Target Capital Structure. (a) The authorized capital stock of Target consists of 2,500,000 shares of Target Common Stock and 300,000 shares of Target Preferred Stock, of which 272,667 shares are designated as Series A Preferred Stock. As of the date of this Agreement, there are (i) 1,066,000 shares of Target Common Stock issued and outstanding, all of which are validly issued, fully paid and nonassessable; (ii) Target Warrants to purchase up to 47,248 shares of Target Common Stock; (iii) 47,248 shares of Target Common Stock reserved for future issuance upon exercise of the Target Warrants; (iv) Target Convertible Notes convertible into up to 197,108 shares of Target Common Stock upon the consummation of the Merger; (v) 197,108 shares of Target Common Stock reserved for issuance upon conversion of Target Convertible Notes; (vi) 203,050 shares of Target Common Stock reserved for future issuance pursuant to Target Options granted and outstanding under the Target Option Plan or otherwise; (vii) 9,855 shares of Common Stock reserved for issuance in cancellation of the Professional Obligations; and (viii) no shares of Target Preferred Stock are issued and outstanding. The issued and outstanding shares of Target Common Stock are held of record by the stockholders of Target as set forth and identified in the stockholder list attached as Schedule 3.2(a) to the Target Disclosure Schedule. The issued and outstanding Target Options are held of record by the option holders as set forth and identified in Schedule 2.1(d) of the Target Disclosure Schedules. The issued and outstanding Target Warrants are held of record by the warrantholders as set forth and identified in Schedule 2.1(g) of the Target Disclosure Schedule. The issued and outstanding Target Convertible Notes are held of record by the noteholders as set forth and identified in Schedule 2.1(e) of the Target Disclosure Schedule. The Professional Obligations are owed to the organizations set forth in Schedule 2.1(f) of the Target Disclosure Schedule. All shares of Target Common Stock subject to issuance as specified above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, shall be duly authorized, validly issued, fully paid and nonassessable. All shares of Target Common Stock subject to issuance upon the exercise of Target Options and Target Warrants or upon the conversion of Target Convertible Notes, upon issuance on the terms and conditions specified in the instrument pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. None of the issued and outstanding shares of Target Common Stock are subject to contractual rights to repurchase upon the termination of the employment of the holder thereof with Target or its affiliates. All outstanding shares of Target Common Stock and outstanding Target Options, Target Warrants and Target Convertible Notes (collectively "TARGET SECURITIES") were issued in compliance with applicable federal and state securities laws. Except as set forth in the Target Disclosure Schedule, there are no obligations, contingent or otherwise, of Target to repurchase, redeem or otherwise acquire any shares of Target Common Stock or make any investment (in the form of a loan, capital contribution or otherwise) in any other entity. An updated Schedule 3.2(a) reflecting changes permitted by this Agreement in the capitalization of Target between the date hereof and the Effective Time shall be delivered by Target to Acquiror on the Closing Date. (b) Except as set forth in this Section 3.2, there are no equity securities of any class or series of Target, or any security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding. Except as set forth in this Section 3.2, there are no options, warrants, equity securities, calls, rights, commitments or agreements of any character to which Target is a party or by which it is bound obligating Target to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock of Target or obligating Target to grant, extend, accelerate the vesting of or enter into any such option, warrant, equity security, call, right, commitment or agreement. Except as provided in this Agreement and the other Transaction Documents (as defined in Section 3.3(a)) or any transaction contemplated hereby or thereby, there are no voting trusts, proxies or other agreements or understandings with respect to the voting of the shares of capital stock of Target. (c) All Target Options have been issued in accordance with the terms of the Target Option Plan and pursuant to the standard forms of option agreement previously provided to Acquiror or its representatives. Except as contemplated by this Agreement, no option will by its terms require an adjustment in connection with the Merger. Neither the consummation of transactions contemplated by this Agreement or the other Transaction Documents nor any action taken by Target in connection with such transactions will result in (i) any acceleration of vesting in favor of any optionee under any Target Option; (ii) any additional benefits for any optionee under any Target Option; or (iii) the inability of Acquiror after the Effective Date to exercise any right or benefit held by Target prior to the Effective Time with respect to any Target Option assumed by Acquiror, including, without limitation, the right to repurchase an optionee's unvested shares on termination of such optionee's employment. The assumption by Acquiror of Target Options in accordance with Section 6.5 hereunder will not (i) give the optionees additional benefits which they did not have under their options prior to such assumption (after taking into account the existing provisions of the options, such as their respective exercise prices and vesting schedules) and (ii) constitute a breach of the Target Plan or any agreement entered into pursuant to such plan.
