Capitalization, Etc. (a) The authorized capital stock of the Company consists of 30,000,000 Company Shares and 200,000 shares of preferred stock (“Preferred Shares”). As of July 30, 2008: (i) 16,580,886 Company Shares were issued and 16,579,886 Company shares were outstanding; (ii) no Preferred Shares were outstanding; (iii) 3,043,646 Company Shares were 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 Shares were issuable upon exercise of options issued pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended; and (iv) 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’s 2007 Equity Incentive Plan, 431,797 Company Shares were reserved for future issuance pursuant to the Company’s Employee Stock Purchase Plan and 0 Company Shares were reserved for future issuance pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended. The Company has delivered or made available to Parent copies of each of (A) the Company Equity Plans, which cover the stock options and restricted stock awards granted by the Company 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) Except for options, rights, securities and plans referred to in Section 3.3(a), there is no: (i) outstanding option or right to acquire from the Company 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’s Subsidiaries convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, (ii) options, warrants, rights or other commitments or agreements to acquire from any of the Company’s Subsidiaries, or that obligate any of the Company’s Subsidiaries to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, 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, or other equity or voting interest (including any voting debt) in, any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of the Subsidiaries of the Company, being referred to collectively as “Subsidiary Securities”) or (iv) other obligations 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 outstanding Subsidiary Securities.
Appears in 2 contracts
Sources: Merger Agreement (Simtek Corp), Merger Agreement (Cypress Semiconductor Corp /De/)
Capitalization, Etc. (a) The authorized capital stock of the Company consists of: (i) 800,000,000 shares of 30,000,000 Company Shares Common Stock; and 200,000 (ii) 100,000,000 shares of preferred stock stock, $0.00001 par value per share (“Company Preferred SharesStock”). As of July 305:00 p.m. (California time) on October 25, 2008: 2021 (the “Company Listing Date”): (i) 16,580,886 148,929,117 shares of Company Shares Common Stock were issued and 16,579,886 outstanding (which amount includes shares of Company shares were outstandingRestricted set forth in Section 2.3(b)(iv)); (ii) no Preferred Shares were outstanding; (iii) 3,043,646 Company Shares were issuable upon exercise shares of Company Warrants that Preferred Stock were issued and outstanding; and (iii)(Aiii) 1,613,535 no shares of Company Shares Common Stock were issuable upon exercise held by the Company as treasury shares. There are no shares of options issued pursuant to Company Common Stock held by any of the Company’s 2007 Equity Incentive Plan and (B) 600,666 Subsidiaries. There is no Company Shares were issuable upon exercise Contract relating to the voting or registration of options issued any shares of Company Common Stock. Except pursuant to Company Equity Plans and the Company’s 1994 Non-Qualified Stock Option Planagreements evidencing outstanding Company Equity Awards, as amended; and (iv) 954,545 Company Shares were issuable upon conversion 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 Debentures. Common Stock or other securities.
(b) As of July 30, 2008, 1,185,694 5:00 p.m. (California time) on the Company Shares 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) 5,416,004 shares of Company Common Stock are reserved for future issuance pursuant to the Company’s 2007 Equity Incentive 2018 Employee Stock Purchase Plan, 431,797 as amended August 22, 2019 (the “Company Shares ESPP”); (iii) 6,647,631 shares of Company Common Stock were issuable upon settlement or vesting of outstanding Company restricted stock units (“Company RSUs”); (iv) 229,661 shares of restricted Company 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’s Employee Stock Purchase Plan and 0 Company Shares were reserved for future issuance pursuant 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’s 1994 Non-Qualified Stock Option Plan, as amended. The Company has delivered or made available to Parent copies of each of Listing Date: (A1) the Company Equity PlansPlan (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 subject to such Company Equity Award (including, for Company Equity Awards subject to performance-based vesting requirements, if any, both the target and the maximum number of shares of Company Common Stock); (4) the exercise price (if any) of such Company Equity Award; (5) the date on which cover 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 options 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 (9) whether the vesting of such Company 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 recorded on the Company’s financial statements (including any related notes thereto) contained in the Company SEC Reports in accordance with GAAP, and no such grants involved any “back dating,” “forward dating” or similar practices with respect to the effective date of grant (whether intentionally or otherwise).
(d) The Company has Made Available to Parent accurate and complete copies 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 granted by the (including all outstanding Company that Equity Awards, whether payable in equity, cash or otherwise) are outstanding as of the date of this Agreement, and (B) the forms of all stock option agreements option, stock appreciation right, restricted stock unit, deferred stock unit and restricted stock award agreements evidencing such options and stock awardsoptions, stock appreciation rights, restricted stock units, deferred stock units or restricted stock awards (including all outstanding Company Equity Awards, whether payable in equity, cash or otherwise).
(be) Except for options, rights, securities and plans referred to (x) as set forth in Section 3.3(a)2.3(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, there is noin each case, outstanding as of the Company Listing Date and in accordance with their terms, as of the date of this Agreement: (i) the Company does not have any shares of capital stock or other equity interests outstanding; and (ii) other than the Company ESPP, there is no (A) outstanding option equity-based compensation award, subscription, option, call, warrant or right (whether or not currently exercisable) issued or granted by any of the Acquired Companies to acquire from the Company any shares of the capital stock or other securities of any of the Company; or Acquired Companies, (iiB) outstanding security security, instrument or obligation issued, granted or entered into by any of the Company Acquired Companies that is or may become convertible into or exchangeable for any Company Shares.
