Capitalization. (a) The whole of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 shares of Company Ordinary Shares and (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares)). (b) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws. (c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant. (d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereof.
Appears in 4 contracts
Sources: Share Purchase Agreement (Odyssey Therapeutics, Inc.), Share Purchase Agreement (Odyssey Therapeutics, Inc.), Share Purchase Agreement (Odyssey Therapeutics, Inc.)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 200,000,000 shares of Company Ordinary Shares Common Stock and 10,000,000 shares of Company Preferred Stock. At the close of business on July 26, 2016, (i) 28,746,664 shares of Company Common Stock were issued and outstanding; (ii) 17,898 no shares of Seed Company Preferred Shares. The Sale Stock were issued and outstanding; (iii) 4,826,402 Company Shares and the shares were held by the Previous Sellers constitute the entire issued and to be issued share capital Company in its treasury; (iv) an aggregate of the Company, are the whole of the allotted and issued 4,390,772 shares of Company Capital Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued, issued and are fully paid up and no sum is outstanding in respect nonassessable and are free of any Sale Share or share held by any Previous Sellerpreemptive rights. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect Section 4.2(a) of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares)).
(b) Section 5.3(b) of the Disclosure Letter sets forth contains a true, correct and complete list, as of the Relevant Time a complete and accurate list of the holders of Company Capital Stockdate hereof, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth Stock Awards, indicating as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicatingapplicable, with respect to each Company Share OptionStock Award then outstanding, the type of Company Share Plan under which it was Stock Award granted, the number of shares of Company Ordinary Shares Common Stock subject to such Company Share Option, the exercise priceStock Award, the date of grant, exercise or purchase price and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunderexpiration thereof. Except as set forth on Section 5.3(c) of for the Disclosure LetterCompany Stock Awards, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share are on the date of such grant.
hereof no outstanding (dA) Except as set forth in this Section 5.3 or in Section 5.3(d) securities of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stockcapital stock or voting securities or ownership interests in the Company, (iiB) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company has (or, in each case, the economic equivalent thereof), (C) 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, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no obligation (contingent outstanding obligations of the Company or otherwise) any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of Capital Stockcapital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other equity ownership interests in (or securities convertible into or exchangeable for capital stock or voting interest securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries 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, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person or Person. There are not outstanding obligations to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of which the Company or any part thereofof its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securities.
Appears in 4 contracts
Sources: Merger Agreement (Skullcandy, Inc.), Merger Agreement (Mill Road Capital II, L.P.), Merger Agreement (Mill Road Capital II, L.P.)
Capitalization. (a) The whole of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 shares of Company Ordinary Shares and (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued authorized share capital of the Company, are the whole Company consists of the allotted and issued $1,630,185.83 divided into 1,076,416,910 shares of par value $0.015144558 each. At the close of business on August 24, 2018 (the “Capitalization Date”), (i) 59,692,594 Company Capital Stock Shares were issued and have been duly authorized outstanding, (ii) 11,000,000 5.95% Preference Shares were issued and validly issuedoutstanding, (iii) 10,000,000 5.625% Preference Shares were issued and are fully paid up and outstanding, (iv) no sum is outstanding Company Shares were held by the Company as treasury shares or held by its Subsidiaries, (v) 847,153 Company Shares were issuable in respect of outstanding Company RSU Awards and Company Performance Units, measured at the target level of performance and (vi) 286,919 Company Shares were subject to Company Phantom Share awards measured at target level of performance (which Company Phantom Share awards are, by their terms, settled solely in cash). The number of Company Shares that could be acquired with accumulated payroll deductions under the Company ESPP at the close of business on the purchase date for any Sale offering period in effect as of the date of this Agreement (assuming (A) the market price of a Company Share as of the close of business on the business day immediately preceding such date is equal to the Merger Consideration, (B) such date represents the last day of the current offering period, and (C) payroll deductions continue at the current rate) does not exceed 75,858 Company Shares. Since the Capitalization Date through the date of this Agreement, other than in connection with the vesting, settlement, or share held by any Previous Seller. Save for exercise of Company Awards outstanding on the Sale Shares Capitalization Date and the shares included in the second sentence of this Section 4.02(a) or the issuance of Company held by Share Purchase Plan Awards included in the Previous Sellersimmediately preceding sentence, no Relevant Securities exist in respect of neither the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of its Subsidiaries has issued any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))Securities.