Appears in 1 contract
Sources: Merger Agreement (Yahoo Inc)
Target Capital Structure. (a) The authorized capital stock of Target consists of 2,500,000 15,000,000 shares of Target Common Stock and 300,000 3,945,106 shares of Target Preferred Stock, of which 272,667 1,697,915 shares are designated as Series A Preferred Stock, and 2,247,191 shares are designated as Series B Preferred Stock. As of the date of this Agreement, there are (i) 1,066,000 2,894,016 shares of Target Common Stock issued and outstanding, all of which are validly issued, fully paid and nonassessable; nonassessable and 29,042 of which are subject to repurchase rights under the Target Option Plan and the agreements thereunder, (ii) 1,697,915 shares of Series A Preferred Stock and 1,932,585 shares of Series B Preferred Stock issued and outstanding (collectively, the "TARGET PREFERRED STOCK") all of which are validly issued, fully paid and nonassessable, and all of which are convertible into Target Warrants Common Stock on a one share for one share basis, (iii) warrants to purchase up to 47,248 69,522 shares of Target Common Stock; Preferred Stock (iiicollectively, the "WARRANT SHARES");
(iv) 47,248 3,700,022 shares of Target Common Stock reserved for future issuance upon exercise conversion of the Target Warrants; (iv) Target Convertible Notes convertible into up to 197,108 shares of Target Common Preferred Stock upon and the consummation of the MergerWarrant Shares; (v) 197,108 shares of Target Common Stock reserved for issuance upon conversion of Target Convertible Notes; (vi) 203,050 541,478 shares of Target Common Stock reserved for future issuance pursuant to Target Options granted and outstanding under the Target Option Plan or otherwisePlan; and (viivi) 9,855 537,836 shares of Target Common Stock reserved for issuance upon exercise of options available to be granted in cancellation of the Professional Obligations; and (viii) no shares of future under the Target Preferred Stock are issued and outstandingOption Plan. The issued and outstanding shares of Target Common Stock and of each series of Target Preferred Stock are held of record by the stockholders shareholders of Target as set forth and identified in the stockholder shareholder list attached as Schedule 3.2(a) to the Target Disclosure Schedule. The issued and outstanding Target Options are held of record by the option holders as set forth and identified in Schedule 2.1(d) of the Target Disclosure Schedulesoption holder list provided to Acquiror or its representatives. The issued and outstanding Target Warrants are held of record by the warrantholders as set forth and identified in Schedule 2.1(g) of the Target Disclosure Schedule. The issued and outstanding Target Convertible Notes are held of record by the noteholders as set forth and identified in Schedule 2.1(e) of the Target Disclosure Schedule. The Professional Obligations are owed warrantholder list provided to the organizations set forth in Schedule 2.1(f) of the Target Disclosure ScheduleAcquiror or its representatives. All shares of Target Common Stock and Target Preferred Stock subject to issuance as specified above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, shall be duly authorized, validly issued, fully paid and nonassessable. All outstanding shares of Target Common Stock, Target Preferred Stock subject to issuance upon the exercise of and outstanding Target Options and Target Warrants or upon the conversion of Target Convertible Notes, upon issuance on the terms and conditions specified in the instrument pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. None of the issued and outstanding shares of Target Common Stock are subject to contractual rights to repurchase upon the termination of the employment of the holder thereof with Target or its affiliates. All outstanding shares of Target Common Stock and outstanding Target Options, Target Warrants and Target Convertible Notes (collectively "TARGET SECURITIES") were issued in compliance with applicable federal and state securities laws. Except as set forth in the Target Disclosure Schedule, there are no obligations, contingent or otherwise, of Target to repurchase, redeem or otherwise acquire any shares of Target Common Stock or Target Preferred Stock or make any investment Investment (in the form of a loan, capital contribution or otherwise) in any other entity. An updated Schedule 3.2(a) reflecting changes permitted by this Agreement in the capitalization of Target between the date hereof and the Effective Time shall be delivered by Target to Acquiror on the Closing Date.
(b) Except as set forth in this Section 3.2, there are no equity securities of any class or series of Target, or any security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding. Except as set forth in this Section 3.2, there are no options, warrants, equity securities, calls, rights, commitments or agreements of any character to which Target is a party or by which it is bound obligating Target to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock of Target or obligating Target to grant, extend, accelerate the vesting of or enter into any such option, warrant, equity security, call, right, commitment or agreement. Except as provided in this Agreement and the other Transaction Documents (as defined in Section 3.3(a)) or any transaction contemplated hereby or thereby, there are no voting trusts, proxies or other agreements or understandings with respect to the voting of the shares of capital stock of Target.
(c) All Target Options have been issued in accordance with the terms of the Target Option Plan and pursuant to the standard forms of option agreement previously provided to Acquiror or its representatives. Except as contemplated by this Agreement, no No option will by its terms require an adjustment in connection with the Merger. Neither the consummation of transactions contemplated by this Agreement or the other Transaction Documents (as defined in Section 3.3(a)) nor any action taken by Target in connection with such transactions will result in (i) any acceleration of vesting in favor of any optionee under any Target Option; (ii) any additional benefits for any optionee under any Target Option; or (iii) the inability of Acquiror after the Effective Date to exercise any right or benefit held by Target prior to the Effective Time Date with respect to any Target Option assumed by Acquiror, including, without limitation, the right to repurchase an optionee's unvested shares on termination of such optionee's employment. The assumption by Acquiror of Target Options in accordance with Section 6.5 hereunder will not (i) give the optionees additional benefits which they did not have under their options prior to such assumption (after taking into account the existing provisions of the options, such as their respective exercise prices and vesting schedules) and (ii) constitute a breach of the Target Plan or any agreement entered into pursuant to such plan.
