Capitalization of the Company and its Subsidiaries (a) The authorized stock of the Company consists of 14,984,490 shares of Class A common stock, par value $.01 per share (the "Shares"), of which, as of September 30, 2000, 5,681,156 Shares were issued and outstanding, and 15,510 shares of Series A-1 convertible preferred stock, par value $.01 per share (the "Convertible Preferred Stock"), of which, as of September 30, 2000, 14,511 shares were outstanding. All of the outstanding Shares have been validly issued and are fully paid and nonassessable, and free of preemptive rights granted by the Company. As of September 30, 2000, (i) 1,515,338 were reserved for issuance upon the exercise of outstanding Company Stock Options issued pursuant to the Option Plans and other stock option plans, or agreements to which the Company or any of its subsidiaries is a party, (ii) 967,448 Shares were reserved for issuance upon the conversion of the outstanding Convertible Preferred Stock, and (iii) 123,370 Shares were reserved for issuance upon the exercise of the outstanding Warrants. Except as set forth in Section 3.2(a) of the Company Disclosure Schedule, since September 30, 2000, no shares of the Company's stock have been issued other than pursuant to Company Stock Options or other stock-based employee benefit plans of the Company and no options to acquire Shares have been granted other than pursuant to the Option Plans. Except as set forth above and in Section 3.2(a) of the Company Disclosure Schedule, as of the date hereof, there are issued, reserved for issuance, or outstanding (i) no shares of stock or other voting securities of the Company, (ii) no securities of the Company or its subsidiaries convertible into or exchangeable for shares of stock or voting securities of the Company, (iii) no options or other rights to acquire from the Company or its subsidiaries and, except for the Series B Preferred Stock issuable upon exercise of the Option or as described in Section 3.2(a) of the Company Disclosure Schedule, no obligations of the Company or its subsidiaries to issue any stock, voting securities or securities convertible into or exchangeable for stock or voting securities of the Company, (iv) no bonds, debentures, notes or other indebtedness or obligations of the Company or any of its subsidiaries entitling the holders thereof to have the right to vote (or which are convertible into, or exercisable or exchangeable for, securities entitling the holders thereof to have the right to vote) with the stockholders of the Company or any of its subsidiaries on any matter, and (v) no equity equivalent interests in the ownership or earnings of the Company or its subsidiaries or other similar rights (collectively "Company Securities"). As of the date hereof, except as set forth in Section 3.2(a) of the Company Disclosure Schedule, there are no outstanding obligations of the Company or its subsidiaries (absolute, contingent or otherwise) to repurchase, redeem or otherwise acquire any Company Securities. There are no Shares outstanding subject to rights of first refusal of the Company, nor are there any pre-emptive rights granted by the Company with respect to any Shares. Other than this Agreement, there are no stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party or by which it is bound relating to the voting or, except as set forth in Section 3.2(a) of the Company Disclosure Schedule, registration of any shares of stock of the Company.
(b) Except as set forth in Section 3.2(b) of the Company Disclosure Schedule, all of the outstanding stock of the Company's subsidiaries is owned by the Company, directly or indirectly, free and clear of any Lien (as defined below). There are no securities of the Company or its subsidiaries convertible into or exchangeable for, no options or other rights to acquire from the Company or its subsidiaries and no other contract, understanding, arrangement or obligation (whether or not contingent) providing for the issuance or sale, directly or indirectly, of any stock or other ownership interests in, or any other securities, of any subsidiary of, the Company. Except as set forth in Section 3.2(b) of the Company Disclosure Schedule, there are no outstanding contractual obligations of the Company or its subsidiaries to repurchase, redeem or otherwise acquire any outstanding shares of capital stock or other ownership interests in any subsidiary of the Company. For purposes of this Agreement, "Lien" means, with respect to any asset (including without limitation any security), any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset (including any restrictions on the right to vote or sell the same except as may be provided as a matter of law).
Capitalization of the Company (a) Schedule 4.29 sets forth a true and complete list of all of the issued and outstanding Equity Interests of the Company. Such Equity Interests of the Company have been duly authorized, are validly issued and are fully paid and, except to the extent otherwise provided under the law of the Company’s jurisdiction of formation, non-assessable and were issued in conformity with the Organizational Documents of the Company and all applicable contracts or Laws and were not issued in violation of, and are not subject to, any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of applicable Law, the Organizational Documents of the Company or any contract to which the Company is or was a party or by which it is or was otherwise bound. There are no certificates representing any of the Equity Interests of the Company. Seller has made available to Buyer true and complete copies of the Organizational Documents, minute books, membership interest certificate books, membership interest transfer books and equity ledgers of the Company to the extent the same are in existence.
(b) There are no rights or Contracts (including options, warrants, calls and preemptive rights) obligating the Company (A) to issue, sell, pledge, dispose of or encumber any Equity Interest of the Company, (B) to redeem, purchase or acquire in any manner any Equity Interests of the Company or (C) to make any dividend or distribution of any kind with respect to the Equity Interests of the Company (or to allow any participation in the profits or appreciation in value of the Company). There are no outstanding or authorized membership interest appreciation, phantom unit, profit participation, or similar rights affecting the Equity Interests of the Company. There are no agreements, instruments, proxies, judgments or decrees, whether written or oral, express or implied, other than this Agreement, relating to the voting of, sale, assignment, conveyance, transfer, delivery, right of first refusal, option or limitation on transfer of any Equity Interests of the Company.
