon exercise of Company Warrants included in the Company RightsUnits); (iii) 3,108,618 shares of Company Common Stock were issuable upon exercise of options issued pursuant to the Company Equity Plan; and (iv) 40,468,000 17,489,813 shares of Company Shares Common Stock were issuable upon conversion of $128,200,000 aggregate principal amount of Convertible Notes. As of 5:00 p.m. Pacific Time on May 15, 2008, 2,064,090 Company Units were outstanding (which Company Units are included in the totals above). Between 5:00 p.m. Pacific Time on May 15, 2008 and the date of this Agreement, the Company has not issued any shares of Company Common Stock except upon exercise of outstanding Company Options or Company Warrants or conversion of outstanding Convertible Notes in accordance with their terms. As of the date of this Agreement, 4,366,544 shares of Company Common Stock were reserved for future issuance pursuant to the Company Stock Plans, of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion of the Company Convertible NotesEquity Plan. Since August 23, 2007, the Company has not issued any Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007. All of the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rights.
(b) The Company has delivered or made available to Parent or Parent's legal advisor copies of: of (A) the Company Stock PlansEquity Plan, which cover covers the stock options and restricted stock awards granted by the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; , and (B) the forms of all stock option agreements and restricted stock award agreements evidencing such options and stock awards.
(B) All the outstanding shares of capital stock of the Company and each Designated Subsidiary have been duly authorized and validly issued and are fully paid and nonassessable.
(C) Except as set forth in Part 2.3(c) of the Company Disclosure Schedule: (i) none of the outstanding shares of capital stock of the Company and the Designated Subsidiaries is entitled or subject to any preemptive right or right of participation; (ii) none of the outstanding shares of the capital stock of the Company and the Designated Subsidiaries is subject to any right of first refusal or similar right in favor of the Company; and (iii) there is no agreement in place 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 the capital stock of the Company or the Designated Subsidiaries.
(D) Part 2.3(d) of the Company Disclosure Schedule accurately sets forth with respect to each outstanding Company Option under the Company Stock PlansEquity Plan as of 5:00 p.m. Pacific Time on May 5, 2008: (i) the name of the holder; (ii) the exercise price per share; (iii) the total number of shares subject to such Company Option; (iv) the date on which such Company Option was granted; (v) the applicable vesting schedule; and (vi) whether such Company Option is intended to qualify as an "incentive stock option" within the meaning of Section 422 of the Code. The Between 5:00 p.m. Pacific Time on May 5, 2008 and the date of this Agreement: (i) the Company does has not maintain granted any Company Options; (ii) no outstanding Company Option has been amended, modified or changed; and (iii) Part 2.3(d) of the Company Disclosure Schedule shall have only changed to the extent that outstanding Company Options have been exercised in accordance with their terms. All Company Options (including those that have been exercised, terminated, expired, forfeited or otherwise cancelled) were issued at a strike price at least equal to fair market value such that the fair market value on the grant date equaled or exceeded the fair market value on the financial measurement date for each such Company Option or, with respect to Company Options that were not issued in such a manner, the Company recorded an employee stock purchase planappropriate compensation charge in its financial statements relating to such grants in the appropriate period and reported such in its financial statements and Company Returns during the required period.
(cE) Except for options, rights, securities, convertible notes securities and plans referred to in Section 3.3(a2.3(a) and except as set forth in Part 2.3(d) of the Company Rights Disclosure Schedule, as of the date of this Agreement, there are no outstanding is no: (i) outstanding subscription, option, call, warrant or stock appreciation right or other right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of the Company convertible into or exchangeable for shares any Subsidiary of capital stock of or other voting securities or equity interests in the Company, ; (ii) optionsoutstanding restricted stock award, warrants restricted stock unit award, performance stock award or other rights performance cash award; (iii) outstanding security, instrument or arrangements obligation that is or would reasonably be expected to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities become convertible into or exchangeable for any capital stock shares of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Section 3.3(d) of the Company Disclosure Schedule sets forth (i) the date each Company Option was granted, (ii) the number of shares of Company Shares subject to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness of the Company having the right to vote outstanding and (ii) no outstanding obligations of the Company or any Subsidiary of its Subsidiaries to repurchase, redeem the Company; (iv) contract under which the Company or otherwise acquire any of their respective capital stock or other equity interests. No Subsidiary of the Company owns is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (v) to the Knowledge of the Company, condition or circumstance that would reasonably be expected to provide a basis for the assertion of a valid claim by any Person to the effect that such Person is entitled to acquire or receive any capital stock of the Company or other securities of the Company.
(fF) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock, options, warrants, stock appreciation rights and other securities or other equity interests of each Subsidiary the Company and the Designated Subsidiaries have been issued and granted in compliance in all material respects with all applicable securities laws and other applicable Legal Requirements.
(G) All of the outstanding membership interests or other equity interests of each of the Company's Subsidiaries: (i) the Securities Act have been duly authorized and other Legal Requirements and validly issued; (ii) all requirements are nonassessable and free of Material Contractspreemptive rights, with no obligation to contribute additional capital; and (iii) except as set forth in Part 2.3(g) of the Company Disclosure Schedule, are owned beneficially and of record by the Company, free and clear of any Encumbrances (other than Permitted Encumbrances).
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 Company Shares, 1,000,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Preferred Shares”), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23, 2007of: (i) 373,641,481 850,000,000 shares of Company Shares Common Stock, of which 235,583,764 shares of Company Common Stock had been issued and were issued outstanding as of May 6, 2019 (the “Capitalization Date”) and not of which no shares are held by the Company as treasury sharesin its treasury.
(b) As of the Capitalization Date: (i) 4,094,942 shares of Company Common Stock are subject to issuance pursuant to outstanding Company RSUs (assuming maximum level of performance for Company RSUs with performance-based vesting conditions); and outstanding; (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 12,667,000 shares of Series B Preferred were reserved for future issuance upon exercise of the Company Rights; (iv) 40,468,000 Company Shares were Common Stock are reserved for future issuance pursuant to the Company Stock Plans, of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion of the Company Convertible NotesEquity Plan. Since August 23, 2007, the Company has not issued any Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007. All of the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rights.
(b) The Company has delivered or made available to Parent or its counsel complete and correct copies of: of the Company Equity Plan and the forms of restricted stock unit agreements evidencing the Company RSUs. Since the Capitalization Date until the date hereof, the Company has not (A) issued any shares of Company Common Stock (other than upon the settlement of Company Stock Plans, which cover the Company Options and Restricted Company Shares that are RSUs outstanding as of the date of this Agreement; and Capitalization Date) or (B) the forms of all award agreements with respect to the granted any Company Stock Plans. The Company does not maintain an employee stock purchase planRSUs or other similar awards.
(c) All of the issued and outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable and free of preemptive or anti-dilutive rights. Except for options, rights, securities, convertible notes agreements, instruments, obligations and plans referred to in Section 3.3(a) and in 2.3(b), as of the Company Rights Agreement, date of this Agreement there are no outstanding (i) securities of the Company convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests in of the Company and there is no: (i) outstanding subscription, option, call, warrant or right to acquire any shares of the capital stock or other equity securities of the Company or any Subsidiary of the Company, ; (ii) optionsstock appreciation right, warrants 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 rights equity equivalent or arrangements to acquire equity-based awards or other obligations rights; (iii) outstanding security, instrument or commitments to issue, any capital stock obligation of or other voting securities or ownership interests in, the Company or any securities Subsidiary of the Company that is or may become convertible into or exchangeable for any capital stock shares of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities equity security of the Company or ownership interests in any Subsidiary of the Company; or (iv) stockholder rights plan (or similar plan commonly referred to as a “poison pill”) under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or other equity securities.