(c) There are no outstanding (i) shares of the capital stock or other securities of any of the Company’s Subsidiaries convertible into Acquired Companies or exchangeable for (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 with: (i) all applicable securities laws and other applicable Legal Requirements; and (ii) the terms of 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, or other equity or voting interest in, any Subsidiary of the Company, (ii) options, warrants, rights or other commitments or agreements to acquire from any of the Company’s Subsidiaries, or that obligate any each of the Company’s Subsidiaries to issuehave been duly authorized and validly issued, any capital stock ofare fully paid and nonassessable and free of preemptive rights, and are owned directly or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of indirectly by 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, or other equity or voting interest (including any voting debt) in, any Subsidiary of the Company (the items in clauses (i), (ii) free and (iii), together with the capital stock of the Subsidiaries of the Company, being referred to collectively as “Subsidiary Securities”) or (iv) other obligations by the Company or any of its Subsidiaries to make any payments based on the price or value clear of any Subsidiary Securities. There are no Contracts or arrangements of any kind which obligate any of the Company’s Subsidiaries to repurchaseEncumbrances, redeem or otherwise acquire any outstanding Subsidiary Securitiesexcept 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 30,000,000 1,000,000,000 Company Shares and 200,000 Shares, 1,000,000 shares of preferred stock 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 July 30August 23, 20082007: (i) 16,580,886 373,641,481 Company Shares were issued (and 16,579,886 not held by the Company shares as treasury shares) and outstanding; (ii) 5,347,296 Company Shares were outstandingheld by the Company as treasury shares; (ii) no Preferred Shares were outstanding; (iii) 3,043,646 Company Shares 1,000,000 shares of Series B Preferred were issuable reserved for future issuance upon exercise of the Company Warrants that were issued and outstandingRights; (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 Shares were issuable upon exercise of options issued pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended; and (iv) 954,545 Company Shares were issuable upon conversion of the Company Debentures. As of July 30, 2008, 1,185,694 40,468,000 Company Shares were reserved for future issuance pursuant to the Company’s 2007 Equity Incentive PlanCompany Stock Plans, 431,797 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 pursuant to upon conversion of the Company’s Employee Stock Purchase Plan and 0 Company Convertible Notes. Since August 23, 2007, the Company has not issued any Company Shares were reserved for future issuance pursuant 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 the Company’s 1994 Non-Qualified Stock Option Plan, as amended. any preemptive rights.
(b) The Company has delivered or made available to Parent copies of each of of: (A) the Company Equity Stock Plans, which cover the stock options Company Options and restricted stock awards granted by the 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 with respect to the Company Stock Plans. The Company does not maintain an employee stock awardspurchase plan.
(bc) Except for options, rights, securities securities, convertible notes and plans referred to in Section 3.3(a)) and in the Company Rights Agreement, there is no: (i) outstanding option or right to acquire from the Company 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’s Subsidiaries Company convertible into or exchangeable for shares of capital stock of, of or other voting securities or equity or voting interest in, any Subsidiary of interests in the Company, (ii) options, warrants, warrants or other rights or other commitments or agreements arrangements to acquire from any of the Company’s Subsidiaries, or that obligate any of the Company’s Subsidiaries other obligations or commitments to issue, any capital stock of, of or other equity voting securities or voting interest 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 capital stock of, or other equity or voting interest in, any Subsidiary of the CompanyCompany Shares subject to each such Company Option, (iii) obligations 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 grantRestricted Company Shares, extend there are no Company Shares outstanding which are subject to vesting over time or enter into upon the satisfaction of any subscriptioncondition precedent.
(e) There are (i) no bonds, warrantdebentures, right, convertible or exchangeable security notes or other similar agreement or commitment relating to any capital stock of, or other equity or voting interest (including any voting debt) in, any Subsidiary indebtedness of the Company (having the items in clauses (i), right to vote outstanding and (ii) and (iii), together with the capital stock no outstanding obligations of the Subsidiaries of the Company, being referred to collectively as “Subsidiary Securities”) or (iv) other obligations 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 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 Securitieshave 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 30,000,000 Company Shares and 200,000 shares of preferred stock (“Preferred Shares”). As of July 30, 2008: (i) 16,580,886 Company Shares were issued and 16,579,886 Company shares were outstanding; (ii) no Preferred Shares were outstanding; (iii) 3,043,646 Company Shares were 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 Shares were issuable upon exercise of options issued pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended; and (iv) 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’s 2007 Equity Incentive Plan, 431,797 Company Shares were reserved for future issuance pursuant to the Company’s Employee Stock Purchase Plan and 0 Company Shares were reserved for future issuance pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended. The Company has delivered or made available to Parent copies of each of (A) the Company Equity Plans, which cover the stock options and restricted stock awards granted by the Company that are outstanding as of the date of this Agreement, the authorized capital stock of Parent consists of: (i) 139,100,000 shares of common stock, having a par value of $0.01 per share (“Parent Common Stock”), of which, as of September 30, 2009, 37,715,483 shares are issued and outstanding; and (ii) 80,364,939 shares of preferred stock, having a par value of $0.01 per share (“Parent Preferred Stock”) of which (A) 9,000,000 shares of Series A Preferred Stock are authorized, all of which shares are issued and outstanding; (B) 3,533,200 shares of Series B-1 Convertible Preferred Stock are authorized, all of which are issued and outstanding; (C) 58,904,320 shares of Series C-1 Convertible Preferred Stock are authorized, 58,628,599 of which are issued and outstanding; (D) 4,827,419 shares of Series D Convertible Preferred Stock are authorized, all of which are issued and outstanding; (E) 2,500,000 shares of Series E Convertible Preferred Stock are authorized, 2,499,980 of which are issued and outstanding; and (F) 1,600,000 shares of Series E-1 Convertible Preferred Stock are authorized, none of which are issued and outstanding. All of the forms outstanding shares of all stock option agreements Parent Common Stock and restricted stock award agreements evidencing such options Parent Preferred Stock have been duly authorized and stock awardsvalidly issued, and are fully paid and non-assessable.