Capitalization of Parent As of February 28, 1998, Parent's authorized capital stock consisted of (i) 40,000,000 shares of common stock, $1.25 par value per share of which (a) 23,607,047 shares were issued and outstanding, (b) 1,166,100 shares were issued and held in treasury (which does not include the shares reserved for issuance as set forth in clause (i)(c) below) and (c) 1,622,935 shares were reserved for issuance upon the exercise or conversion of options, warrants or convertible securities granted or issuable by Parent, and (ii) 10,000,000 shares of preferred stock, $.05 par value per share ("Parent Preferred Stock"), none of which are outstanding or designated except as provided in the next sentence. As of the date hereof, 400,000 shares are designated Preferred Stock, Cumulative Junior Participating Series C ("Parent Series C Preferred Stock") and are reserved for issuance in accordance with the Rights Agreement dated as of March 4, 1991, by and between Parent and Chas▇ ▇▇▇▇▇▇ ▇▇▇reholder Services, L.L.C., as Rights Agent ("Parent Rights Agreement"), pursuant to which Parent has issued rights ("Parent Rights") to purchase shares of Parent Series C Preferred Stock. Each outstanding share of Parent capital stock is, and all shares of Common Stock to be issued in connection with the Merger will be, duly authorized and validly issued, fully paid and nonassessable, and no outstanding share of Parent capital stock has been, and no shares of Common Stock to be issued in connection with the Merger will be issued in violation of any preemptive or similar rights. As of the date hereof, other than as set forth in the Parent SEC Documents, pursuant to the Parent Rights Agreement or in Section 3.3 to the Parent Disclosure Schedule, there are no outstanding subscriptions, options, warrants, puts, calls, agreements, understandings, claims or other commitments or rights of any type relating to the issuance, sale or transfer by Parent or any of its subsidiaries of any securities of Parent, nor are there outstanding any securities which are convertible into or exchangeable for any shares of capital stock of Parent, and Parent has no obligation of any kind to issue any additional securities or to pay for securities of Parent or any predecessor. Parent has no outstanding bonds, debentures, notes or other similar obligations the holders of which have the right to vote generally with holders of Parent Common Stock.
Capitalization and Related Matters (a) The Company has an authorized capital consisting of 230,000,000,000 shares of Common Stock and 25,000,000 shares in total of Series A-2 Convertible Preferred Stock, Series D Convertible Preferred Stock, Series C Preferred Stock and collectively with the Series E Preferred Stock, “Preferred Stock”, of which 13,489,918,237 shares of Common Stock and 3,000 shares of Preferred Stock are issued and outstanding as of the date hereof (after giving effect to the transactions contemplated hereby) as set forth on Schedule 3.2(a) hereto. All of the outstanding shares of the Company’s capital stock are, and immediately after the Closing will be, validly issued and outstanding, fully paid and non-assessable. No such stock (i) was issued in violation of the preemptive rights of any shareholder or (ii) is held as treasury stock. All of the outstanding capital stock of the Company was issued in compliance with all applicable federal and state securities or “blue sky” laws and regulations.
(b) Except as set forth on Schedule 3.2(b) hereto, there are no outstanding securities convertible into Common Stock or any other capital stock of the Company nor any rights to subscribe for or to purchase, or any options for the purchase of, or any agreements providing for the issuance (contingent or otherwise) of, or any calls, commitments or claims of any character relating to, such capital stock or securities convertible into such capital stock (collectively, “Securities Rights”). Except as set forth on Schedule 3.2 hereto the Company (i) is not subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any of its capital stock; or (ii) has no liability for dividends or other distributions declared or accrued, but unpaid, with respect to any capital stock.
(c) Except as set forth on Schedule 3.2(c) hereto, the Company is not a party to any agreement, understanding or arrangement, direct or indirect, relating to any class or series of the Company’s capital stock, including, without limitation, any voting agreement, restriction on resale, shareholder agreement or registration rights agreement.
Capitalization and Ownership (a) Section 3.4(a) of the Seller Disclosure Schedule sets forth an accurate and complete list of all the issued and outstanding shares of the capital stock of the Acquired Company. Section 3.4(a) of the Seller Disclosure Schedule includes an up-to-date excerpt from the commercial register and no material filings to the commercial register have been made, or should have been made, that have not been registered. The Shares represent all of the issued and outstanding shares of the capital stock of the Acquired Company. The Share Selling Affiliate is the sole record holder and beneficial owner of all of the Shares, free and clear of all Encumbrances, in the respective amounts set forth in Section 3.4(a) of the Seller Disclosure Schedule. Upon payment in full of the Purchase Price, good and valid title to the Shares will pass to the Purchaser (or its Designated Affiliate), free and clear of any Encumbrances, and with no restrictions on the voting rights or other incidents of record and beneficial ownership of such Shares. All of the Shares are duly authorized, validly issued, fully paid and nonassessable. There are no Contracts to which the Share Selling Affiliate or any other Person, is a party or bound with respect to the voting (including voting trusts or proxies) of the Shares. Other than the Shares, there are no outstanding or authorized options, warrants, rights, agreements or commitments to which the Acquired Company is a party or which are binding upon the Acquired Company providing for the issuance or redemption of any shares of the Acquired Company’s capital stock.
(b) The Acquired Company does not own or have any rights to acquire, directly or indirectly, any capital stock or other equity interests of any Person.
(c) No bankruptcy, insolvency or dissolution proceedings are applied for, pending or, to the Seller’s Knowledge, threatened with respect to the Acquired Company or the Share Selling Affiliate. Neither the Acquired Company nor the Share Selling Affiliate is required under the Laws of its jurisdiction of organization to file for bankruptcy, insolvency or dissolution.