(b) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) 4.02(a), as of the Disclosure Letterdate of this Agreement, there were (i) there are no allotted issued and outstanding Company Shares or issued other equity or voting interests in the Company, (ii) no outstanding securities of the Company convertible into or exchangeable for Company Shares or other equity or voting interests in the Company, (iii) no outstanding options, warrants, rights (including conversion rights, or preemptive rights and rights of first refusal other commitments or similar rights) or agreements, orally or in writing, agreements to purchase or acquire from the Company, or that obligate the Company to issue, any shares of Company Capital StockShares or other equity or voting interests in, or any securities convertible into or exchangeable for shares of Company Capital StockShares or other equity or voting interests in the Company, (iiiv) no obligations of the Company has no obligation (contingent to grant, extend, or otherwise) enter into any subscription, warrant, right, convertible or exchangeable security, or other similar agreement or commitment relating to purchase, redeem or otherwise acquire any shares of Capital StockCompany Shares, or other equity or voting interest interests in, the Company (collectively, “Company Rights” and the items in clauses (i), (ii), (iii) and (iv) being referred to, collectively, as “Company Securities”) and (v) no other obligations by the Company or any other Person or to pay any dividend or of its Subsidiaries to make any other distribution payments based on the price or value of any Company Securities or dividends paid thereon. Other than in respect connection with the Company Awards outstanding on the Capitalization Date and included in the second sentence of Section 4.02(a) or Company Share Purchase Plan Awards included in the third sentence of Section 4.02(a), there are no outstanding agreements or instruments of any kind that obligate the Company or any of its Capital StockSubsidiaries to repurchase, redeem, or otherwise acquire any Company Securities (or obligate the Company to grant, extend, or enter into any such agreements relating to any Company Securities) or that grant from the Company or any of its Subsidiaries any preemptive rights, subscription rights, anti-dilutive rights, rights of first refusal, or similar rights with respect to any Company Securities. With respect to each Company Award, Section 4.02(b) of the Company Disclosure Letter sets forth (i) the name of the holder of such Company Award, (ii) the type of award, (iii) the number of Company has not at any time purchasedShares subject to such Company Award, redeemed (iv) the grant date of such Company Award, (v) the vesting schedule applicable to such Company Award, and (vi) the Company Share Plan under which such Company Award was granted. Except as described in this Section 4.02, no direct or repaid any indirect Subsidiary of the Company Capital Stock or otherwise agreed to reduce owns any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value Securities. None of the Company or any part thereofSubsidiary of the Company is a party to any shareholders’ agreement, voting trust agreement, registration rights agreement, or other similar agreement or understanding relating to any Company Securities or any other agreement relating to the disposition, voting, or dividends with respect to any Company Securities. All issued and outstanding Company Shares have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights. There are no accrued or unpaid dividends or dividend equivalent rights with respect to any Company Shares, Company Performance Units, or Company RSU Awards, except for the Per Share Accrued Dividend Equivalents.
(c) The Company Shares, the 5.95% Preference Shares, and the 5.625% Preference Shares constitute the only issued and outstanding classes of equity securities of the Company and its Subsidiaries registered under the Exchange Act.
(d) Section 4.02(d) of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, of the name and jurisdiction of incorporation or organization of each Subsidiary of the Company. All of the issued and outstanding shares, share capital or shares of capital stock of, or other equity or voting interests in, each Subsidiary of the Company (except for directors’ qualifying shares or the like) are owned, directly or indirectly, beneficially and of record, by the Company, free and clear of all Liens and material transfer restrictions, except for such Liens and transfer restrictions of general applicability as may be provided under the Securities Act, other applicable securities Laws, or Insurance Laws (including any restriction on the right to vote, sell, or otherwise dispose of such shares, share capital, shares of capital stock, or other equity or voting interests). Each issued and outstanding share, share capital, or share of capital stock of each Subsidiary of the Company that is held, directly or indirectly, by the Company is duly authorized, validly issued, fully paid, nonassessable, and free of preemptive rights, and there are no subscriptions, options, warrants, rights, calls, contracts, or other commitments, understandings, restrictions, or arrangements relating to the issuance, acquisition, redemption, repurchase, or sale of any shares, share capital, or shares of capital stock or other equity or voting interests of any Subsidiary of the Company, including any right of conversion or exchange under any outstanding security, instrument or agreement, and agreement granting any preemptive rights, subscription rights, anti-dilutive rights, rights of first refusal, or similar rights (to Persons other than the Company or any Subsidiary of the Company) with respect to any securities of any Subsidiary of the Company. None of the Subsidiaries of the Company has any outstanding equity compensation plans relating to the share capital of, or other equity or voting interests in, any Subsidiary of the Company.