(b) Except As of the date of this Agreement, Parent has reserved 29,715,756 shares of Parent Common Stock for optionsissuance under its 1999 Stock Incentive Plan, rightsas amended, securities and plans referred to in Section 3.3(aits 2009 Equity Incentive Plan (collectively, the “Parent Equity Plans”), there is no: of which, as of September 30, 2009, (i) 8,725,536 shares have been issued pursuant to restricted stock purchase agreements and/or the exercise of outstanding option or right to acquire from the Company 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’s Subsidiaries convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Companyoptions, (ii) options, warrants, rights or other commitments or agreements options to acquire from any of the Company’s Subsidiaries, or that obligate any of the Company’s Subsidiaries to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for purchase 18,231,002 shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Companyhave been granted and are currently outstanding, (iii) obligations 980,000 shares are reserved for issuance related to outstanding restricted stock units, and (iv) 1,779,218 shares remain available for future issuances of restricted stock agreements or grants of options to directors, officers, employees and consultants of Parent under the Company Parent Equity Plans (collectively, the foregoing options, stock purchase agreements and restricted stock units referred to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interest (including any voting debt) in, any Subsidiary of in the Company (the items in foregoing clauses (i) — (iv), the “Parent Options”). As of the date of this Agreement, Parent has reserved a total of (iiy) 275,721 shares of its Series C-1 Preferred Stock for purchase upon exercise of warrants granted to certain lenders, and (iii), together with the capital stock z) 699,301 shares of the Subsidiaries Parent Common Stock for purchase upon exercise of the Company, being referred to collectively as “Subsidiary Securities”) or (iv) other obligations 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 outstanding Subsidiary Securities.a warrant
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 30,000,000 200,000,000 shares of Company Shares Common Stock and 200,000 1,000,000 shares of preferred stock (“Preferred Shares”). As of July 305:00 p.m. Pacific Time on May 15, 2008: (i) 16,580,886 19,031,276 shares of Company Shares Common Stock were issued and 16,579,886 outstanding (including shares of Company Common Stock included in the Company Units), of which no shares were outstandingunvested or were subject to any repurchase rights, risk of forfeiture or other similar condition in favor of the Company; (ii) no Preferred Shares were issued or outstanding; (iii) 3,043,646 33,033,013 shares of Company Shares Common Stock were issuable upon exercise of Company Warrants that were issued and outstandingoutstanding (including shares of Company Common Stock issuable upon exercise of Company Warrants included in the Company Units); (iii)(Aiii) 1,613,535 3,108,618 shares of Company Shares Common Stock were issuable upon exercise of options issued pursuant to the Company’s 2007 Company Equity Incentive Plan and (B) 600,666 Company Shares were issuable upon exercise of options issued pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended; and (iv) 954,545 17,489,813 shares of Company Shares Common Stock were issuable upon conversion of the Company Debentures$128,200,000 aggregate principal amount of Convertible Notes. As of July 305:00 p.m. Pacific Time on May 15, 2008, 1,185,694 2,064,090 Company Shares 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’s 2007 Company Equity Incentive Plan, 431,797 Company Shares were reserved for future issuance pursuant to the Company’s Employee Stock Purchase Plan and 0 Company Shares were reserved for future issuance pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended. The Company has delivered or made available to Parent or Parent’s legal advisor copies of each of (A) the Company Equity PlansPlan, which cover covers the stock options and restricted stock awards granted by the Company 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 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 and plans referred to in Section 3.3(a)2.3(a) and except as set forth in Part 2.3(d) of the Company Disclosure Schedule, as of the date of this Agreement, there is no: (i) outstanding option subscription, option, call, warrant or stock appreciation right or other right (whether or not currently exercisable) to acquire from the Company any shares of the capital stock or other securities of the Company or any Subsidiary of the Company; or (ii) outstanding security of the Company restricted stock award, restricted stock unit award, performance stock award or performance cash award; (iii) outstanding security, instrument or obligation that is or would reasonably be expected to become convertible into or exchangeable for any Company Shares.
(c) There are no outstanding (i) shares of the capital stock or other securities of any of the Company’s Subsidiaries convertible into Company or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company; (iv) contract under which the Company or any Subsidiary of the Company 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.
(iif) All outstanding shares of capital stock, options, warrants, stock appreciation rights and other securities or equity interests of 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 commitments or agreements to acquire from any equity interests of each of the Company’s Subsidiaries: (i) have been duly authorized and validly issued; (ii) are nonassessable and free of preemptive rights, or that obligate any with no obligation to contribute additional capital; and (iii) except as set forth in Part 2.3(g) of the Company’s Subsidiaries to issueCompany Disclosure Schedule, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares are owned beneficially and of capital stock of, or other equity or voting interest in, any Subsidiary of record by 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, or other equity or voting interest (including any voting debt) in, any Subsidiary of the Company (the items in clauses (i), (ii) free and (iii), together with the capital stock of the Subsidiaries of the Company, being referred to collectively as “Subsidiary Securities”) or (iv) other obligations by the Company or any of its Subsidiaries to make any payments based on the price or value clear 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 outstanding Subsidiary SecuritiesEncumbrances (other than Permitted Encumbrances).
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 30,000,000 Company Shares and 200,000 shares of preferred stock (“Preferred Shares”). As of July 30, 2008of: (i) 16,580,886 141,000,000 shares of Company Shares were Common Stock (with $0.001 par value), of which 30,781,034 shares have been issued and 16,579,886 Company shares were outstanding; (ii) no Preferred Shares were outstanding; (iii) 3,043,646 Company Shares were 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 Shares were issuable upon exercise of options issued pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended; and (iv) 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’s 2007 Equity Incentive Plan, 431,797 Company Shares were reserved for future issuance pursuant to the Company’s Employee Stock Purchase Plan and 0 Company Shares were reserved for future issuance pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended. The Company has delivered or made available to Parent copies of each of (A) the Company Equity Plans, which cover the stock options and restricted stock awards granted by the Company that are outstanding as of the date Signing Date; and (ii) 73,542,017 shares of this AgreementCompany Preferred Stock (with $0.001 par value) of which (1) 4,590,000 have been designated “Series A Preferred Stock,” all of which have been issued and are outstanding as of the Signing Date; (2) 8,399,819 have been designated “Series B Preferred Stock,” 8,014,573 shares of which have been issued and are outstanding as of the Signing Date; (3) 3,846,371 have been designated “Series C Preferred Stock,” 3,735,857 shares of which have been issued and are outstanding as of the Signing Date; (4) 16,060,562 have been designated “Series D Preferred Stock,” 16,031,233 shares of which have been issued and are outstanding as of the Signing Date; (5) 5,027,622 have been designated “Series E Preferred Stock,” all of which have been issued and are outstanding as of the Signing Date; (6) 27,697,643 have been designated “Series G Preferred Stock,” 26,054,002 shares of which have been issued and are outstanding as of the Signing Date; and (7) 7,920,000 have been designated “Series G-1 Preferred Stock,” 4,969,219 shares of which have been issued and are outstanding as of the Signing Date. Each outstanding share of Company Preferred Stock is convertible into one share of Company Common Stock. All of the outstanding shares of Company Common Stock and Company Preferred Stock have been duly authorized and validly issued, and (Bare fully paid and non-assessable. Part 2.3(a) of the forms Disclosure Schedule provides an accurate and complete description of all stock the terms of each repurchase option agreements which is held by the Company and restricted stock award agreements evidencing to which any of such options and stock awardsshares is subject.