Appears in 1 contract
Sources: Merger Agreement (Yahoo Inc)
Target Capital Structure. (a) The authorized capital stock of Target consists of 2,500,000 20,000,000 shares of Target Common Stock and 300,000 10,000,000 shares of Preferred Stock, $0.001 par value (the “Target Preferred Stock), of which 272,667 7,500,000 shares are designated as Series A Preferred Stock. As of the date of this Agreement, there are are: (i) 1,066,000 7,060,000 shares of Target Common Stock issued and outstanding, all of which are validly issued, fully paid and nonassessablenonassessable and 3,808,441 of which are subject to repurchase rights under the Target Stock Plan or related agreements as described in the Target Disclosure Schedule; (ii) Target Warrants to purchase up to 47,248 6,622,698 shares of Series A Preferred Stock issued and outstanding, all of which are validly issued, fully paid and nonassessable, and all of which are convertible into Target Common StockStock on a one share for one share basis; (iii) 47,248 450,000 shares of Target Series A Stock reserved for future issuance upon exercise of warrants to purchase Series A Stock, (iv) 10,000,000 shares of Target Common Stock reserved for future issuance upon exercise conversion of the Target Warrants; (iv) Target Convertible Notes convertible into up to 197,108 shares of Target Common Stock upon the consummation of the MergerPreferred Stock; (v) 197,108 shares of Target Common Stock reserved for issuance upon conversion of Target Convertible Notes; (vi) 203,050 820,000 shares of Target Common Stock reserved for future issuance pursuant to Target Options granted and outstanding under the Target Option Plan or otherwiseStock Plan; and (viivi) 9,855 3,080,000 shares of Target Common Stock available and reserved for issuance upon exercise of options or pursuant to awards to be granted in cancellation the future under the Target Stock Plan. As of the Professional Obligations; and (viii) no shares of Target Preferred Stock are issued and outstanding. The date hereof, the issued and outstanding shares of Target Common Stock and Target Preferred Stock are held of record by the stockholders of Target as set forth and identified in the stockholder list attached as Schedule 3.2(a3.3(a) to the Target Disclosure Schedule. The Prior to the Effective Time, all outstanding shares of Target Preferred Stock shall have converted into Target Common Stock. As of the date hereof, the issued and outstanding Target Options are held of record by the option holders as set forth and identified in on Schedule 2.1(d) of the Target Disclosure Schedules3.3(a). The issued and outstanding warrants to acquire Target Warrants Common Stock and Target Preferred Stock are held of record by the warrantholders as set forth and identified in on Schedule 2.1(g3.3(a) of (the “Target Disclosure Schedule. The issued and outstanding Target Convertible Notes are held of record by the noteholders as set forth and identified in Schedule 2.1(e) of the Target Disclosure Schedule. The Professional Obligations are owed to the organizations set forth in Schedule 2.1(f) of the Target Disclosure ScheduleWarrants”). All shares of Target Common Stock and Target Preferred Stock subject to issuance as specified above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, shall be duly authorized, validly issued, fully paid and nonassessable. All shares of Target Common Stock subject to issuance issuable upon the exercise of Target Options and Target Warrants or upon the conversion of Target Convertible NotesOptions, upon issuance on the terms and conditions specified in the instrument pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. None Except as otherwise set forth in Schedule 3.3(a), none of the issued and outstanding shares of Target Common Stock are subject to contractual rights to repurchase upon the termination of the employment or consulting services of the holder thereof with Target or its affiliates. All outstanding shares of Target Common Stock and Target Preferred Stock and outstanding Target Options, Options and Target Warrants and Target Convertible Notes (collectively "TARGET SECURITIES"“Target Securities”) were issued in compliance with applicable federal and state securities laws. Except as set forth in the Target Disclosure Schedule, there There are no obligations, contingent or otherwise, of Target to repurchase, redeem or otherwise acquire any shares of Target Common Stock or Target Preferred Stock or make any investment (in the form of a loan, capital contribution or otherwise) in any other entity. An updated Schedule 3.2(a3.3(a) reflecting changes changes, if any, permitted by this Agreement in the capitalization of Target between the date hereof and the Effective Time shall be delivered by Target to Acquiror on the Closing Date.
(b) Except as set forth in this Section 3.23.3, there are no equity securities of any class or series of Target, or any security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding. Except as set forth in this Section 3.23.3, there are no options, warrants, equity securities, calls, rights, commitments or agreements of any character to which Target is a party or by which it is bound obligating Target to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock of Target or (except as set forth in the stock restriction agreements, stock option agreements and the Investor Rights Agreements listed in the Target Disclosure Schedule) obligating Target to grant, extend, accelerate the vesting of or enter into any such option, warrant, equity security, call, right, commitment or agreement. Target is not in discussion, formal or informal, with any person or entity regarding the issuance of any form of additional Target equity that has not been issued or committed to prior to the date of this Agreement. Except as provided in this Agreement and the other Transaction Documents (as defined in Section 3.3(a3.4(a)) or any transaction contemplated hereby or thereby, there are no voting trusts, proxies or other agreements or understandings with respect to the voting of the shares of capital stock of Target.