Appears in 4 contracts
Sources: Merger Agreement (Aspen Insurance Holdings LTD), Merger Agreement (Aspen Insurance Holdings LTD), Merger Agreement (Aspen Insurance Holdings LTD)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 400,000,000 shares of Company Ordinary Shares Stock, 20,000,000 shares of Class B common stock of the Company and 10,000,000 shares of Class F common stock of the Company, each with a par value of $0.0001 per share and 10,000,000 shares of preferred stock of the Company (“Company Preferred Stock”), including 55,000 shares of Series A Redeemable Convertible Preferred Stock (“Series A Preferred Stock”) and 22,050 shares of Series B Redeemable Convertible Preferred Stock. As of June 21, 2022 (“Company Capitalization Date”), (i) there were issued and outstanding (A) 77,060,612 shares of Company Stock and (B) 19,610 shares of Series A Preferred Stock, and (C) Company DSUs with respect to an aggregate of 2,052,474 shares of Company Stock, all of which were issued under the Company LTIP, and (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued 5,414,193 shares of Company Capital Stock are reserved under the Company LTIP. All the outstanding shares of Company Stock are, and have been all shares of Company Stock reserved for issuance as described above shall be, when issued in accordance with the respective terms thereof, duly authorized and authorized, validly issued, and are fully paid up and no sum is outstanding in respect nonassessable and free of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))preemptive rights.
(b) Section 5.3(b4.5(b) of the Company Disclosure Letter Letter, sets forth as a true and complete list, of (i) each Company Equity Award, (ii) the name of the Relevant Time a complete and accurate list of the holders of Company Capital StockEquity Award holder, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, (iii) the number of shares of Company Ordinary Shares Stock underlying each Company Equity Award, (iv) in the case of any Pool A Performance Award or Pool B Performance Award, the Accumulated Cash Award Value, (v) the date on which the Company Equity Award was granted (vi) the vesting schedule with respect to the Company Equity Award, including any right of acceleration of such vesting schedule, (vii) the exercise price of each Company Equity Award, if anyapplicable, and (viii) into which such shares are convertiblethe expiration date of each Company Equity Award, if applicable. The Company holds no shares LTIP permits the treatment of Company Capital Stock Equity Awards described in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities LawsArticle III.
(c) Section 5.3(c4.5(c) of the Company Disclosure Letter sets forth as a true and complete list, of (i) each Warrant, (ii) the name of the Relevant Time a complete and accurate list of all holders of outstanding Company Share OptionsWarrant holder, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, (iii) the number of shares of Company Ordinary Shares subject to Stock underlying such Company Share Option, Warrant and (iv) the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grantWarrant.
(d) Section 4.5(d) of the Company Disclosure Letter sets forth a true and complete list of (i) each Equity Linked Convertible Note, (ii) the name of the Equity Linked Convertible Note holder, (iii) the amount outstanding under such Equity Linked Convertible Note and (iv) the conversion price of such Equity Linked Convertible Note.