(b) Except The Company has reserved 5,268,032 shares of Company Common Stock for optionsissuance under the 2009 Equity Plan, rightsof which options to purchase 25,000 shares are outstanding as of the Signing Date. Options to purchase 18,734,454 shares of Company Common Stock are outstanding as of the Signing Date under the 1999 Stock Plan and no shares remain available for issuance thereunder. Part 2.3(b) of the Disclosure Schedule accurately sets forth, securities and plans referred with respect to in Section 3.3(a), there each Company Option that is nooutstanding as of the Signing Date: (i) outstanding option or right to acquire from the Company any shares name of the capital stock holder of the Companysuch Company Option; or (ii) outstanding security the total number 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’s Subsidiaries convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, (ii) options, warrants, rights or other commitments or agreements Company Common Stock that are subject to acquire from any of the Company’s Subsidiaries, or that obligate any of the Company’s Subsidiaries to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, such Company Option; (iii) obligations the date on which such Company Option was granted and the term of the such Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interest (including any voting debt) in, any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of the Subsidiaries of the Company, being referred to collectively as “Subsidiary Securities”) or Option; (iv) other obligations by the vesting commencement date and schedule for such Company or any of its Subsidiaries Option and the extent to make any payments based on which the price or value of any Subsidiary Securities. There are no Contracts or arrangements of any kind which obligate any vesting schedule will be accelerated as a result of the Merger (whether alone or in connection with subsequent or additional events); (v) the exercise price (or purchase price) per share of Company Common Stock purchasable under such Company Option; (vi) whether such Company Option has been designated (or represents shares purchased under) an “incentive stock option” as defined in Section 422 of the Code; and (vii) the residence or domicile of each person holding an Company’s Subsidiaries to repurchase, redeem or otherwise acquire any outstanding Subsidiary Securities.
Appears in 1 contract
Capitalization, Etc. (a) The authorized share capital stock of the Company consists of 30,000,000 Company Shares and 200,000 shares of preferred stock is $50,000 divided into (“i) 457,251,930 Ordinary Shares, (ii) 12,000,000 Series A Preferred Shares”), (iii) 10,784,344 Series A+ Preferred Shares, (iv) 2,704,012 Series A-2 Preferred Shares, and (v) 17,259,714 Series B Preferred Shares. As of July 30, 2008: the date of this Agreement:
(i) 16,580,886 Company Shares were no undesignated shares are issued and 16,579,886 Company shares were outstanding; ;
(ii) no Preferred Company Shares were outstanding; are held by the Company in its treasury;
(iii) 3,043,646 Company 6,400,000 Ordinary Shares were issuable upon exercise of Company Warrants that were are 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 Shares were issuable upon exercise of options issued pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended; and ;
(iv) 954,545 Company 12,000,000 Series A Preferred Shares were issuable upon conversion of the Company Debentures. As of July 30, 2008, 1,185,694 Company are issued and outstanding;
(v) 10,784,344 Series A+ Preferred Shares were are issued and outstanding;
(vi) 2,704,012 Series A-2 Preferred Shares are issued and outstanding;
(vii) 17,259,714 Series B Preferred Shares are issued and outstanding;
(viii) 0 Ordinary Shares have been reserved and are available for future issuance pursuant to the Company’s 2007 Company Equity Incentive Plan;
(ix) Company Options to acquire 7,829,970 Ordinary Shares upon exercise are issued and outstanding;
(x) Company RSUs with respect to 1,254,470 Ordinary Shares are outstanding; and
(xi) Company Warrants to purchase 146,859 Ordinary Shares are outstanding.
(b) Except for the Company Shares, 431,797 Company Options, Company RSUs and Company Warrants described in Subsection (a) above or as set forth in the Company Organizational Documents, (i) there are no other (A) options, warrants, calls, rights (including conversion rights, preemptive rights, co-sale rights, rights of first refusal or other similar rights) issued or granted by the Company or (B) Contracts to which the Company is a party that requires, and there are no securities of the Company outstanding which upon conversion or exchange would require, the issuance, sale or transfer of any additional shares of capital shares or other equity securities of the Company or other securities convertible into, exchangeable for, or evidencing the right to subscribe for or purchase, Company Shares were reserved for future issuance pursuant or other equity securities of the Company, (ii) there are no obligations, contingent or otherwise, of the Company to (A) repurchase, redeem or otherwise acquire any Company Shares, or (B) provide a loan to, make a capital contribution to, or otherwise acquire any equity interests in any Person, and (iii) there are no outstanding share appreciation rights, phantom shares, profit participation or similar rights with respect to the Company’s Employee Stock Purchase Plan and 0 Company Shares were reserved for future issuance pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended. The Company has delivered the Consideration Spreadsheet concurrently with the execution of this Agreement.
(c) All of the outstanding Company Shares and other securities (including Company Options, Company RSUs and Company Warrants) of the Company have been duly authorized and validly issued in compliance with applicable Law, and have been issued and granted in all material respects in compliance with all applicable securities Laws and other applicable Laws, including the Company Organizational Documents. No Company Shares are, or have ever been, represented by physical share certificates.
(d) Part 2.3(d) of the Company Disclosure Schedule contains a true, correct and complete list, as of the date hereof, of (i) the name of the holders of the Company Warrants, (ii) the number and class of Company Shares subject to the Company Warrants, (iii) the exercise price of the Company Warrants, and (iv) the termination date of the Company Warrants. The Company has made available to Parent true and complete copies of each of the Company Warrants.
(Ae) All outstanding Company Options and Company RSUs have been granted under the Company Equity Plans, which cover the stock options Plan. The Company has made available to Parent true and restricted stock awards granted by complete copies of the Company Equity Plan and the forms of all option agreements and form of grant notices evidencing Company Options. Part 2.3(e) of the Company Disclosure Schedule contains a true, correct and complete list, as of the date of this Agreement of (i) the name and country of residence and citizenship of the holder of the Company Options or Company RSUs, (ii) the number of Company Shares subject to such Company Options or Company RSUs, (iii) the vesting schedule of such Company Option or Company RSU, including the number of vested and unvested shares as of the date of this Agreement and any acceleration provisions, (iv) the grant date of such Company Option or Company RSU, (v) the exercise price of such Company Option, (vi) the expiration date of such Company Option, (vii) whether such Company Option is an “incentive stock option” (as defined in Section 422 of the Code) or a non-qualified stock option, and (viii) whether the holder is a current or former employee or service provider of the Company or a Subsidiary of the Company. No Company Option is or has been a “nonqualified deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code. The treatment of the Company Options and Company RSUs that are outstanding have been granted under the Company Equity Plan as provided in this Agreement is permitted pursuant to the terms of the Company Equity Plan.