(d) Section 3.3(d2.3(d) of the Company Disclosure Schedule sets forth (i) a true and complete list, as of the date each Company Option was grantedof this Agreement, (ii) the number of shares of Company Shares subject to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Subsidiary of the Company, including its jurisdiction of formation and direct or indirect ownership by the Company Option, and (vi) the price at which each such Company Option may be exercisedthereof. Except for the capital stock of, or other equity or voting interests in, its Subsidiaries as set forth described in Section 3.3(d2.3(d) of the Company Disclosure Schedule with respect to Restricted Schedule, neither the Company Sharesnor any of its Subsidiaries owns, there are no Company Shares outstanding which are subject to vesting over time directly or upon the satisfaction of indirectly, any condition precedent.
(e) There are (i) no bondsequity, debenturesmembership interest, notes partnership interest, joint venture interest or other indebtedness equity or voting interest in, or any interest convertible into, exercisable or exchangeable for any of the Company having the right to vote outstanding and (ii) no outstanding obligations of the Company foregoing, nor is it or any of its Subsidiaries under any obligation to repurchaseform or participate in, redeem provide funds to or otherwise acquire make any of their respective loan, capital stock contribution, guarantee, credit enhancement or other equity interestsinvestment in any Person. No Subsidiary All of the Company owns any capital stock of the Company.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity interests of each Subsidiary of the Company’s Subsidiaries have been issued duly authorized and validly issued, are fully paid and nonassessable and free of preemptive or anti-dilutive rights, and are wholly owned beneficially and of record by the Company or a Subsidiary of the Company, free and clear of any encumbrances.
(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.
(f) There are no voting trusts or other agreements to which the Company or any of its Subsidiaries is a party with respect to the voting of the Company Common Stock or any equity interest of the Company or any of its Subsidiaries. Neither the Company nor or any of its Subsidiaries has granted any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to its outstanding shares of capital stock or other equity interests that are in compliance in all material respects with effect.
(g) Section 2.3(g) of the Company Disclosure Schedule sets forth, as of the date of this Agreement, (i) the Securities Act total principal amount of outstanding Indebtedness for borrowed money of the Company and other Legal Requirements its Subsidiaries and (ii) all requirements the total principal amount of Material Contractsoutstanding capital leases of the Company and its Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Zayo Group LLC)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 Company Shares, 1,000,000 30,000,000 shares of Class A Common Stock, par value $0.01, Stock and 5,000,000 shares of Preferred Stockpreferred stock, $.01 par value $0.01 per share (“Preferred Shares”)value, (i) 50,000 of which are 30,000 shares have been designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock"PREFERRED STOCK"). As of August 23the date hereof, 2007: (ia) 373,641,481 Company Shares were 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, (and not c) 0 shares of Common Stock are held by the Company as treasury shares) in its treasury, and outstanding; (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (iid) no Preferred Shares were outstanding; (iii) 1,000,000 shares of Series B Preferred were reserved for future issuance upon exercise of the Company Rights; (iv) 40,468,000 Company Shares were reserved for future issuance pursuant to the Company Stock Plans, of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion of the Company Convertible Notes. Since August 23, 2007, the Company has not issued any Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007. All of the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rights.
(b) The Company has delivered or made available to Parent copies of: (A) the Company Stock Plans, which cover the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; and (B) the forms of all award agreements with respect to the Company Stock Plans. The Company does not maintain an employee stock purchase plan.
(c) Except for options, rights, securities, convertible notes and plans referred to in Section 3.3(a) and in the Company Rights Agreement, there are no outstanding (i) securities of the Company convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests in the Company are held by the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Section 3.3(d) 's Subsidiaries. SECTION 4.4 of the Company Disclosure Schedule Letter sets forth a complete and accurate list, as of the date hereof, of (i) the date each Company Option was grantednumber of outstanding Options and Warrants, (ii) the number of shares of Company Shares subject to each such Company OptionCommon Stock which can be acquired upon the exercise of all outstanding Options and Warrants, respectively, (iii) the number of vested Company Shares subject to each such Company Optionshares 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, (viiv) the expiration date number of shares of Common Stock which are reserved for issuance upon the exercise of outstanding Warrants, and (v) the exercise price of each such Company Optionoutstanding Option and Warrant, and (vi) the price at number of shares of Common Stock which each such Company Option may be exercisedare reserved for issuance pursuant to the Purchase Plan. Except as set forth in Section 3.3(d) of for the Common Stock, the Rights, the Options, the Warrants, and the Purchase Rights, the Company Disclosure Schedule with respect to Restricted Company Shares, there are has no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness of obligations entitling the Company holders thereof to vote (or which are convertible into or exercisable for securities having the right to vote outstanding 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 SECTION 4.4 or in SECTION 4.4 of the Company Disclosure Letter, there are no other shares of 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 (including rights of first refusal), agreements or commitments which obligate the Company or any of its Subsidiaries to issue, transfer or sell any shares of capital stock of, or equity interests in, or any material assets of, the Company or any of its Subsidiaries. Except as set forth in SECTION 4.4 of the Company Disclosure Letter, the Company is not obligated to issue any Options, Warrants or Purchase Rights after the date hereof. There are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of their respective capital stock or other equity interests. No Subsidiary of the Company owns any capital stock of the Company.
(f) All Company and there are no unissued performance awards outstanding Company Shares (including Restricted Company Shares) under the Stock Option Plan or any other outstanding stock related awards. At the Effective Time, each outstanding Option and all outstanding Company Options and all outstanding Warrant shall be canceled without the consent of any other party or 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 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 equity interests agreements or understandings to which the Company or any of each Subsidiary have been issued and granted in compliance in all material respects its Subsidiaries is a party with (i) respect to the Securities Act and other Legal Requirements and (ii) all requirements voting of Material Contractscapital stock of the Company or any of its Subsidiaries.
Appears in 1 contract
Capitalization, Etc. Subsidiaries.
(a) The authorized capital stock of the Company consists of 1,000,000,000 Company Shares, 1,000,000 15,000,000 shares of Class A Company Common Stock, and 6,900,000 shares of preferred stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 .01 per share (“Preferred SharesStock”). As of the close of business on November 30, 2003, Table of Contents (i) 50,000 8,399,481 shares of which are designated as Series A Convertible Preferred StockCompany Common Stock were issued and outstanding, (ii) 1,000,000 no shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) were issued and outstanding, (iii) 50,000 190,242 shares of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23, 2007: (i) 373,641,481 Company Shares were issued (and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares Common Stock were held by the Company as treasury shares; in its treasury, (iiiv) no Preferred Shares were outstanding; (iii) 1,000,000 935,856 shares of Series B Preferred Company Common Stock were reserved for future issuance upon the exercise of outstanding stock options under the Company Incentive Plan, (v) 1,499 shares of Company Common Stock were reserved for issuance upon the exercise of outstanding stock options under the Company’s 1995 Option Plan, (vi) no shares of Company Common Stock were reserved for issuance upon the exercise of outstanding stock options under the Company’s 1994 Incentive Stock Option Plan, (vii) 1,625 shares of Company Common Stock were reserved for issuance upon the exercise of outstanding stock options under the Company’s 1988 Option Plan, (viii) 187,856 shares of Company Common Stock were reserved for issuance under the Company ESPP, and, (ix) no shares of capital stock of the Company Rights; (iv) 40,468,000 Company Shares were reserved for future issuance pursuant to held by the Company Stock Plans, of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion of the Company Convertible Notes. Since August 23, 2007, the Company has not issued any Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007. All of the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rightsCompany’s subsidiaries.
(b) The Company has delivered or made available to Parent copies of: (A) the Company Stock Plans, which cover the Company Options Disclosure Schedule sets forth a complete and Restricted Company Shares that are outstanding accurate list as of the date November 30, 2003, of this Agreement; and (B) the forms of all award agreements with respect to the Company Stock Plans. The Company does not maintain an employee stock purchase plan.