(e) Except (w) as set forth in this Section 5.3 or in Section 5.3(d4.5(e) of the Company Disclosure Letter, (ix) there are no allotted or for any awards issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, pursuant to purchase or acquire from the Company LTIP after the date of this Agreement in accordance with the terms of this Agreement (all of which will be set forth on an updated Company Disclosure Letter delivered five (5) Business Days prior to the Closing and which otherwise will comply with the last sentence of Section 4.5(a)), (y) for any shares of Company Capital StockStock issued upon the exercise of any Company Equity Award, in each case, that were outstanding on the Company Capitalization Date or any subsequently granted under the Company LTIP or otherwise in accordance with the terms of this Agreement and (z) the Warrants and the Equity Linked Convertible Notes, there are no issued, reserved for issuance or outstanding (i) shares of capital stock or other voting securities of or other ownership interests in the Company, (ii) securities of the Company convertible into or exchangeable for shares of Company Capital Stockcapital stock or other voting securities of or other ownership interests in the Company, (iiiii) warrants, calls, options or other rights to acquire from the Company, or other obligation of the Company has to issue, any shares of capital stock, voting securities or securities convertible into or exchangeable for capital stock or other voting securities of or other ownership interests in the Company or (iv) restricted shares, stock appreciation rights, performance units, restricted stock units, contingent value rights, “phantom” stock or similar securities or rights issued or granted by the Company or any of its Subsidiaries that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any shares of capital stock or other voting securities of or other ownership interests in the Company (the items in clauses (i) through (iv) being referred to collectively as the “Company Securities”).
(f) There are no obligation (contingent outstanding obligations of the Company or otherwise) any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce Securities, and neither the Company nor any class of its issued share capital or carried out Subsidiaries maintains an employee stock purchase plan. Neither the Company nor any transaction having the effect of its Subsidiaries is a reduction of capitalparty to any voting trust, and (iv) there are no allottedproxy, issued or authorized stock appreciation rights, phantom stock awards voting agreement or other rights that are linked in any way similar agreement with respect to the price voting of any Company Securities. All outstanding shares of capital stock of the Company Capital Stock have been, and all shares that may be issued pursuant to any equity compensation plan or arrangement will be, when issued in accordance with the value respective terms thereof, duly authorized and validly issued, fully paid and nonassessable and free of preemptive rights. No Subsidiary of the Company owns any shares of capital stock of the Company or any part thereofCompany Securities. There are no outstanding bonds, debentures, notes or other indebtedness of the Company having the right to vote (whether on an as-converted basis or otherwise) (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Company may vote.
Appears in 4 contracts
Sources: Merger Agreement (U.S. Well Services, Inc.), Merger Agreement (U.S. Well Services, Inc.), Merger Agreement (ProFrac Holding Corp.)
Capitalization. (a) The whole of the allotted and issued Company Capital Stock as of the Relevant Time date hereof consists of (i)64,244 shares of Company Ordinary Shares and (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers Seed Preferred Shares constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous SellerShare. Save for the Sale Shares and the shares in the Company held by the Previous SellersSeed Preferred Shares, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Seed Preferred Shares)).
(b) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time date hereof a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time date hereof by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time date hereof a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time date hereof, a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereof.
Appears in 4 contracts
Sources: Share Purchase Agreement (Odyssey Therapeutics, Inc.), Share Purchase Agreement (Odyssey Therapeutics, Inc.), Share Purchase Agreement (Odyssey Therapeutics, Inc.)
Capitalization. (a) The whole As of the allotted and issued Company Capital Stock as date hereof, the authorized capital stock of the Relevant Time Company consists of two hundred million (i)64,244 shares 200,000,000) Common Shares. At the close of Company Ordinary business on May 20, 2015, (i) 138,842,945 Common Shares were issued and 96,885,085 Common Shares were outstanding, (ii) 17,898 shares of Seed Preferred Shares. The Sale 41,957,860 Common Shares and the shares were held in treasury by the Previous Sellers constitute Company and (iii) 1,663,682 Common Shares were reserved for issuance in respect of outstanding grants of Options, Performance Restricted Stock Units and Restricted Stock Rights pursuant to the entire Company’s stock plans listed on Section 5.3(a) of the Company Disclosure Letter. Except as set forth above, at the close of business on May 20, 2015, no Common Shares were issued, reserved for issuance or outstanding. All issued and to be issued share capital of the Company, are the whole of the allotted and issued shares of Company Capital Stock and outstanding Common Shares have been duly authorized and validly issued, issued and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))non-assessable.