(c) All Other than as set forth on Schedule 3.3(a), all Target Options have been issued in accordance with the terms of the Target Option Stock Plan and pursuant to the standard forms of option agreement previously provided to Acquiror or its representatives. Except Such agreements and instruments have not been amended, modified or supplemented, and there are no agreements to amend, modify or supplement such agreements or instruments in any case from the form made available to Acquiror. The terms of the Target Stock Plan, including Section 11(c) thereof, permit the cancellation of the Target Stock Options as contemplated by provided in this Agreement, no option will by its terms require an adjustment in connection with without the Merger. Neither consent or approval of the consummation holders of transactions contemplated by this Agreement or the other Transaction Documents nor any action taken by Target in connection with such transactions will result in (i) any acceleration of vesting in favor of any optionee under any Target Option; (ii) any additional benefits for any optionee under any Target Option; or (iii) the inability of Acquiror after the Effective Date to exercise any right or benefit held by Target prior to the Effective Time with respect to any Target Option assumed by Acquiror, including, without limitationsecurities, the right to repurchase an optionee's unvested shares on termination of such optionee's employment. The assumption by Acquiror of Target Options in accordance with Section 6.5 hereunder will not (i) give the optionees additional benefits which they did not have under their options prior to such assumption (after taking into account the existing provisions of the optionsstockholders, such as their respective exercise prices and vesting schedules) and (ii) constitute a breach of the Target Plan or any agreement entered into pursuant to such planotherwise.
Appears in 1 contract
Sources: Merger Agreement (Deltagen Inc)
Target Capital Structure. (a) The authorized capital stock of Target consists of 2,500,000 10,000,000 shares of Target Common Stock and 300,000 5,000,000 shares of Target Preferred Stock, of which 272,667 4,467,200 shares are designated as Series A Preferred Stock. As of the date of this Agreement, there are are: (i) 1,066,000 2,863,176 shares of Target Common Stock issued and outstanding, all of which are validly issued, fully paid and nonassessablenonassessable and 2,130,878 of which are subject to repurchase rights under the Target Stock Plan or related agreements as described in the Target Disclosure Schedule; (ii) Target Warrants to purchase up to 47,248 4,452,200 shares of Series A Preferred Stock issued and outstanding (collectively, the "Target Preferred Stock"), all of which are validly issued, fully paid and nonassessable, and all of which are convertible into Target Common StockStock on a one share for one share basis; (iii) 47,248 4,452,200 shares of Target Common Stock reserved for future issuance upon exercise conversion of the Target WarrantsPreferred Stock; (iv) Target Convertible Notes convertible into up to 197,108 shares of Target Common Stock upon the consummation of the Merger; (v) 197,108 shares of Target Common Stock reserved for issuance upon conversion of Target Convertible Notes; (vi) 203,050 233,398 shares of Target Common Stock reserved for future issuance pursuant to Target Options granted and outstanding under the Target Option Plan or otherwiseStock Plan; and (viiv) 9,855 945,012 shares of Target Common Stock available and reserved for issuance upon exercise of options or pursuant to awards to be granted in cancellation of the Professional Obligations; and (viii) no shares of future under the Target Preferred Stock are issued and outstandingPlan. The issued and outstanding shares of Target Common Stock and Target Preferred Stock are held of record by the stockholders of Target as set forth and identified in the stockholder list attached as Schedule 3.2(a3.2
(a) to the Target Disclosure Schedule. The issued and outstanding Target Options are held of record by the option holders as set forth and identified in Schedule 2.1(d) of the Target Disclosure Schedules. The issued and outstanding Target Warrants are held of record by the warrantholders as set forth and identified in Schedule 2.1(g) of the Target Disclosure Schedule. The issued and outstanding Target Convertible Notes are held of record by the noteholders as set forth and identified in Schedule 2.1(e) of the Target Disclosure Schedule. The Professional Obligations are owed option holder list provided to the organizations set forth in Schedule 2.1(f) of the Target Disclosure ScheduleAcquiror or its representatives. All shares of Target Common Stock and Target Preferred Stock subject to issuance as specified above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, shall be duly authorized, validly issued, fully paid and nonassessable. All shares of Target Common Stock subject to issuance issuable upon the exercise of Target Options and Target Warrants or upon the conversion of Target Convertible NotesOptions, upon issuance on the terms and conditions specified in the instrument pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. None Except as otherwise set forth in Schedule 3.2(a), none of the issued and outstanding shares of Target Common Stock are subject to contractual rights to repurchase upon the termination of the employment or consulting services of the holder thereof with Target or its affiliates. All outstanding shares of Target Common Stock and Target Preferred Stock and outstanding Target Options, Target Warrants and Target Convertible Notes Options (collectively "TARGET SECURITIESTarget Securities") were issued in compliance with applicable federal and state securities laws. Except as set forth for the redemption rights of the Target Preferred Stock provided for in the Target Disclosure ScheduleCertificate of Incorporation, there are no obligations, contingent or otherwise, of Target to repurchase, redeem or otherwise acquire any shares of Target Common Stock or Target Preferred Stock or make any investment (in the form of a loan, capital contribution or otherwise) in any other entity. An updated Schedule 3.2(a) reflecting changes changes, if any, permitted by this Agreement in the capitalization of Target between the date hereof and the Effective Time shall be delivered by Target to Acquiror on the Closing Date.