(c) Except for options, rights, securities, convertible notes and plans referred to in Section 3.3(a) and in the Company Rights Agreement, there are no outstanding (i) securities the number of the outstanding Company convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests in the CompanyOptions, (ii) optionsthe holders thereof, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock (iii) whether such holders are employees of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or any of its subsidiaries, (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Section 3.3(d) of the Company Disclosure Schedule sets forth (iiv) the grant date each Company Option was grantedor issue date and vesting status of such options, (iiv) the number of shares of Company Shares subject to each such Company Option, (iii) Common Stock that can be acquired upon the number of vested Company Shares subject to each such Company Option, (vi) the expiration date exercise of each such outstanding Company Option, and (vi) the exercise price at which of each such outstanding Company Option may be exercised. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedentOption.
(ec) There are (i) The Company has no outstanding bonds, debentures, notes or other indebtedness of obligations entitling the Company holders thereof to vote (or which are convertible into or exercisable for securities having the right to vote outstanding and vote) with the holders of the shares of Company Common Stock on any matter (collectively, “Voting Debt”).
(d) Since November 30, 2003, the Company (i) has not issued any shares of Company Common Stock or Preferred Stock other than upon the exercise of Company options or pursuant to the Company ESPP, (ii) has granted no options to purchase shares of Company Common Stock, under or pursuant to the Company Stock Plans or otherwise, to the executive officers of the Company, or to any other party under the Company Stock Plans or otherwise, and (iii) has not split, combined or reclassified any of its shares of capital stock.
(e) All of such Company Options have been granted to directors, officers, consultants, advisors and employees of the Company or any subsidiary in the ordinary course of business consistent with past practice. The Company has delivered to Parent complete and correct copies of all plans pursuant to which Company Options were granted and all forms of Company Options.
(f) All issued and outstanding shares of Company Common Stock are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights. There are no other shares of capital stock or voting securities of the Company, and no existing options, warrants, calls, subscriptions, convertible securities, stock appreciation rights or limited stock appreciation rights, phantom stock rights, stock units, performance rights or other equity-based awards or other rights (including rights of first refusal), agreements or commitments which obligate the Company or any of its subsidiaries to issue, transfer or sell any shares of capital stock of, or equity interests in, or any material assets of, the Company or any of its subsidiaries or of any Voting Debt, or obligating the Company or any subsidiary to grant, extend or enter into Table of Contents any such option, warrant, call, subscription, convertible securities, stock appreciation rights, limited stock appreciation rights or other rights, arrangement or commitment. There are no outstanding obligations of the Company or any of its Subsidiaries subsidiaries to repurchase, redeem or otherwise acquire any shares of their respective capital stock or other equity interests. No Subsidiary of the Company owns any capital stock of the Company. There are no voting trusts or other agreements or understandings to which the Company or any of its subsidiaries is a party with respect to the voting of capital stock of the Company or any of its subsidiaries.
(fg) All outstanding The Company Shares (including Restricted Company Shares) and owns, directly or indirectly, all outstanding Company Options and all of the outstanding shares of capital stock of each of its subsidiaries. All of the outstanding shares of capital stock of each subsidiary of the Company are duly authorized, validly issued, fully paid and nonassessable, and are owned, directly or indirectly, by the Company free and clear of all pledges, claims, liens, charges, encumbrances and security interests of any kind or nature whatsoever (collectively, “Liens”). The Company Disclosure Schedule sets forth all of the subsidiaries of the Company. Other than ownership of the capital stock or other equity ownership interests of each Subsidiary have been issued and granted its subsidiaries, the Company does not own, directly or indirectly, any capital stock or other ownership interest in compliance in all material respects with (i) any corporation, partnership, joint venture or other entity. Neither the Securities Act and other Legal Requirements and (ii) all requirements Company nor any of Material Contractsits subsidiaries is subject to any obligation or requirement to make any loan, capital contribution, investment or similar expenditure to or to assume any liability or obligation of, any Person. Except as provided by applicable Law, there are no restrictions of any kind which prevent the payment of dividends by any subsidiary.
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Sources: Merger Agreement (Invitrogen Corp)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 Company Shares, 1,000,000 (i) 19,000,000 shares of Class A Company Common Stock, par value $0.010.0001, and 5,000,000 (ii) 9,500,000 shares of Company Preferred Stock, par value $0.01 per share (“Preferred Shares”)0.0001, (i) 50,000 of which are 2,500,000 shares have been designated as “Series A Convertible Preferred Stock, ” (iithe “Series A Preferred Stock”) 1,000,000 and 7,000,000 shares of which are designated have been designation as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23, 2007: ” (i) 373,641,481 Company Shares were issued (and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 shares of “Series B Preferred were reserved for future issuance upon exercise Stock”). The Company does not hold any shares of the Company Rights; (iv) 40,468,000 Company Shares were reserved for future issuance pursuant to the Company Stock Plans, of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion of the Company Convertible Notes. Since August 23, 2007, the Company has not issued any Company Shares other than as a result of the exercise of Company Options reflected its capital stock in the immediately preceding sentence as outstanding as of August 23, 2007its treasury. All of the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise shares of Company Options Capital Stock have been duly authorized and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, and are fully paid and nonassessable and not subject to any preemptive rights.
(b) The Company has delivered or made available to Parent copies of: (A) the Company Stock Plans, which cover the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; and (B) the forms of all award agreements with respect to the Company Stock Plansnonassessable. The Company does is not maintain an employee stock purchase plan.
(c) Except for optionsunder any obligation, rightsnor is bound by any Contract pursuant to which it may become obligated, securities, convertible notes and plans referred to in Section 3.3(a) and in the Company Rights Agreement, there are no outstanding (i) securities of the Company convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests in the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Section 3.3(d) of the Company Disclosure Schedule sets forth (i) the date each Company Option was granted, (ii) the number of shares of Company Shares subject to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness of the Company having the right to vote outstanding and (ii) no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any outstanding shares of their respective capital stock or other equity interests. No Subsidiary Company Capital Stock.
(b) As of the date of this Agreement and after giving effect to (i) the conversion of all Company owns any capital Preferred Stock into shares of Company Common Stock in accordance with the Company’s certificate of incorporation then in effect, and (ii) a reverse stock split of all issued and outstanding shares of Company Common Stock at a ratio of three-to-one, 4,916,469 shares of the Company.
(f) All outstanding Company Shares (including Restricted Company Shares) and all ’s Common Stock are outstanding, with an additional 358,986 shares subject to issuance pursuant to outstanding Company Options and an additional 25,000 shares subject to issuance pursuant to outstanding warrants (the “Company Warrants”). All outstanding Company Options were granted pursuant to the terms of the Company Option Plan. The Company Option Plan is binding upon and enforceable by the Company against all outstanding shares holders of capital stock or other equity interests of each Subsidiary have been issued and granted in compliance in all material respects with Company Options, subject to (i) laws of general application relating to bankruptcy, insolvency, reorganization, moratorium and the Securities Act and other Legal Requirements enforcement of creditors’ rights generally, and (ii) all requirements rules of Material Contractslaw governing specific performance, injunctive relief and other equitable remedies.
Appears in 1 contract
Capitalization, Etc. (aA) The authorized capital stock of the Company Seller consists of 1,000,000,000 Company Shares, 1,000,000 of:
(I) eleven million (11,000,000) shares of Class A Seller Common Stock, (A) five million three hundred forty-eight thousand seven hundred twenty-one (5,348,721) shares of which are issued and outstanding (including 526,500 shares of Seller Common Stock issued upon early exercise of outstanding Options under the Option Plan), with all such Seller Common Stock issued pursuant to a form of Repurchase Agreement (including any amendments thereto) that has been provided to Purchaser; (B) five million one hundred seventy-seven thousand seven hundred seventy-nine (5,177,779) shares of which are reserved for issuance under the Option Plan, of which options to purchase 5,003,335 shares have been granted (including 526,500 shares of Restricted Seller Stock (included above) that have been issued upon early exercise of outstanding Options under the Option Plan) and 174,444 shares remain available for future grant; and (C) one million (1,000,000) shares of which are reserved for issuance in connection with the conversion of the Alteon Stock; and
(II) one million (1,000,000) shares of convertible preferred stock, representing the Alteon Stock, having a par value of $0.010.001 per share, of which all such shares are issued and outstanding; and
(III) no shares of Seller's capital stock are held in the treasury of Seller.