(f) Part 2.3(f) of the Company Disclosure Schedule contains an accurate and complete list, 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) Except for options, rights, securities and plans referred to in Section 3.3(a), there is no: (i) outstanding option or right to acquire from the Company 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’s Subsidiaries convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any each Subsidiary of the Company, (ii) options, warrants, rights or other commitments or agreements to acquire from any the record holder of the Company’s Subsidiariesequity interests in such Subsidiary, or that obligate any of the Company’s Subsidiaries to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, and (iii) obligations the jurisdiction of the Company to grant, extend incorporation or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interest (including any voting debt) in, any organization of such Subsidiary. Each Subsidiary of the Company (is wholly owned, directly or indirectly, by the items Company, and the equity interests in clauses (i)each Subsidiary of the Company is held by its record owner free and clear of any Liens, (ii) and (iii), together with other than restrictions on transfer under applicable securities Laws. All of the outstanding share capital stock of each of the Subsidiaries of the Company have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights, and are owned beneficially and of record by the Company, being referred to collectively as “Subsidiary Securities”free and clear of any Liens, other than restrictions on transfer under applicable securities Laws. There are no other existing options, warrants, calls, rights (including conversion rights, preemptive rights, co-sale rights, rights of first refusal or other similar rights) issued or (iv) other obligations granted by the Company or any of its Subsidiaries to make requiring, which would require, the issuance, sale or transfer of any payments based on the price shares of capital stock or value other equity securities of any Subsidiary Securities. There are no Contracts of the Company to any person other than the Company or arrangements other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase equity securities of any kind which obligate any of the Company’s Subsidiaries to repurchase, redeem or otherwise acquire any outstanding Subsidiary SecuritiesSubsidiary.
Appears in 1 contract
Sources: Merger Agreement (Nuvation Bio Inc.)
Capitalization, Etc. (a) The As of the date of this Agreement, the authorized capital stock of the Company consists of 30,000,000 Company Shares and 200,000 shares of preferred stock (“Preferred Shares”). As of July 30, 2008of: (i) 16,580,886 29,250,000 shares of Company Shares were Common Stock, of which 8,659,000 shares are issued and 16,579,886 Company shares were outstanding; and (ii) no 13,375,000 shares of Company Series A Preferred Shares were Stock, 12,238,394 of which are issued and outstanding; . All of the issued and outstanding shares of Company Common Stock and Company Series A Preferred Stock have been duly authorized and validly issued, and are fully paid and non-assessable.
(b) As of the date of this Agreement, the Company has reserved: (a) 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 have been issued pursuant to restricted stock purchase agreements and/or the exercise of outstanding options, (ii) options to purchase 4,408,185 shares have been granted and are currently outstanding, and (iii) 3,043,646 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 Shares were (collectively, the “Company Options”), and (b) 2,998,095 shares of Series A Preferred Stock issuable upon exercise of outstanding warrants (collectively, the “Company Warrants that were issued and outstanding; Warrants”).
(iii)(Ac) 1,613,535 Company Shares were issuable upon exercise of options issued pursuant to the Company’s 2007 Equity Incentive Plan and (BPart 2.3(c) 600,666 Company Shares were issuable upon exercise of options issued pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended; and (iv) 954,545 Company Shares were issuable upon conversion of the Company Debentures. As of July 30Disclosure Schedule accurately sets forth, 2008, 1,185,694 with respect to each Company Shares were reserved for future issuance pursuant to the Company’s 2007 Equity Incentive Plan, 431,797 Option and Company Shares were reserved for future issuance pursuant to the Company’s Employee Stock Purchase Plan and 0 Company Shares were reserved for future issuance pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended. The Company has delivered or made available to Parent copies of each of (A) the Company Equity Plans, which cover the stock options and restricted stock awards granted by the 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 (Bii) the forms total number of all stock option agreements and restricted stock award agreements evidencing shares of Company Common Stock or Company Series A Preferred Stock that are subject to such options and stock awards.
(b) 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 for options, rights, securities and plans referred to as set forth above in Section 3.3(a2.3(b), or in Part 2.3(c) of the Company Disclosure Schedule, there is no: (iA) outstanding option subscription, option, call, warrant or right (whether or not currently exercisable) to acquire from the Company any shares of the capital stock or other securities of the Company; or (iiB) outstanding security of the Company security, instrument or obligation that is or may become convertible into or exchangeable for any Company Shares.
(c) There are no outstanding (i) shares of the capital stock or other securities of any of the Company’s Subsidiaries convertible into ; (C) Contract under which the Company is or exchangeable for may become obligated to sell or otherwise issue any shares of its capital stock of, or any other equity securities; or voting interest in, any Subsidiary of (D) to the Company, (ii) options, warrants, rights or other commitments or agreements to acquire from any of the Company’s Subsidiaries, or that obligate any of the Company’s Subsidiaries to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, 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, or other equity or voting interest (including any voting debt) in, any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of the Subsidiaries of the Company, being referred to collectively as “Subsidiary Securities”) or (iv) other obligations 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 outstanding Subsidiary Securities.’s
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 30,000,000 35,000,000 Company Shares and 200,000 2,000,000 shares of preferred stock (“"Preferred Shares”"). As of July 3019, 20082005: (i) 16,580,886 14,978,324 Company Shares were issued and 16,579,886 outstanding, including 565,466 unvested restricted Company shares were outstandingShares; (ii) no Preferred Shares were outstanding; (iii) 3,043,646 Company Shares were 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 Shares were issuable upon exercise of options issued pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended; and (iv) 954,545 Company Shares were issuable upon conversion of the Company Debentures. As of July 30, 2008, 1,185,694 Company 200,000 Preferred Shares were reserved for future issuance upon exercise of the Company Rights; (iv) options to purchase 344,058 Company Shares were outstanding; and (v) 564,670 Company Shares remained available for future issuance or grant pursuant to the Company’s 2007 Equity Incentive Company Option Plan. Between July 19, 431,797 2005 and the date of this Agreement, (A) the Company has not issued any Company Shares other than in connection with the exercise of stock options outstanding on July 19, 2005, and (B) the Company has not granted any stock options. Except as set forth in this Section 3.3(a), at the close of business on July 19, 2005 no shares of capital stock of the Company were issued, reserved for future issuance pursuant to the Company’s Employee Stock Purchase Plan or outstanding. All issued and 0 outstanding Company Shares were reserved for future issuance pursuant to the Company’s 1994 Non-Qualified Stock Option Planare duly authorized, as amendedvalidly issued, fully paid and nonassessable. The Company has delivered or made available to Parent copies of each of (A1) the Company Equity PlansOption Plan, which cover covers all of the stock options and unvested restricted stock awards granted by the Company that are outstanding as of the date of this Agreement, and (B2) the forms of all stock option agreements and restricted stock award agreements evidencing such options and stock awards.
(b) Except for options, rights, securities and plans referred to in Section 3.3(a)Part 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 is no: 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) outstanding option or right to acquire from 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 or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company; Company or any of its Subsidiaries, (ii) outstanding security of obligating the Company that is convertible into or exchangeable for any Company Shares.
(c) There are no outstanding (i) securities of 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 Company’s right to receive from the Company or any of its Subsidiaries convertible into any economic benefit or exchangeable for shares right determined by reference to the economic benefits and rights accruing to holders of capital stock of, or other equity or voting interest interests in, any Subsidiary of the Company, (ii) options, warrants, rights Company or other commitments or agreements to acquire from any of the Company’s its Subsidiaries, or that obligate any of the Company’s Subsidiaries to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, .