(b) Except as set forth in this Section 3.2, there are no equity securities of any class or series of Target, or any security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding. Except as set forth in this Section 3.2, there are no options, warrants, equity securities, calls, rights, commitments or agreements of any character to which Target is a party or by which it is bound obligating Target to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock of Target or (except as set forth in the stock restriction agreements, stock option agreements and the Investor Rights Agreements listed in Schedule 3.2) obligating Target to grant, extend, accelerate the vesting of or enter into any such option, warrant, equity security, call, right, commitment or agreement. Target is not in discussion, formal or informal, with any person or entity regarding the issuance of any form of additional Target equity that has not been issued or committed to prior to the date of this Agreement. Except as provided in this Agreement and the other Transaction Documents (as defined in Section 3.3(a)) or 3.3(a))or any transaction contemplated hereby or thereby, there are no voting trusts, proxies or other agreements or understandings with respect to the voting of the shares of capital stock of Target.
(c) All Target Options have been issued in accordance with the terms of the Target Option Stock Plan and pursuant to the standard forms of option agreement previously provided to Acquiror or its representatives. Except as contemplated by this Agreementset forth in Schedule 3.2, no option will by its terms require an adjustment in connection with the Merger. Neither neither the consummation of transactions contemplated by this Agreement or the other Transaction Documents nor any action taken by Target in connection with such transactions will result in (i) any acceleration of vesting in favor of any optionee under any Target Option; (ii) any acceleration of vesting in favor of any stockholder under the Target Stock Plan whose shares are subject to a right of repurchase on behalf of the Company; (iii) any additional benefits for any optionee under any Target Option; or (iiiiv) the inability of Acquiror or Target after the Effective Date Time to exercise any right or benefit held by Target prior to the Effective Time with respect to any Target Option assumed by AcquirorAcquiror or any stock awards under the Target Stock Plan, including, without limitation, the right to repurchase an optionee's or stockholder's unvested shares on termination of such optionee's or stockholder's employment. The assumption by Acquiror of Target Options in accordance with Section 6.5 hereunder will not (i) give the optionees additional benefits which they did not have under their options prior to such assumption (after taking into account the existing provisions of the options, such as their respective exercise prices and vesting schedules) and (ii) constitute a breach of the Target Stock Plan or any agreement entered into pursuant to such plan.
Appears in 1 contract
Target Capital Structure. (a) The authorized and issued capital stock of Target consists is as set forth on Schedule 3.2. As of 2,500,000 the date of this Agreement, all of the shares of Target Common Stock issued and 300,000 outstanding are validly issued, fully paid and nonassessable, all of the shares of Preferred Stock issued and outstanding (collectively, the "TARGET PREFERRED STOCK") are validly issued, fully paid and nonassessable, and all of the Target Preferred StockStock is which are convertible into Target Common Stock with no liquidation preference, dividend payments, or other additional consideration accruing to the Target Preferred Stock by virtue of which 272,667 shares are designated as Series A Preferred Stockthis transaction. As of the date of this Agreement, there are (i) 1,066,000 warrants to purchase up to 191,327 shares of Target Common Stock issued and outstanding(collectively, all of which are validly issued, fully paid and nonassessablethe "TARGET WARRANTS"); (ii) Target Warrants to purchase up to 47,248 shares of Target Common Stock; (iii) 47,248 6,857,994 shares of Target Common Stock reserved for future issuance upon conversion of the Target Preferred Stock and upon exercise of the Target Warrants; (iviii) Target Convertible Notes convertible into up to 197,108 shares of Target Common Stock upon the consummation of the Merger; (v) 197,108 shares of Target Common Stock reserved for issuance upon conversion of Target Convertible Notes; (vi) 203,050 1,069,019 shares of Target Common Stock reserved for future issuance pursuant to Target Options granted and outstanding under the Target Option Plan or otherwisePlans; and (viiiv) 9,855 80,000 shares of Target Common Stock reserved for issuance upon exercise of options available to be granted in cancellation of the Professional Obligations; and (viii) future under the Target Option Plans. There is no accrued or declared by unpaid dividend or other amount payable on any shares of Target Preferred Stock are issued and outstandingfollowing its conversion into Target Common Stock or Target Common Stock. All shares of Target Preferred Stock will be converted into Target Common Stock prior to the Closing. The issued and outstanding shares of Target Common Stock and of each series of Target Preferred Stock are held of record by the stockholders of Target as set forth and identified in the stockholder list attached as Schedule 3.2(a) to of the Target Disclosure Schedule. The issued and outstanding Target Options are held of record by the option holders as set forth and identified in Schedule 2.1(d) of the option holder list provided to Acquiror or its representatives. No Target Disclosure SchedulesCommon Stock or Target Preferred Stock is subject to repurchase by Target or its Subsidiaries in the event the holder thereof ceases to be employed by Target or its Subsidiaries. The issued and outstanding Target Warrants are held of record by the warrantholders as set forth and identified in Schedule 2.1(g) of the Target Disclosure Schedule. The issued and outstanding Target Convertible Notes are held of record by the noteholders as set forth and identified in Schedule 2.1(e) of the Target Disclosure Schedule. The Professional Obligations are owed warrantholder list provided to the organizations set forth in Schedule 2.1(f) of the Target Disclosure ScheduleAcquiror or its representatives. All shares of Target Common Stock and Target Preferred Stock subject to issuance as specified above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, shall be duly authorized, validly issued, fully paid and nonassessable. All shares of Target Common Stock subject to issuance upon the exercise of Target Options and Target Warrants or upon the conversion of Target Convertible NotesWarrants, upon issuance on the terms and conditions specified in the instrument pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. None of the issued and outstanding shares of Target Common Stock are subject to contractual rights to repurchase upon the termination of the employment of the holder thereof with Target or its affiliates. All outstanding shares of Target Common Stock, Target Preferred Stock and outstanding Target Options, Options and Target Warrants and Target Convertible Notes (collectively "TARGET SECURITIES") were issued in compliance with applicable federal and state securities laws. Except as set forth in the Target Disclosure Schedule, there are no obligations, contingent or otherwise, of Target or its Subsidiaries to repurchase, redeem or otherwise acquire any shares of Target Common Stock or Target Preferred Stock or make any investment (in the form of a loan, capital contribution or otherwise) in any other entity. An updated Schedule 3.2(a) of the Target Disclosure Schedule reflecting changes permitted by this Agreement in the capitalization of Target and its Subsidiaries between the date hereof and the Effective Time shall be delivered by Target to Acquiror on the Closing Date.