(B) To the best of Seller's Knowledge, the Stockholders have, and 5,000,000 Purchaser will acquire at the Closing, good and valid title to all of the shares of Preferred Stock, par value $0.01 per share capital stock or other securities of the Seller held by the Stockholders free and clear of any Encumbrances.
(“Preferred Shares”), C) All of the shares of capital stock or other securities of the Seller held by the Stockholders (i) 50,000 of which are designated as Series A Convertible Preferred Stockhave been duly authorized and validly issued, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) fully paid and non-assessable and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stockhave been issued in full compliance with all applicable securities laws and other applicable Legal Requirements. As of August 23, 2007: (i) 373,641,481 Company Shares were issued (and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 All shares of Series B Preferred were reserved for future issuance Seller Common Stock that may be issued upon exercise of the Company Rights; (iv) 40,468,000 Company Shares were reserved for future issuance pursuant to the Company Stock Plans, of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Shares; warrants have been duly authorized and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion of the Company Convertible Notes. Since August 23, 2007, the Company has not issued any Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007. All of the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorizedupon issuance in accordance with the terms of the Options and warrants, validly issued, fully paid and nonassessable non-assessable and not subject to any except as set forth in Part 2.3(c) of the Disclosure Schedule, free of all preemptive rights.
(bD) The Company has delivered or made available to Parent copies of: (APart 2.3(d) of the Company Stock PlansDisclosure Schedule sets forth, which cover the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; hereof, a complete and (B) the forms of all award agreements with respect to the Company Stock Plans. The Company does not maintain an employee stock purchase plan.
(c) Except for options, rights, securities, convertible notes and plans referred to in Section 3.3(a) and in the Company Rights Agreement, there are no outstanding accurate list of: (i) securities of the Company convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests in the Companyall Stockholders, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Section 3.3(d) of the Company Disclosure Schedule sets forth (i) the date each Company Option was granted, (ii) indicating the number of shares of Company Shares Seller Common Stock or preferred stock held by each Stockholder and the vesting schedule for any shares subject to repurchase by Seller; (ii) all holders of options, including the number of shares of Seller Common Stock subject to each such Company Optionoption, the exercise price, the vesting schedule and any other material terms thereof; (iii) the number all holders of vested Company Shares subject warrants to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness of the Company having the right to vote outstanding and (ii) no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of their respective capital stock or other equity interests. No Subsidiary of the Company owns any purchase capital stock of the Company.
, (fiv) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity interests equity-related plans of each Subsidiary have been issued and granted in compliance in all material respects with (i) the Securities Act and other Legal Requirements and (ii) all requirements of Material Contracts.Seller,
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 Company Shares, 1,000,000 150,000,000 shares of Class A Company Common Stock, par value $0.010.01 per share, of which 46,989,720 shares were issued and outstanding as of April 16, 2007; and 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Preferred Shares”)share, (i) 50,000 of which are (1) 2,000,000 shares have been designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B X Junior Participating Preferred Stock (“Series B Preferred”) and were reserved for issuance upon the exercise of rights granted under the Company Rights Agreement and (iii2) 50,000 of which no shares have been issued or are designated as Series C Redeemable Convertible Preferred Stockoutstanding. As of August 23April 16, 2007: (i) 373,641,481 no shares of Company Shares were issued (and not Common Stock are held by in the Company as treasury shares) and outstandingof the Company; (ii) 5,347,296 6,708,885 shares of Company Shares were held Common Stock are subject to issuance pursuant to stock options granted under the 1989 Plan and the 1999 Plan (stock options granted by the Company pursuant to the 1989 Plan, the 1999 Plan or otherwise are referred to collectively herein as treasury shares; (ii) no Preferred Shares were outstanding“Company Options”); (iii) 1,000,000 1,001,496 shares of Series B Preferred were reserved for future Company Common Stock are subject to issuance upon exercise of pursuant to the Company RightsSARs granted under the 1999 Plan; (iv) 40,468,000 110,934 shares of Company Shares were Common Stock are subject to issuance pursuant to Company Stock Units held pursuant to the terms of the Deferred Compensation Plan; and (v) 1,221,972 shares of Company Common Stock are reserved for future issuance pursuant to the Company’s ESPP. Of the shares of Company Stock PlansCommon Stock, of which 27,876,699 stock options, and Company Shares were SARs outstanding, 4,090,174 are subject to outstanding Company Options and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion vesting under the terms of the Company Convertible Notes. Since August 23, 2007, 1999 Plan and the Company has not issued any Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007Director Grant Plan. All of the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise shares of Company Options Common Stock have been duly authorized and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, and are fully paid and nonassessable and not nonassessable. There are no shares of Company Common Stock held by any of the Company’s Subsidiaries. None of the outstanding shares of Company Common Stock are entitled or subject to any preemptive rightsright, right of participation, right of maintenance or any similar right or subject to any right of first refusal in favor of the Company and, other than the ValueAct Voting Agreement, there is no Company Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Company Common Stock. No Acquired Corporation 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 Stock. The Company is not a party to any voting agreements with respect to any shares of capital stock of, or other equity or voting interests in, the Company or any of its Subsidiaries other than the ValueAct Voting Agreement and, to the Knowledge of the Company, other than the Voting Agreements there are no irrevocable proxies and no voting agreements with respect to any shares of capital stock of, or voting interests in, the Company or any of its Subsidiaries. The “Separation Time” (as defined in the Company Rights Agreement) has not occurred.
(b) The Company has delivered or made available to Parent copies of: (A) the Company Stock Plans, which cover the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; and (B) the forms of all award agreements with respect to the Company Stock Plans. The Company does not maintain an employee stock purchase plan.
(c) Except for options, rights, securities, convertible notes and plans referred to in Section 3.3(a) and in the Company Rights Agreement, there are no outstanding (i) securities of the Company convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests in the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Section 3.3(dPart 2.4(b) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of April 16, 2007: (i) the date each Company Option was granted, name of the optionee; (ii) the number of shares of Company Shares Common Stock subject to each such Company Option, ; (iii) the number exercise price of vested Company Shares subject to each such Company Option, ; (viiv) the expiration date of each on which such Company Option, Option was granted; (v) the extent to which such Company Option is vested and exercisable as of the Agreement Date; and (vi) the price at date on which each such Company Option may be exercisedexpires. The Company has made available to Parent accurate and complete copies of all stock option plans pursuant to which all currently outstanding Company Stock Awards were granted, and the forms of all stock option agreements evidencing such options.
(c) Part 2.4(c) of the Disclosure Schedule sets forth the following information with respect to each Company SAR outstanding as of April 16, 2007: (i) the name of the holder of such Company SAR; (ii) the number of shares of Company Common Stock subject to such Company SAR; (iii) the exercise price of such Company SAR; (iv) the date on which such Company SAR was granted; (v) the extent to which such Company SAR is vested and exercisable as of the Agreement Date; and (vi) the date on which such Company SAR expires. The Company has made available to Parent accurate and complete copies of all plans pursuant to which all currently outstanding Company SARs were granted, and the forms of all agreements evidencing such Company SARs.
(d) Part 2.4(d) of the Disclosure Schedule sets forth the following information with respect to each Company Stock Unit outstanding as of April 16, 2007: (i) the name of the beneficial holder of such Company Stock Unit; (ii) the number of shares of Company Common Stock subject to such Company Stock Unit; (iii) the extent to which such Company Stock Unit is vested as of the Agreement Date; and (iv) the date, if any, on which such Company Stock Unit expires.