(iiic) obligations Part 3.3(c) of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interest (including any voting debt) in, any Subsidiary Disclosure Schedule contains a schedule as of the date of this Agreement setting forth the number of shares underlying each outstanding stock option granted by the Company and the exercise price, vesting date (the items in clauses (i), (iior dates) and (iii), together with the capital expiration date of such stock option. There are no preemptive or similar rights held by any holder of the Subsidiaries any class of the Company, being referred to collectively as “Subsidiary Securities”) or (iv) other obligations by securities of the Company or any of its Subsidiaries with respect to make such securities. All outstanding unvested stock options granted by the Company will accelerate at or prior to the Effective Time, and all outstanding stock options granted by the Company will terminate at or prior to the Effective Time.
(d) Part 3.3(d) of the Company 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 payments based on the price or value of any Subsidiary Securities. There are no Contracts or arrangements of any kind which obligate any other securities of the Company’s .
(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 repurchasevote (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, redeem the Transaction Support Agreements and any other agreements or otherwise acquire any outstanding Subsidiary Securitiesarrangements 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.
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of the Company consists of 30,000,000 Company Shares and 200,000 shares of preferred stock (“Preferred Shares”). As of July 30, 2008of: (i) 16,580,886 6,000,000,000 shares of Company Shares were Common Stock, of which 3,004,205,406 shares have been issued and 16,579,886 Company shares were outstandingare outstanding as of October 11, 2012; (ii) 500,000,000 shares of Company Series 2 Common Stock, of which no Preferred Shares were shares are issued or are outstanding; (iii) 3,043,646 Company Shares were issuable upon exercise 100,000,000 shares 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 Shares were issuable upon exercise of options issued pursuant to the Company’s 1994 Non-Qualified Stock Option PlanVoting Common Stock, as amendedof which no shares are issued or are outstanding; and (iv) 954,545 20,000,000 shares of Company Shares were issuable upon conversion Preferred Stock, of the Company Debentureswhich (A) 3,000,000 shares have been designated as Preferred Stock-Sixth Series, Junior Participating, of which no shares have been issued or are outstanding, (B) 300,000 shares have been designated as Preferred Stock-Seventh Series, Convertible, of which no shares have been issued or are outstanding, (C) 232,745 shares have been designated as Ninth Series Zero Coupon Convertible Preferred Stock Due 2013, of which no shares have been issued or are outstanding, and (D) 16,467,255 shares have not been designated, have not been issued and are not outstanding. As of July 30October 11, 20082012, 1,185,694 the Company Shares were held no shares of its capital stock in its treasury. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable and free of preemptive rights, purchase option, call, right of first refusal or any similar right. The Company is not under (and will not as a result of the Merger or any of the other Contemplated Transactions become under) any contractual obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock or other voting securities, except for obligations under Company Plans.
(b) As of October 11, 2012: (i) 66,866,935 shares of Company Common Stock are subject to issuance pursuant to Company Options; (ii) 73,813,916 shares of Company Common Stock are reserved for future issuance pursuant to the Company’s 2007 Equity Incentive Plan, 431,797 Company Shares were ESPP; (iii) 22,227,728 shares of Company Common Stock are reserved for future issuance pursuant to the Company’s Employee Company Equity Awards; and (iv) 135,195,891 shares of Company Common Stock Purchase Plan and 0 Company Shares were are reserved for future issuance pursuant to equity awards not yet granted under the Company’s 1994 Non-Qualified Stock Option Plan, as amendedCompany Equity Plans. The Company has delivered or made available Made Available to Parent copies a complete and accurate list that sets forth with respect to each Company Equity Award outstanding as of each of October 11, 2012 the following information: (A) the particular plan (if any) pursuant to which such Company Equity Plans, which cover the stock options and restricted stock awards granted by the Company that are outstanding as of the date of this Agreement, and Award was granted; (B) the forms number of shares of Company Common Stock subject to such Company Equity Award; (C) the per share exercise price (if any) of such Company Equity Award; (D) the date on which such Company Equity Award was granted; (E) the date on which such Company Equity Award expires; (F) if such Company Equity Award is a Company Option, whether such Company Option is an “incentive stock option” (as defined in the Code) or a non-qualified stock option; (G) whether such Company Equity Award is a restricted stock unit or a restricted stock award; and (H) 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. The Company has Made Available to Parent accurate and complete copies of all Company Equity Plans pursuant to which any outstanding Company Equity Awards were granted by the Company. No vesting schedule or provision, whether time-based or performance-based, of any Company Equity Award, will accelerate solely as a consequence of the Merger or any of the other Contemplated Transactions. There are no outstanding or authorized stock option agreements and restricted stock award agreements evidencing such options and stock awardsappreciation, phantom stock, profit participation or similar rights or equity based awards with respect to any of the Acquired Corporations other than as set forth in Part 3.5(b) of the Company Disclosure Schedule.
(bc) Except for options, rights, securities and plans referred to as set forth in Section 3.3(a3.5(b), there is no: (i) outstanding option subscription, option, call, warrant or right (whether or not currently exercisable) to acquire from the Company any shares of the capital stock or other voting securities of any of the CompanyAcquired Corporations; or (ii) outstanding security of the Company security, instrument or obligation that is or may become convertible into or exchangeable for any Company Shares.
(c) There are no outstanding (i) shares of the capital stock or other voting securities of any of the Company’s Subsidiaries convertible into Acquired Corporations; or exchangeable for (iii) stockholder rights plan (or similar plan commonly referred to as a “poison pill”) or, other than any Company Plan, Contract under which the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other voting securities.
(d) All outstanding shares of Company Common Stock, Company Equity Awards and other securities of any of the Acquired Corporations have been issued and granted in compliance in all material respects with all applicable securities laws and other applicable Legal Requirements.
(e) All of the outstanding shares of capital stock ofof each of the material Acquired Corporations have been duly authorized and validly issued, are fully paid and nonassessable and free of preemptive rights and are owned beneficially and of record by the Company or other equity or voting interest in, any a Subsidiary of the Company, (ii) options, warrants, rights or other commitments or agreements to acquire from any of the Company’s Subsidiaries, or that obligate any of the Company’s Subsidiaries to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, 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, or other equity or voting interest (including any voting debt) in, any Subsidiary of the Company (the items in clauses (i), (ii) free and (iii), together with the capital stock of the Subsidiaries of the Company, being referred to collectively as “Subsidiary Securities”) or (iv) other obligations by the Company or any of its Subsidiaries to make any payments based on the price or value clear 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 outstanding Subsidiary Securitiesmaterial Liens.