(b) Except as set forth in this Section 3.2, there are no equity securities of any class or series of TargetTarget or its Subsidiaries, or any security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding. Except as set forth in this Section 3.2, there are no options, warrants, equity securities, calls, rights, commitments or agreements of any character to which Target or its Subsidiaries is a party or by which it is bound obligating Target or its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock of Target or its Subsidiaries or obligating Target or its Subsidiaries to grant, extend, accelerate the vesting of or enter into any such option, warrant, equity security, call, right, commitment or agreement. Neither Target nor its Subsidiaries is in discussion, formal or informal, with any person or entity regarding the issuance of any form of additional equity of Target or its Subsidiaries that has not been issued or committed to prior to the date of this Agreement. Except as provided in this Agreement and the other Transaction Documents (as defined in Section 3.3(a)) or any transaction contemplated hereby or thereby, thereby there are no voting trusts, proxies or other agreements or understandings with respect to the voting of the shares of capital stock of TargetTarget or its Subsidiaries (i) to which the Company is a party, or (ii) to the knowledge of the Company, otherwise.
(c) All Target Options have been issued in accordance with the terms of the Target Option Plan Plans and pursuant to the standard forms of option agreement previously provided to Acquiror or its representatives. Except as contemplated by this AgreementNeither Target nor its Subsidiaries has plans, no arrangements or commitments of any kind to alter the terms of any Target Options, including without limitation any stock option repricing or other exchange programs. No option will by its terms require an adjustment in connection with the Merger. Neither the consummation of the transactions contemplated by this Agreement or the other Transaction Documents nor any action taken by Target or its Subsidiaries in connection with such transactions will result in (i) any acceleration of vesting in favor of any optionee under any Target Option; (ii) any additional benefits for any optionee under any Target Option; or (iii) the inability of Acquiror after the Effective Date to exercise any right or benefit held by Target or its Subsidiaries prior to the Effective Time with respect to any Target Option assumed by Acquiror, including, without limitation, the right to repurchase an optionee's unvested shares on termination of such optionee's employment. The assumption by Acquiror of Target Options in accordance with Section 6.5 7.9 hereunder will not (i) give the optionees additional benefits which they did not have under their options prior to such assumption (after taking into account the existing provisions of the options, such as their respective exercise prices and vesting schedules) and or (ii) constitute a breach of the Target Plan Option Plans or any agreement entered into pursuant to such planplans.