(e) Except as set forth in Section 3.3(dSections 2.4(a), 2.4(b), 2.4(c) or 2.4(d) above, and except as set forth in Part 2.4(e) of the Company Disclosure Schedule with respect and for rights under the ESPP to Restricted purchase shares of Company SharesCommon Stock, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are is no: (i) no bondsoutstanding subscription, debenturesoption, notes call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other indebtedness securities of any of the Company having Acquired 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 Acquired Corporations or otherwise has the right to vote outstanding and on any matters on which the stockholders of any Acquired Corporation have the right to vote; (iiiii) no outstanding obligations rights agreement, stockholder rights plan (or similar plan commonly referred to as a “poison pill”) or Contract under which any of the Acquired Corporations are or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; (iv) stock appreciation rights, phantom stock awards or other similar rights that are linked to the value of the Company Common Stock or the value of the Company or any part thereof, or (v) to the Company’s Knowledge, condition or circumstance that may give rise to or provide a basis for the assertion of its Subsidiaries a claim by any Person to repurchase, redeem the effect that such Person is entitled to acquire or otherwise acquire receive any shares of their respective capital stock or other equity interests. No Subsidiary securities of any of the Acquired Corporations from any Acquired Corporation (items “(i)” through “(v)” above, collectively, “Company owns any capital stock of the CompanyStock Rights”).
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or Company Common Stock, Company Options, Company SARs, Company Stock Units and other equity interests securities of each Subsidiary the Company have been issued and granted in compliance in all material respects with with: (i) the Securities Act all applicable securities laws and other applicable Legal Requirements Requirements; and (ii) all requirements of Material set forth in applicable Contracts.
(g) All of the shares of capital stock of each of the 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 (except as set forth in Part 2.4(g) of the Disclosure Schedule), other than restrictions on transfer imposed by applicable securities laws.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 Company 30,000,000 shares of common stock, no par value, as follows: 10,000,000 Class A Voting Common Shares, 1,000,000 shares of Class A Common Stock, no par value $0.01per share, and 5,000,000 shares of Preferred Stock20,000,000 Class B Common Shares, no par value $0.01 per share share, of which 7,200,000 Voting Shares and 2,109,250 Non-Voting Shares (the “Preferred Existing Shares”), ) have been issued and are outstanding as of the date of this Agreement. All of such Existing Shares (i) 50,000 of which are designated as Series A Convertible Preferred Stockhave been duly authorized and validly issued, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) fully paid and non-assessable, and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23, 2007: (i) 373,641,481 Company Shares were have been issued (in full compliance with all applicable securities laws and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 shares of Series B Preferred were reserved for future issuance upon exercise of the Company Rights; (iv) 40,468,000 Company Shares were reserved for future issuance pursuant to the Company Stock Plans, of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion of the Company Convertible Notes. Since August 23, 2007, the Company has not issued any Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007. All of the outstanding Company Shares are, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rightsapplicable Legal Requirements.
(b) The Company has delivered or made available to Parent copies of: (A) the Company Stock Plans, which cover the Company issued Options and Restricted Company Shares that are outstanding as of the date of this Agreement; Agreement to purchase 1,754,000 Non-Voting Shares (the “Option Shares” and (Btogether with the Existing Shares the “Shares”). Schedule 3.5(b) the forms of all award agreements attached hereto accurately sets forth, with respect to each Option outstanding as of the Company Stock Plansdate hereof (whether vested or unvested): (i) the name of the holder of such Option; (ii) the total number of shares of capital stock with respect to which such Option is exercisable; (iii) the exercise price per share of capital stock purchasable under such Option, and (iv) the expiration date of such Option. The Company does All of such Options will immediately vest and become fully exercisable in accordance with their terms upon the execution of this Agreement and, if not maintain an employee stock purchase planexercised on or prior to 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 (iv) be held by the LogicTools Stockholders, free and clear of any Encumbrances.
(c) Except for options, rights, securities, convertible notes and plans referred to in Section 3.3(a) and in the Company Rights Agreement, there are no outstanding (i) securities As of the Company convertible into or exchangeable date hereof, except for shares of capital stock of or other voting securities or equity interests in the CompanyExisting Shares and the Options, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Section 3.3(d) and as of the Company Disclosure Schedule sets forth (i) Closing, except for the date each Company Option was granted, (ii) the number of shares of Company Shares subject to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there are and will be no issued and outstanding, and the Company Shares outstanding which are subject has not issued or agreed to vesting over time issue or upon the satisfaction of any condition precedent.
(e) There are will issue or agree to issue any: (i) no bonds, debentures, notes or other indebtedness share of the Company having the right to vote outstanding and (ii) no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of their respective capital stock or other equity interests. No Subsidiary or ownership interest; (ii) option, warrant or interest convertible into or exchangeable or exercisable for the purchase of the Company owns any capital stock of the Company.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity or ownership interests; (iii) stock appreciation right, phantom stock, interest in the ownership or earnings of the Company or other equity equivalent or equity-based award or right; or (iv) bond, debenture or other indebtedness having the right to vote or convertible or exchangeable for securities having the right to vote (collectively “Capital Stock”).
(d) Except as set forth in Schedule 3.5(d) attached hereto and except for the Shareholders Agreement, which 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) hereto, and the rights granted to the ILOG Group under this Agreement, there are no outstanding obligations of the Company to issue, sell or transfer or repurchase, redeem or otherwise acquire, or that relate to the holding, voting or disposition of or that restrict the transfer of, the issued or unissued capital stock or other equity or ownership interests of each Subsidiary the Company. No shares of capital stock or other 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) As of the date hereof, the LogicTools Stockholders own, beneficially and granted in compliance in of 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 material respects with (iOptions 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 Securities Act issued and other Legal Requirements outstanding Shares and (ii) all requirements Capital Stock of Material Contractsthe Company, free and clear of any Encumbrances.
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Sources: Merger Agreement (Ilog Sa)
Capitalization, Etc. (a) The As of the date of this Agreement, the authorized capital stock of the Company consists of 1,000,000,000 Company Shares, 1,000,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Preferred Shares”), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23, 2007of: (i) 373,641,481 29,250,000 shares of Company Shares were Common Stock, of which 8,659,000 shares are issued (and not held by the Company as treasury shares) and outstanding; and (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 13,375,000 shares of Company Series B A Preferred were reserved for future issuance upon exercise of the Company Rights; (iv) 40,468,000 Company Shares were reserved for future issuance pursuant to the Company Stock PlansStock, 12,238,394 of which 27,876,699 Company Shares were subject to outstanding Company Options are issued and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion of the Company Convertible Notes. Since August 23, 2007, the Company has not issued any Company Shares other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007outstanding. All of the issued and outstanding Company Shares are, and all Company Shares which may be issued, upon exercise shares of Company Options Common Stock and upon conversion of Company Convertible Notes, will be, when issued, Series A Preferred Stock have been duly authorized, authorized and validly issued, and are fully paid and nonassessable and not subject to any preemptive rightsnon-assessable.
(b) The As of the date of this Agreement, the Company has delivered or made available to Parent copies ofreserved: (Aa) 6,151,964 shares of Company Common Stock for issuance under the Company Equity Plan, of which (i) 509,000 shares of Company Common Stock Planshave been issued pursuant to restricted stock purchase agreements and/or the exercise of outstanding options, which cover (ii) options to purchase 4,408,185 shares have been granted and are currently outstanding, and (iii) 1,234,779 shares remain available for future issuances of restricted stock agreements or grants of options to directors, officers, employees and consultants of the Company Options (collectively, the “Company Options”), and Restricted (b) 2,998,095 shares of Series A Preferred Stock issuable upon exercise of outstanding warrants (collectively, the “Company Shares Warrants”).