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Capitalization, Etc. (a) The authorized capital stock Company Capital Stock as of the Company date of this Agreement consists of 30,000,000 Company Shares and 200,000 shares of preferred stock (“Preferred Shares”). As of July 30, 2008: (i) 16,580,886 11,500,000 shares of Company Shares were Common Stock, par value $0.00001 per share, of which 4,279,705 shares are issued and 16,579,886 Company shares were outstanding; (ii) no Preferred Shares were outstanding; (iii) 3,043,646 Company Shares were 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 Shares were issuable upon exercise of options issued pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended; and (iv) 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’s 2007 Equity Incentive Plan, 431,797 Company Shares were reserved for future issuance pursuant to the Company’s Employee Stock Purchase Plan and 0 Company Shares were reserved for future issuance pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended. The Company has delivered or made available to Parent copies of each of (A) the Company Equity Plans, which cover the stock options and restricted stock awards granted by the Company that are outstanding as of the date of this Agreement, (ii) 4,350,000 shares of preferred stock, par value $0.00001 per share, of which (A) 371,396 shares have been designated as “Series A Preferred Stock” and of which 371,396 shares are issued and outstanding as of the date of this Agreement (the “Series A Preferred Stock”), (B) 1,071,240 shares have been designated as “Series B Preferred Stock” and of which 1,071,237 shares are issued and outstanding as of the date of this Agreement (the “Series B Preferred Stock”), (C) 1,345,700 shares have been designated as “Series C Preferred Stock” and of which 1,345,700 shares are issued and outstanding as of the date of this Agreement (the “Series C Preferred Stock)” and (D) 1,135,650 shares have been designated as “Series D Preferred Stock” and of which no shares are issued and outstanding as of the date of this Agreement (the “Series D Preferred Stock,” and, collectively with the Series A Preferred Stock, the Series B Preferred Stock, and the Series C Preferred Stock, the “Company Preferred Stock”). The Company does not hold any shares of its capital stock in its treasury. Except as contemplated herein, 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 or Company Preferred Stock. An aggregate of 2,788,333 shares of Company Common Stock are issuable upon conversion of the Company Preferred Stock.
(b) All of the outstanding shares of Company Common Stock and Company Preferred Stock have been duly authorized and validly issued, and are fully paid and nonassessable and are free of any Encumbrances, other than those imposed by relevant securities laws. None of the outstanding shares of Company Common Stock or Company Preferred Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right.
(c) Except for the Company’s 2016 Equity Incentive Plan, as amended (the “Company Plan”), the Company does not have any stock option plan or any other plan, program, agreement or arrangement providing for any equity-based compensation for any Person. As of the date of this Agreement, the Company has reserved 3,217,700 shares of Company Common Stock for issuance under the Company Plan, of which 65,000 shares have been issued and are currently outstanding, 2,270,079 shares have been reserved for issuance upon exercise of Company Options granted under the Company Plan, and 882,621 shares of Company Common Stock remain available for future issuance pursuant to the Company Plan. Section 2.6(c) of the Company Disclosure Schedule sets forth the following information with respect to each Company Option outstanding as of the date of this Agreement: (i) the name of the optionee; (ii) the number of shares of Company Common Stock subject to such Company Option at the time of grant; (iii) the number of shares of Company Common Stock subject to such Company Option as of the date of this Agreement; (iv) the exercise price of such Company Option; (v) the date on which such Company Option was granted; (vi) the applicable vesting schedule, including the number of vested and unvested shares as of the date of this Agreement; (vii) the date on which such Company Option expires; and (viii) whether such Company Option is an “incentive stock option” (as defined in the Code) or a non-qualified stock option. The Company has made available to Caladrius an accurate and complete copy of the Company Plan and forms of all stock option agreements and restricted stock award agreements evidencing such options and stock awardsapproved for use thereunder. No vesting of Company Options will accelerate in connection with the closing of the Contemplated Transactions.
(bd) Except for options, rights, securities the outstanding Company Options set forth on Section 2.6(c) of the Company Disclosure Schedule and plans referred to in except as set forth on Section 3.3(a)2.6(d) of the Company Disclosure Schedule, there is no: (i) outstanding option subscription, option, call, warrant or right (whether or not currently exercisable) to acquire from the Company any shares of the capital stock or other securities of the CompanyCompany or any of its Subsidiaries; or (ii) outstanding security of the Company security, instrument or obligation that is or may become convertible into or exchangeable for any Company Shares.
(c) There are no outstanding (i) shares of the capital stock or other securities of the Company or any of the Company’s Subsidiaries convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, (ii) options, warrants, rights or other commitments or agreements to acquire from any of the Company’s its Subsidiaries, or that obligate any of the Company’s Subsidiaries to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, ; (iii) obligations of the Company to grant, extend stockholder rights plan (or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interest (including any voting debt) in, any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of the Subsidiaries of the Company, being plan commonly referred to collectively as a “Subsidiary Securitiespoison pill”) or (iv) other obligations by Contract under which the Company or any of its Subsidiaries is or may become obligated to make sell or otherwise issue any payments based on shares of its capital stock or any other securities; or (iv) condition or circumstance that is reasonably likely to give rise to or provide a basis for the price assertion of a claim by any Person to the effect that such Person is entitled to acquire or value receive any shares of capital stock or other securities of the Company or any Subsidiary Securitiesof its Subsidiaries. There are no Contracts outstanding or arrangements of any kind which obligate authorized stock appreciation, phantom stock, profit participation or other similar rights with respect to the Company or any of its Subsidiaries.
(e) All outstanding shares of Company Common Stock, Company Preferred Stock, Company Options and other securities of the Company’s Subsidiaries to repurchaseCompany have been issued and granted in material compliance with (i) all applicable securities laws and other applicable Law, redeem or otherwise acquire any outstanding Subsidiary Securitiesand (ii) all requirements set forth in applicable Contracts.