Appears in 1 contract
Target Capital Structure. (a) The authorized capital stock of Target consists of 2,500,000 8,950,000 shares of Target Common Stock and 300,000 Stock, 50,000 shares of Target Class B Common Stock, $0.01 par value per share ("TARGET CLASS B COMMON STOCK"), and 2,000,000 shares of Preferred Stock, of which 272,667 1,500,000 shares are designated as Series A Cumulative Convertible Preferred Stock. As of the date of this Agreement, there are (i) 1,066,000 4,241,883 shares of Target Common Stock issued and outstanding, all of which are validly issued, fully paid and nonassessable; nonassessable and none of which are subject to repurchase rights, (ii) no shares of Target Warrants to purchase up to 47,248 Class B Common Stock issued or outstanding, (iii) 1,276,958.332 shares of Series A Preferred Stock issued and outstanding, all of which are validly issued, fully paid and nonassessable, and each share of which is convertible into 1.2 shares of Target Common Stock; , (iii) 47,248 warrants to p! urchase up to 632,610.671 shares of Target Common Stock (collectively, the "TARGET WARRANTS"); (iv) 1,532,349.998 shares of Target Common Stock reserved for future issuance upon exercise conversion of the Target Warrants; (iv) Target Convertible Notes convertible into up to 197,108 shares of Target Common Stock upon the consummation of the MergerPreferred Stock; (v) 197,108 shares of Target Common Stock reserved for issuance upon conversion of Target Convertible Notes; (vi) 203,050 774,952 shares of Target Common Stock reserved for future issuance pursuant to Target Options granted and outstanding under the Target Option Plan or otherwisePlan; and (viivi) 9,855 225,048 shares of Target Common Stock reserved for issuance upon exercise of options available to be granted in cancellation of the Professional Obligations; and (viii) no shares of future under the Target Preferred Stock are issued and outstandingOption Plan. The issued and outstanding shares of Target Common Stock and of Target Preferred Stock are held of record by the stockholders shareholders of Target as set forth and identified in the stockholder shareholder list attached as Schedule 3.2(a3.2
(a) to the Target Disclosure Schedule. The issued and outstanding Target Options are held of record by the option holders as set forth and identified in Schedule 2.1(d) of the Target Disclosure Schedules. option holder list provided to Acquiror or its representative! s. The issued and outstanding Target Warrants are held of record by the warrantholders as set forth and identified in Schedule 2.1(g) of the Target Disclosure Schedule. The issued and outstanding Target Convertible Notes are held of record by the noteholders as set forth and identified in Schedule 2.1(e) of the Target Disclosure Schedule. The Professional Obligations are owed warrantholder list provided to the organizations set forth in Schedule 2.1(f) of the Target Disclosure ScheduleAcquiror or its representatives. All shares of Target Common Stock and Target Preferred Stock subject to issuance as specified above, upon issuance on the terms and conditions (including payment) specified in the instruments pursuant to which they are issuable, shall be duly authorized, validly issued, fully paid and nonassessable. All shares of Target Common Stock subject to issuance upon the exercise of Target Options and Target Warrants or upon the conversion of Target Convertible NotesWarrants, upon issuance on the terms and conditions (including payment) specified in the instrument pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. None of the issued and outstanding shares of Target Common Stock are subject to contractual rights to repurchase upon the termination of the employment of the holder thereof with Target or its affiliates. All outstanding shares of Target Common Stock, Target Preferred Stock and outstanding Target Options, Options and Target Warrants and Target Convertible Notes (collectively "blquote TARGET SECURITIES") were issued in compliance with applicable federal and state securities laws. Except as set forth in the Target Disclosure Schedule, there are no obligations, contingent or otherwise, of Target to repurchase, redeem or otherwise acquire any shares of Target Common Stock or Target Preferred Stock or make any investment (in the form of a loan, capital contribution or otherwise) in any other entity. An updated Schedule 3.2(a) reflecting changes permitted by this Agreement in the capitalization of Target between the date hereof and the Effective Time shall be delivered by Target to Acquiror on the Closing Date.
(b) Except as set forth in this Section 3.2, there are no equity securities of any class or series of Target, or any security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding. Except as set forth in this Section 3.2, there are no options, warrants, equity securities, calls, rights, commitments or agreements of any character to which Target is a party or by which it is bound obligating Target to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock of Target or obligating Target to grant, extend, accelerate the vesting of or enter into any such option, warrant, equity security, call, right, commitment or agreement. Except as set forth in the Target Disclosure Schedule, Target is not in active discussion, formal or informal, with any person or entity regarding the issuance of any form of additional Target equity that has not been issued or committed to prior to the date of this Agreement. Except as provided in this Agreement and the other Transaction Documents (as defined in Section 3.3(a)) or any transaction contemplated hereby or thereby, there are no voting trusts, proxies or other agreements or understandings with respect to the voting of the shares of capital stock of Target.
(c) All Target Options have been issued in accordance with the terms of the Target Option Plan and pursuant to the standard forms of option agreement previously provided to Acquiror or its representatives. Except as contemplated by this Agreement, no No option will by its terms require an adjustment in connection with the Merger. Neither the consummation of transactions contemplated by this Agreement or the other Transaction Documents nor any action taken by Target in connection with such transactions will result in (i) any acceleration of vesting in favor of any optionee under any Target Option; (ii) any additional benefits for any optionee under any Target Option; or (iii) the inability of Acquiror after the Effective Date Time to exercise any right or benefit held by Target prior to the Effective Time with respect to any Target Option assumed by Acquiror, including, without limitation, the right to repurchase an optionee's unvested shares on termination of such optionee's employment. The assumption assumpti! on by Acquiror of Target Options in accordance with Section 6.5 hereunder will not (i) give the optionees additional benefits which they did not have under their options prior to such assumption (after taking into account the existing provisions of the options, such as their respective exercise prices and vesting schedules) and (ii) constitute a breach of the Target Plan or any agreement entered into pursuant to such plan.