(c) Part 2.3(c) of the Company Disclosure Schedule accurately sets forth, with respect to each Company Option and Company Note that are is outstanding as of the date of this Agreement: (i) the name of the holder of such Company Option or Company Note and (ii) the total number of shares of Company Common Stock or Company Series A Preferred Stock that are subject to such Company Option or Company Note and, if a Company Option, the number of shares of Company Common Stock with respect to which such Company Option is currently exercisable. Except as set forth above in Section 2.3(b), or in Part 2.3(c) of the Company Disclosure Schedule, there is no: (A) 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; and (B) the forms of all award agreements with respect to the Company Stock Plans. The Company does not maintain an employee stock purchase plan.
(c) Except for optionsoutstanding security, rights, securities, convertible notes and plans referred to in Section 3.3(a) and in the Company Rights Agreement, there are no outstanding (i) securities of the Company convertible into instrument or exchangeable for shares of capital stock of obligation that is or other voting securities or equity interests in the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities may become convertible into or exchangeable for any capital stock shares of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in of the Company.
; (dC) Section 3.3(d) of Contract under which the Company Disclosure Schedule sets forth (i) the date each Company Option was granted, (ii) the number of is or may become obligated to sell or otherwise issue any shares of Company Shares subject to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness of the Company having the right to vote outstanding and (ii) no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of their respective capital stock or any other equity interests. No Subsidiary of the Company owns any capital stock of securities; or (D) to the Company.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity interests of each Subsidiary have been issued and granted in compliance in all material respects with (i) the Securities Act and other Legal Requirements and (ii) all requirements of Material Contracts.’s
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 Company Shares, 1,000,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Preferred Shares”), (i) 50,000 of which are designated as Series A Convertible Preferred Stock, (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (“Series B Preferred”) and (iii) 50,000 of which are designated as Series C Redeemable Convertible Preferred Stock. As of August 23, 2007of: (i) 373,641,481 Company 83,750,000 Shares, of which 52,472,785 Shares had been issued and were issued outstanding as of the close of business on April 30, 2020 (the “Capitalization Date”), of which 4,223,189 Shares constituted Restricted Shares and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 5,000,000 shares of Company Shares were held by Preferred Stock, of which no shares are outstanding. From the Capitalization Date to the execution of this Agreement, the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 shares of Series B Preferred were reserved for future issuance upon exercise of the Company Rights; (iv) 40,468,000 Company Shares were reserved for future issuance has not issued any Shares, including Restricted Shares, except pursuant to the exercise of Options (as defined in the Company Stock Plans, ESPP) under the Company ESPP or the exercise of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion outstanding as of the Company Convertible Notes. Since August 23Capitalization Date in accordance with their terms and, 2007since the Capitalization Date, the Company has not issued any Company Shares Options, Company RSUs or other than as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007equity or equity-based awards. All of the outstanding Company Shares are, have been duly authorized and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, and are fully paid and nonassessable and not nonassessable.
(i) None of the outstanding equity interests of the Company are entitled or subject to any preemptive rights.
right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (bii) The Company has delivered or made available to Parent copies of: (A) the Company Stock Plans, which cover the Company Options and Restricted Company Shares that are outstanding as of the date of this Agreement; and (B) the forms of all award agreements with respect to the Company Stock Plans. The Company does not maintain an employee stock purchase plan.
(c) Except for options, rights, securities, convertible notes and plans referred to in Section 3.3(a) and in the Company Rights Agreement, there are no outstanding (i) securities of the Company convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests in the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Section 3.3(d) of the Company Disclosure Schedule sets forth (i) the date each Company Option was granted, (ii) the number of shares of Company Shares subject to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness of the Company or any of its Subsidiaries having the a right to vote on any matters on which the holders of the outstanding equity interests of the Company have a right to vote, as applicable; and (iii) there is no 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 equity interests of the Company. The Shares constitute the only outstanding class of securities of the Company registered under the Securities Act or the Exchange Act.
(c) As of the close of business 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, (ii) no 1,383,796 Shares were subject to issuance pursuant to In-The-Money Company Options granted and outstanding obligations under the Company Equity Plans and such In-The Money Company Options had a weighted average exercise price of $5.75, (iii) 42,702 Shares were subject to issuance pursuant to Out-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, (iv) 944,076 Shares are subject to issuance pursuant to Company RSUs granted and outstanding under the Company Equity Plans, (v) 472,648 Shares were reserved for future issuance under Company Equity Plans and (vi) 349,650 Shares were reserved for future issuance under the Company ESPP.
(d) Except as set forth in this 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), there are no: (i) outstanding shares of capital stock or other securities of the Company; (ii) outstanding subscriptions, options, calls, warrants or 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 to repurchaseSubsidiaries, redeem in each case other than derivative securities not issued by the Company; (iii) outstanding securities, instruments, bonds, debentures, notes or otherwise acquire obligations that are or may become convertible into or exchangeable for any shares of their respective the capital stock or other equity interests. No Subsidiary securities of the Company owns or any of its Subsidiaries; (iv) stockholder rights plans (or similar plans commonly referred to as a “poison pill”) or 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 (v) voting trusts or other Contract to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the CompanyCompany or any of its Subsidiaries.
(e) Section 3.3(e) of the Company Disclosure Schedule sets forth a listing of all Persons who hold outstanding Company Options, Company RSUs, or Restricted Shares as of the close of business on the Capitalization Date, indicating, with respect to each Company 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 respect each Company Option, and expiration date. Other than Shares reserved for future issuance under the Company ESPP, the outstanding Options (as defined in the Company ESPP) 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, 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 Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity voting securities of, or ownership interests of in, each Subsidiary have been issued of the Company is owned by the Company, directly or indirectly, beneficially and granted in compliance in of record, free and clear of all material respects with (i) Encumbrances and transfer restrictions, except for such Encumbrances and transfer restrictions of general applicability as may be provided under the Securities Act and or other Legal Requirements and (ii) all requirements of Material Contractsapplicable securities laws.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 Company Shares, 1,000,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Preferred Shares”), of: (i) 50,000 200,000,000 Shares, of which are designated 114,785,001 Shares had been issued and were outstanding as Series A Convertible Preferred Stockof the close of business on February 9, 2024 (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (the “Series B PreferredCapitalization Date”) and (iiiii) 50,000 10,000,000 shares of which are designated as Series C Redeemable Convertible Company Preferred Stock. As of August 23, 2007: (i) 373,641,481 Company Shares were issued (and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 shares of Series B Preferred were reserved for future issuance upon exercise of the Company Rights; (iv) 40,468,000 Company Shares were reserved for future issuance pursuant to the Company Stock Plans, of which 27,876,699 Company Shares no shares were subject to outstanding as of the Capitalization Date, and, as of the Capitalization Date, there were an aggregate of 5,226,628 outstanding Company Options Warrants to purchase an aggregate of up to 5,226,628 Shares issued to public investors in the Company’s public equity offerings in November 2021, January 2023 and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion September 2023. From the Capitalization Date to the execution of the Company Convertible Notes. Since August 23, 2007this Agreement, the Company has not issued any Company Shares other than as a result of except pursuant to the exercise of Company Options reflected Options, the vesting or settlement of Company RSUs or the exercise of Company Warrants, in the immediately preceding sentence as each case outstanding as of August 23the Capitalization Date in accordance with their terms and, 2007from the Capitalization Date to the execution of this Agreement, the Company has not issued any warrants to acquire Shares or 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 Company Shares are, equity interests of the Acquired Companies have been duly authorized and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, and are fully paid and nonassessable and not subject to any preemptive rightsnonassessable.
(b) The Company has delivered or made available to Parent copies of: (A) owns all of the authorized and outstanding capital stock and other equity interests of each of the Company’s Subsidiaries. The outstanding capital stock and other equity interests of the Company’s Subsidiaries owned by the Company Stock Plans, which cover the Company Options are owned free and Restricted Company Shares that are outstanding as of the date of this Agreement; and (B) the forms clear of all award agreements with respect to Encumbrances and transfer restrictions, except for Encumbrances or transfer restrictions of general applicability as may be provided under the Company Stock PlansSecurities Act or applicable securities laws. The Company does not maintain an employee stock purchase plan.