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Capitalization, Etc. (aA) The authorized capital stock of the Company consists of 30,000,000 200,000,000 shares of Company Shares Common Stock and 200,000 1,000,000 shares of preferred stock (“Preferred Shares”"PREFERRED SHARES"). As of July 305:00 p.m. Pacific Time on May 15, 2008: (i) 16,580,886 19,031,276 shares of Company Shares Common Stock were issued and 16,579,886 outstanding (including shares of Company Common Stock included in the Company Units), of which no shares were outstandingunvested or were subject to any repurchase rights, risk of forfeiture or other similar condition in favor of the Company; (ii) no Preferred Shares were issued or outstanding; (iii) 3,043,646 33,033,013 shares of Company Shares Common Stock were issuable upon exercise of Company Warrants that were issued and outstandingoutstanding (including shares of Company Common Stock issuable upon exercise of Company Warrants included in the Company Units); (iii)(Aiii) 1,613,535 3,108,618 shares of Company Shares Common Stock were issuable upon exercise of options issued pursuant to the Company’s 2007 Company Equity Incentive Plan and (B) 600,666 Company Shares were issuable upon exercise of options issued pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended; and (iv) 954,545 17,489,813 shares of Company Shares Common Stock were issuable upon conversion of the Company Debentures$128,200,000 aggregate principal amount of Convertible Notes. As of July 305:00 p.m. Pacific Time on May 15, 2008, 1,185,694 2,064,090 Company Shares 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’s 2007 Company Equity Incentive Plan, 431,797 Company Shares were reserved for future issuance pursuant to the Company’s Employee Stock Purchase Plan and 0 Company Shares were reserved for future issuance pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended. The Company has delivered or made available to Parent or Parent's legal advisor copies of each of (A) the Company Equity PlansPlan, which cover covers the stock options and restricted stock awards granted by the Company 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.
(bB) 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 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 and plans referred to in Section 3.3(a)2.3(a) and except as set forth in Part 2.3(d) of the Company Disclosure Schedule, as of the date of this Agreement, there is no: (i) outstanding option subscription, option, call, warrant or stock appreciation right or other right (whether or not currently exercisable) to acquire from the Company any shares of the capital stock or other securities of the Company or any Subsidiary of the Company; or (ii) outstanding security of the Company restricted stock award, restricted stock unit award, performance stock award or performance cash award; (iii) outstanding security, instrument or obligation that is or would reasonably be expected to become convertible into or exchangeable for any Company Shares.
(c) There are no outstanding (i) shares of the capital stock or other securities of any of the Company’s Subsidiaries convertible into Company or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, ; (iiiv) options, warrants, rights or other commitments or agreements to acquire from any of the Company’s Subsidiaries, or that obligate any of the Company’s Subsidiaries to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, (iii) obligations of contract under which the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interest (including any voting debt) in, any Subsidiary of the Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (v) to the items in clauses (i)Knowledge of the Company, (ii) and (iii), together with 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 Subsidiaries Company or other securities of the Company.
(F) All outstanding shares of capital stock, being referred to collectively as “Subsidiary Securities”) options, warrants, stock appreciation rights and other securities or (iv) other obligations by equity interests of 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 any other equity interests 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 each of the Company’s Subsidiaries 's Subsidiaries: (i) have been duly authorized and validly issued; (ii) are nonassessable and free of preemptive rights, with no obligation to repurchasecontribute additional capital; and (iii) except as set forth in Part 2.3(g) of the Company Disclosure Schedule, redeem or otherwise acquire are owned beneficially and of record by the Company, free and clear of any outstanding Subsidiary SecuritiesEncumbrances (other than Permitted Encumbrances).
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Capitalization, Etc. (a) The authorized capital stock of the Company consists of 30,000,000 35,000,000 Company Shares and 200,000 2,000,000 shares of preferred stock (“Preferred Shares”). As of July 3019, 20082005: (i) 16,580,886 14,978,324 Company Shares were issued and 16,579,886 outstanding, including 565,466 unvested restricted Company shares were outstandingShares; (ii) no Preferred Shares were outstanding; (iii) 3,043,646 Company Shares were 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 Shares were issuable upon exercise of options issued pursuant to the Company’s 1994 Non-Qualified Stock Option Plan, as amended; and (iv) 954,545 Company Shares were issuable upon conversion of the Company Debentures. As of July 30, 2008, 1,185,694 Company 200,000 Preferred Shares were reserved for future issuance upon exercise of the Company Rights; (iv) options to purchase 344,058 Company Shares were outstanding; and (v) 564,670 Company Shares remained available for future issuance or grant pursuant to the Company’s 2007 Equity Incentive Company Option Plan. Between July 19, 431,797 2005 and the date of this Agreement, (A) the Company has not issued any Company Shares other than in connection with the exercise of stock options outstanding on July 19, 2005, and (B) the Company has not granted any stock options. Except as set forth in this Section 3.3(a), at the close of business on July 19, 2005 no shares of capital stock of the Company were issued, reserved for future issuance pursuant to the Company’s Employee Stock Purchase Plan or outstanding. All issued and 0 outstanding Company Shares were reserved for future issuance pursuant to the Company’s 1994 Non-Qualified Stock Option Planare duly authorized, as amendedvalidly issued, fully paid and nonassessable. The Company has delivered or made available to Parent copies of each of (A1) the Company Equity PlansOption Plan, which cover covers all of the stock options and unvested restricted stock awards granted by the Company that are outstanding as of the date of this Agreement, and (B2) the forms of all stock option agreements and restricted stock award agreements evidencing such options and stock awards.
(b) Except for options, rights, securities and plans referred to in Section 3.3(a)Part 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 is no: 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) outstanding option or right to acquire from 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 or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company; Company or any of its Subsidiaries, (ii) outstanding security of obligating the Company that is convertible into or exchangeable for any Company Shares.
(c) There are no outstanding (i) securities of 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 Company’s right to receive from the Company or any of its Subsidiaries convertible into any economic benefit or exchangeable for shares right determined by reference to the economic benefits and rights accruing to holders of capital stock of, or other equity or voting interest interests in, any Subsidiary of the Company, (ii) options, warrants, rights Company or other commitments or agreements to acquire from any of the Company’s its Subsidiaries, or that obligate any of the Company’s Subsidiaries to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, .
(iiic) obligations Part 3.3(c) of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interest (including any voting debt) in, any Subsidiary Disclosure Schedule contains a schedule as of the date of this Agreement setting forth the number of shares underlying each outstanding stock option granted by the Company and the exercise price, vesting date (the items in clauses (i), (iior dates) and (iii), together with the capital expiration date of such stock option. There are no preemptive or similar rights held by any holder of the Subsidiaries any class of the Company, being referred to collectively as “Subsidiary Securities”) or (iv) other obligations by securities of the Company or any of its Subsidiaries with respect to make such securities. All outstanding unvested stock options granted by the Company will accelerate at or prior to the Effective Time, and all outstanding stock options granted by the Company will terminate at or prior to the Effective Time.
(d) Part 3.3(d) of the Company 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 payments based on the price or value of any Subsidiary Securities. There are no Contracts or arrangements of any kind which obligate any other securities of the Company’s .
(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 repurchasevote (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, redeem the Transaction Support Agreements and any other agreements or otherwise acquire any outstanding Subsidiary Securitiesarrangements 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.
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