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Sources: Merger Agreement (Yahoo Inc)
Target Capital Structure. (a) The authorized capital stock of Target consists of 2,500,000 8,950,000 shares of Target Common Stock and 300,000 Stock, 50,000 shares of Target Class B Common Stock, $0.01 par value per share ("TARGET CLASS B COMMON STOCK"), and 2,000,000 shares of Preferred Stock, of which 272,667 1,500,000 shares are designated as Series A Cumulative Convertible Preferred Stock. As of the date of this Agreement, there are (i) 1,066,000 4,241,883 shares of Target Common Stock issued and outstanding, all of which are validly issued, fully paid and nonassessable; nonassessable and none of which are subject to repurchase rights, (ii) no shares of Target Warrants to purchase up to 47,248 Class B Common Stock issued or outstanding, (iii) 1,276,958.332 shares of Series A Preferred Stock issued and outstanding, all of which are validly issued, fully paid and nonassessable, and each share of which is convertible into 1.2 shares of Target Common Stock; , (iii) 47,248 warrants to purchase up to 632,610.671 shares of Target Common Stock (collectively, the "TARGET WARRANTS"); (iv) 1,532,349.998 shares of Target Common Stock reserved for future issuance upon exercise conversion of the Target Warrants; (iv) Target Convertible Notes convertible into up to 197,108 shares of Target Common Stock upon the consummation of the MergerPreferred Stock; (v) 197,108 shares of Target Common Stock reserved for issuance upon conversion of Target Convertible Notes; (vi) 203,050 774,952 shares of Target Common Stock reserved for future issuance pursuant to Target Options granted and outstanding under the Target Option Plan or otherwisePlan; and (viivi) 9,855 225,048 shares of Target Common Stock reserved for issuance upon exercise of options available to be granted in cancellation of the Professional Obligations; and (viii) no shares of future under the Target Preferred Stock are issued and outstandingOption Plan. The issued and outstanding shares of Target Common Stock and of Target Preferred Stock are held of record by the stockholders shareholders of Target as set forth and identified in the stockholder shareholder list attached as Schedule 3.2(a3.2
(a) to the Target Disclosure Schedule. The issued and outstanding Target Options are held of record by the option holders as set forth and identified in Schedule 2.1(d) of the Target Disclosure Schedulesoption holder list provided to Acquiror or its representatives. The issued and outstanding Target Warrants are held of record by the warrantholders as set forth and identified in Schedule 2.1(g) of the Target Disclosure Schedule. The issued and outstanding Target Convertible Notes are held of record by the noteholders as set forth and identified in Schedule 2.1(e) of the Target Disclosure Schedule. The Professional Obligations are owed warrantholder list provided to the organizations set forth in Schedule 2.1(f) of the Target Disclosure ScheduleAcquiror or its representatives. All shares of Target Common Stock and Target Preferred Stock subject to issuance as specified above, upon issuance on the terms and conditions (including payment) specified in the instruments pursuant to which they are issuable, shall be duly authorized, validly issued, fully paid and nonassessable. All shares of Target Common Stock subject to issuance upon the exercise of Target Options and Target Warrants or upon the conversion of Target Convertible NotesWarrants, upon issuance on the terms and conditions (including payment) specified in the instrument pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. None of the issued and outstanding shares of Target Common Stock are subject to contractual rights to repurchase upon the termination of the employment of the holder thereof with Target or its affiliates. All outstanding shares of Target Common Stock, Target Preferred Stock and outstanding Target Options, Options and Target Warrants and Target Convertible Notes (collectively "TARGET SECURITIES") were issued in compliance with applicable federal and state securities laws. Except as set forth in the Target Disclosure Schedule, there are no obligations, contingent or otherwise, of Target to repurchase, redeem or otherwise acquire any shares of Target Common Stock or Target Preferred Stock or make any investment (in the form of a loan, capital contribution or otherwise) in any other entity. An updated Schedule 3.2(a) reflecting changes permitted by this Agreement in the capitalization of Target between the date hereof and the Effective Time shall be delivered by Target to Acquiror on the Closing Date.
(b) Except as set forth in this Section 3.2, there are no equity securities of any class or series of Target, or any security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding. Except as set forth in this Section 3.2, there are no options, warrants, equity securities, calls, rights, commitments or agreements of any character to which Target is a party or by which it is bound obligating Target to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock of Target or obligating Target to grant, extend, accelerate the vesting of or enter into any such option, warrant, equity security, call, right, commitment or agreement. Except as set forth in the Target Disclosure Schedule, Target is not in active discussion, formal or informal, with any person or entity regarding the issuance of any form of additional Target equity that has not been issued or committed to prior to the date of this Agreement. Except as provided in this Agreement and the other Transaction Documents (as defined in Section 3.3(a)) or any transaction contemplated hereby or thereby, there are no voting trusts, proxies or other agreements or understandings with respect to the voting of the shares of capital stock of Target.
(c) All Target Options have been issued in accordance with the terms of the Target Option Plan and pursuant to the standard forms of option agreement previously provided to Acquiror or its representatives. Except as contemplated by this Agreement, no No option will by its terms require an adjustment in connection with the Merger. Neither the consummation of transactions contemplated by this Agreement or the other Transaction Documents nor any action taken by Target in connection with such transactions will result in (i) any acceleration of vesting in favor of any optionee under any Target Option; (ii) any additional benefits for any optionee under any Target Option; or (iii) the inability of Acquiror after the Effective Date Time to exercise any right or benefit held by Target prior to the Effective Time with respect to any Target Option assumed by Acquiror, including, without limitation, the right to repurchase an optionee's unvested shares on termination of such optionee's employment. The assumption by Acquiror of Target Options in accordance with Section 6.5 hereunder will not (i) give the optionees additional benefits which they did not have under their options prior to such assumption (after taking into account the existing provisions of the options, such as their respective exercise prices and vesting schedules) and (ii) constitute a breach of the Target Plan or any agreement entered into pursuant to such plan.
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