(c) Except for optionsown, rights, securities, convertible notes and plans referred to in Section 3.3(a) and in the Company Rights Agreement, there are no outstanding (i) securities of the Company convertible into directly or exchangeable for shares of capital stock of or other voting securities or equity interests in the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issueindirectly, any capital stock of or other voting securities or ownership equity interests in, or any subscriptions, options, calls, warrants or rights (whether or not currently exercisable) to acquire, or other securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or (iii) restricted sharesexercisable for, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities equity interests of any other Entity. All of the Shares are held either directly or ownership interests indirectly through DTC or in direct registry form through the CompanyCompany Transfer Agent.
(di) Section 3.3(d) None of the outstanding equity interests of any Acquired Company Disclosure Schedule sets forth (i) the date each Company Option was grantedare entitled or subject to any preemptive right, right of repurchase or forfeiture, right of participation, right of maintenance or any similar right; (ii) the number of shares of Company Shares subject to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness of the any Acquired Company having the a right to vote on any matters on which the holders of the outstanding equity interests of such Acquired Company have a right to vote; and (iiiii) there is no Contract to which any Acquired 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 equity interests of such Acquired Company. The Shares and the Company Warrants constitute the only outstanding obligations securities of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of their respective capital stock or other equity interestsregistered under the Securities Act. No Subsidiary of the Company owns any capital stock of the CompanyShares.
(fd) All As of the Capitalization Date: 24,809,840 Shares were reserved and available for issuance pursuant to the Company Equity Plans, of which amount (i) 17,190,540 Shares were subject to issuance pursuant to Company Options granted and outstanding under the Company Equity Plans; (ii) 461,557 Shares were subject to issuance pursuant to Company RSUs granted and outstanding under the Company Equity Plans; and (including Restricted iii) 7,157,743 Shares were subject to issuance pursuant to the ungranted equity pool under the Company SharesEquity Plans.
(e) Except as described in Section 3.03(a) and all except for the Company Options, Company RSUs and Company Warrants outstanding Company Options as of the execution and all delivery of this Agreement (and Shares issuable upon the exercise thereof), as of the date of this Agreement, there are no: (i) outstanding shares of capital stock or other equity interests securities of each Subsidiary have been issued and granted in compliance in all material respects with (i) the Securities Act and other Legal Requirements and any Acquired Company; (ii) outstanding subscriptions, options, calls, warrants or rights (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, performance stock unit, stock appreciation rights, incentive award measured based on the Shares, 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 Acquired Company, in each case other than derivative securities not issued by any Acquired Company; (iii) outstanding securities, instruments, bonds, debentures, notes or obligations that are or may become convertible into or exchangeable for any shares of the capital stock or other securities of any Acquired Company; (iv) stockholder rights plans (or similar plans commonly referred to as a “poison pill”) or Contracts under which any Acquired Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (v) voting trusts or other Contract to which any Acquired Company is a party with respect to the voting of capital stock of any Acquired Company.
(f) The Company has made available to Parent a schedule that sets forth a listing of all requirements Persons who hold outstanding Company Options or Company RSUs as of Material Contractsthe close of business on the Capitalization Date, indicating, with respect to each Company Option and Company RSU, the number of Shares subject thereto and, with respect to each Company Option, the per Share exercise price. Other than as set forth on such schedule, the Company Warrants and equity based awards in the ungranted equity pool under the Company Equity Plans, as of the Capitalization Date, there are no issued, reserved for issuance, outstanding or authorized stock options, restricted stock units, performance stock units, subscriptions, options, warrants, calls, rights, stock appreciation rights, incentive awards measured based on the Shares, phantom stock, profit participation, or similar equity or equity based awards with respect to any Acquired Company.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 1,000,000,000 Company Shares, 1,000,000 shares of Class A Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Preferred Shares”), of: (i) 50,000 200,000,000 Shares, of which are designated 114,785,001 Shares had been issued and were outstanding as Series A Convertible Preferred Stockof the close of business on February 9, 2024 (ii) 1,000,000 shares of which are designated as Series B Junior Participating Preferred Stock (the “Series B PreferredCapitalization Date”) and (iiiii) 50,000 10,000,000 shares of which are designated as Series C Redeemable Convertible Company Preferred Stock. As of August 23, 2007: (i) 373,641,481 Company Shares were issued (and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 shares of Series B Preferred were reserved for future issuance upon exercise of the Company Rights; (iv) 40,468,000 Company Shares were reserved for future issuance pursuant to the Company Stock Plans, of which 27,876,699 Company Shares no shares were subject to outstanding as of the Capitalization Date, and, as of the Capitalization Date, there were an aggregate of 5,226,628 outstanding Company Options Warrants to purchase an aggregate of up to 5,226,628 Shares issued to public investors in the Company’s public equity offerings in November 2021, January 2023 and 2,876,177 were Restricted Company Shares; and (v) approximately 34,762,457 Company Shares were reserved for future issuance upon conversion September 2023. From the Capitalization Date to the execution of the Company Convertible Notes. Since August 23, 2007this Agreement, the Company has not issued any Company Shares other than as a result of except pursuant to the exercise of Company Options reflected Options, the vesting or settlement of Company RSUs or the exercise of Company Warrants, in the immediately preceding sentence as each case outstanding as of August 23the Capitalization Date in accordance with their terms and, 2007from the Capitalization Date to the execution of this Agreement, the Company has not issued any warrants to acquire Shares or 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 Company Shares are, equity interests of the Acquired Companies have been duly authorized and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, and are fully paid and nonassessable and not subject to any preemptive rightsnonassessable.
(b) The Company has delivered or made available to Parent copies of: (A) owns all of the authorized and outstanding capital stock and other equity interests of each of the Company’s Subsidiaries. The outstanding capital stock and other equity interests of the Company’s Subsidiaries owned by the Company Stock Plans, which cover the Company Options are owned free and Restricted Company Shares that are outstanding as of the date of this Agreement; and (B) the forms clear of all award agreements with respect to Encumbrances and transfer restrictions, except for Encumbrances or transfer restrictions of general applicability as may be provided under the Company Stock PlansSecurities Act or applicable securities laws. The Company does not maintain an employee own, directly or indirectly, any capital stock purchase planor other equity 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 other Entity. All of the Shares are held either directly or indirectly through DTC or in direct registry form through the Company Transfer Agent.
(c) Except for options(i) None of the outstanding equity interests of any Acquired Company are entitled or subject to any preemptive right, rightsright of repurchase or forfeiture, securitiesright of participation, convertible notes and plans referred to in Section 3.3(aright of maintenance or any similar right; (ii) and in the Company Rights Agreement, there are no outstanding (i) securities of the Company convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests in the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Section 3.3(d) of the Company Disclosure Schedule sets forth (i) the date each Company Option was granted, (ii) the number of shares of Company Shares subject to each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness of the any Acquired Company having the a right to vote on any matters on which the holders of the outstanding equity interests of such Acquired Company have a right to vote; and (iiiii) there is no Contract to which any Acquired 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 equity interests of such Acquired Company. The Shares and the Company Warrants constitute the only outstanding obligations securities of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of their respective capital stock or other equity interestsregistered under the Securities Act. No Subsidiary of the Company owns any capital stock of the CompanyShares.
(fd) All As of the Capitalization Date: 24,809,840 Shares were reserved and available for issuance pursuant to the Company Equity Plans, of which amount (i) 17,190,540 Shares were subject to issuance pursuant to Company Options granted and outstanding under the Company Equity Plans; (ii) 461,557 Shares were subject to issuance pursuant to Company RSUs granted and outstanding under the Company Equity Plans; and (including Restricted iii) 7,157,743 Shares were subject to issuance pursuant to the ungranted equity pool under the Company SharesEquity Plans.
(e) Except as described in Section 3.03(a) and all except for the Company Options, Company RSUs and Company Warrants outstanding Company Options as of the execution and all delivery of this Agreement (and Shares issuable upon the exercise thereof), as of the date of this Agreement, there are no: (i) outstanding shares of capital stock or other equity interests securities of each Subsidiary have been issued and granted in compliance in all material respects with (i) the Securities Act and other Legal Requirements and any Acquired Company; (ii) outstanding subscriptions, options, calls, warrants or rights (whether or not currently exercisable) to acquire any shares of the capital stock, restricted stock unit, performance stock unit, stock appreciation rights, incentive award measured based on the Shares, 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 Acquired Company, in each case other than derivative securities not issued by any Acquired Company; (iii) outstanding securities, instruments, bonds, debentures, notes or obligations that are or may become convertible into or exchangeable for any shares of the capital stock or other securities of any Acquired Company; (iv) stockholder rights plans (or similar plans commonly referred to as a “poison pill”) or Contracts under which any Acquired Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (v) voting trusts or other Contract to which any Acquired Company is a party with respect to the voting of capital stock of any Acquired Company.
(f) The Company has made available to Parent a schedule that sets forth a listing of all requirements Persons who hold outstanding Company Options or Company RSUs as of Material Contractsthe close of business on the Capitalization Date, indicating, with respect to each Company Option and Company RSU, the number of Shares subject thereto and, with respect to each Company Option, the per Share exercise price. Other than as set forth on such schedule, the Company Warrants and equity based awards in the ungranted equity pool under the Company Equity Plans, as of the Capitalization Date, there are no issued, reserved for issuance, outstanding or authorized stock options, restricted stock units, performance stock units, subscriptions, options, warrants, calls, rights, stock appreciation rights, incentive awards measured based on the Shares, phantom stock, profit participation, or similar equity or equity based awards with respect to any Acquired Company.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists immediately upon the consummation at Closing of 1,000,000,000 Company Sharesthe transactions contemplated hereby, 1,000,000 and prior to giving effect thereto, shall consist of:
(a) Five Million (5,000,000) shares of Class A undesignated preferred stock, $0.01 par value, of which;
(i) Two Hundred Thousand (200,000) shares have been designated as Series D Cumulative Convertible Preferred Stock ("Series D Preferred Stock"), of which 200,000 shares are outstanding, all of which are validly issued and outstanding, fully paid and non-assessable; and
(ii) Four Million Eight Hundred Thousand (4,800,000) shares are currently undesignated preferred stock, none of which are issued and outstanding.
(b) Twenty Five Million (25,000,000) shares of Common Stock, par value $0.01, and 5,000,000 shares of Preferred Stock, par value $0.01 per share (“Preferred Shares”), which (i) 50,000 Nine Million Fifty Thousand Six Hundred Thirty Eight (9,050,638) shares are outstanding, all of which are designated validly issued and outstanding, fully paid and non-assessable; and (ii) Two Million Fifty Eight Thousand Two Hundred Thirty Seven (2,058,237) shares are duly reserved for issuance in connection with the conversion of the Series D Preferred Stock and payment of dividends on the Series D Preferred Stock as Series A Convertible Preferred Stockset forth in the Company's Certificate of Designation related thereto. 14,379,836 shares of Common Stock represent the Company's total common equity on a Fully-Diluted Basis. For purposes of the foregoing, "Fully-Diluted Basis" means (i) all shares of Equity Securities (as defined below) outstanding, (ii) 1,000,000 all securities convertible into or exercisable for shares of which are designated Equity Securities, as Series B Junior Participating Preferred Stock (“Series B Preferred”) if exercised and converted to the fullest extent of their terms, (iii) 50,000 all securities issuable pursuant to contractual or other obligations of which are designated as the Company, excluding Common Stock dividends to be issued to the holders of the Company's Series C Redeemable Convertible D Preferred Stock. As of August 23, 2007: (i) 373,641,481 Company Shares were issued (Stock after the date hereof and not held by the Company as treasury shares) and outstanding; (ii) 5,347,296 Company Shares were held by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 1,000,000 excluding shares of Series B Preferred were capital stock issuable pursuant to the Company's Shareholder Protection Rights Agreement, dated September 15, 1997, as amended (the "Rights Plan"), (iv) all shares of Equity Securities reserved for future issuance upon exercise to employees, consultants or directors of the Company Rights; (iv) 40,468,000 Company Shares were reserved for future issuance pursuant to the Company Stock Plans, of which 27,876,699 Company Shares were subject to outstanding Company Options and 2,876,177 were Restricted Company Shares; or any other Person and (v) approximately 34,762,457 Company Shares were reserved for future issuance all shares issuable upon conversion the exercise of the Company Convertible Notesoptions, warrants and all other rights or securities referred to in Annex 5.4(c). Since August 23, 2007Upon consummation of the transactions contemplated hereby, the Company has not issued number of Shares purchased by the Investor shall represent (i) % of the Company's total common equity on a Fully Diluted Basis and (ii) % of the Company's total common equity on a diluted basis calculated in accordance with Regulation 13D of the Exchange Act (i.e., the percentage the Investor would be required to set forth in any Company Shares other than Schedule 13D that the Investor may be required to file with the Commission as a result of the exercise of Company Options reflected in the immediately preceding sentence as outstanding as of August 23, 2007. All consummation of the transactions contemplated hereby. Annex 5.4(b) attached hereto contains a list of (y) all beneficial holders of record owning five percent (5%) or more of outstanding Company Shares arecapital stock and (z) all other beneficial holders known to the Company, and all Company Shares which may be issued, upon exercise of Company Options and upon conversion of Company Convertible Notes, will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to any preemptive rights.
five percent (b5%) The Company has delivered or made available to Parent copies of: (A) the Company Stock Plans, which cover the Company Options and Restricted Company Shares that are outstanding as more of the date of this Agreement; Company's outstanding capital stock and (B) the forms of all award agreements with respect beneficial holders known to the Company Stock Plans. The Company does not maintain an employee stock purchase plan.
to have filed a Schedule 13D or 13G under the Securities Exchange Act of 1934, as amended (cthe "Exchange Act") Except including, for options, rights, securities, convertible notes and plans referred to in Section 3.3(aboth (y) and in the Company Rights Agreement(z) above, there are no outstanding (i) securities of the Company convertible into or exchangeable for shares of capital stock of or other voting securities or equity interests in the Company, (ii) options, warrants or other rights or arrangements to acquire or other obligations or commitments to issue, any capital stock of or other voting securities or ownership interests in, or any securities convertible into or exchangeable for any capital stock of or other voting securities or ownership interests in the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights to acquire any capital stock or other voting securities or ownership interests in the Company.
(d) Section 3.3(d) of the Company Disclosure Schedule sets forth (i) the date each Company Option was granted, (ii) the number of shares of Company Shares subject to outstanding capital stock beneficially owned by each such Company Option, (iii) the number of vested Company Shares subject to each such Company Option, (vi) the expiration date of each such Company Option, and (vi) the price at which each such Company Option may be exercised. Except as set forth in Section 3.3(d) of the Company Disclosure Schedule with respect to Restricted Company Shares, there are no Company Shares outstanding which are subject to vesting over time or upon the satisfaction of any condition precedent.
(e) There are (i) no bonds, debentures, notes or other indebtedness of the Company having the right to vote outstanding and (ii) no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any of their respective capital stock or other equity interests. No Subsidiary of the Company owns any capital stock of the Company.
(f) All outstanding Company Shares (including Restricted Company Shares) and all outstanding Company Options and all outstanding shares of capital stock or other equity interests of each Subsidiary have been issued and granted in compliance in all material respects with (i) the Securities Act and other Legal Requirements and (ii) all requirements of Material Contracts.holder; and
Appears in 1 contract
Sources: Common Stock Purchase Agreement (Collagenex Pharmaceuticals Inc)