(b) There are no preemptive or similar rights granted by the Company or any Company Subsidiary on the part of any holders of any class of securities of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary has outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the stockholders of the Company or any such Company Subsidiary on any matter (“Voting Company Debt”). Except as set forth in Section 5.3(b) of the Company Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital StockLetter, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares there are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forthnot, as of the Relevant Time date hereof, a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion rights, convertible or preemptive rights and rights exchangeable securities, “phantom” stock rights, stock appreciation rights, stock-based performance units, commitments, contracts, arrangements or undertakings of first refusal or similar rights) or agreements, orally or in writing, any kind to purchase or acquire from which the Company or any of the Company Subsidiaries is a party or by which any of them is bound (i) obligating the Company or any of the Company Subsidiaries to issue, deliver or sell or cause to be issued, delivered or sold, additional shares of Company Capital Stockcapital stock of, or other equity interests in, or any securities security convertible into or exercisable for or exchangeable for shares of into any capital stock of, or other equity interest in, the Company Capital Stock, or any Voting Company Debt or (ii) obligating the Company has no obligation (contingent or otherwise) any Company Subsidiary to purchaseissue, grant, extend or enter into any such option, warrant, right, security, unit, commitment, contract, arrangement or undertaking. As of the date hereof, there are not any outstanding contractual obligations of the Company or any of the Company Subsidiaries to repurchase, redeem or otherwise acquire any shares of Capital Stockcapital stock of the Company or any of the Company Subsidiaries. There are no proxies, voting trusts or other agreements or understandings to which the Company or any of the Company Subsidiaries is a party or is bound with respect to the voting of the capital stock of, or other equity or voting interest interests in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofSubsidiaries.
Appears in 3 contracts
Sources: Merger Agreement (CVS HEALTH Corp), Merger Agreement (Omnicare Inc), Merger Agreement (CVS HEALTH Corp)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 i) 400,000,000 shares of Company Ordinary Shares Common Stock and (ii) 17,898 40,000,000 shares of Seed Preferred Sharespreferred stock, par value $0.0001 per share. The Sale Shares At the close of business on October 23, 2025 (the “Capitalization Date”), there were (A) 146,910,657 shares of Company Common Stock issued and the outstanding, (B) no shares of preferred stock outstanding, (C) no shares of Company Common Stock held by the Previous Sellers constitute the entire issued and Company in its treasury, (D) outstanding Company Stock Options to be issued share capital purchase an aggregate of the Company, are the whole of the allotted and issued 13,668,203 shares of Company Capital Common Stock, (E) 3,919,806 shares of Company Common Stock subject to or otherwise deliverable in connection with outstanding Company RSUs, (F) 6,822,737 shares of Company Common Stock issuable pursuant to the Company Warrants, (G) 5,144,614 shares of Company Common Stock reserved for issuance in respect of future awards under the Stock Plans, and (H) 1,299,919 shares of Company Common Stock reserved for issuance under the ESPP. All such issued and outstanding shares of capital stock of the Company have been been, and all such shares that may be issued prior to the Effective Time will be when issued, duly authorized and validly issued, and are fully paid up and no sum is non-assessable, and free of preemptive rights. All outstanding shares of Company Common Stock and all Company Equity Awards and Company Warrants have been issued or granted, as applicable, in respect compliance in all material respects with applicable Law. Section 4.2(a) of any Sale Share the Company Disclosure Letter sets forth an accurate and complete list as of the Capitalization Date of each outstanding Company Equity Award and Company Warrant, including, as applicable, the holder, the type of Company Equity Award, date of grant, expiration date, exercise price, vesting schedule or share held by any Previous Seller. Save for the Sale Shares forfeiture conditions and number of shares of Company Common Stock subject thereto, and the shares in Stock Plan under which the award is granted. From the close of business on the Capitalization Date to the date hereof, the Company held by has not issued any shares of capital stock, or any other Company Securities, except upon the Previous Sellersexercise or settlement of the Company Equity Awards or Company Warrants, no Relevant Securities exist in each case outstanding as of the close of business on the Capitalization Date. Accumulated payroll deductions in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect Final Offering Period were $1,657,170.33 as of the Company (other than close of business on the Sale Shares and the A Pref Shares))Capitalization Date.
(b) Section 5.3(b) Other than the Company Common Stock, there are no outstanding bonds, debentures, notes, other indebtedness or securities of the Disclosure Letter sets forth as of Company having the Relevant Time a complete and accurate list of the holders of Company Capital Stockright to vote or, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share OptionsEquity Awards, indicatingCompany Warrants, with respect or purchase rights under the ESPP, that are convertible into or exchangeable or exercisable for, securities having the right to each Company Share Option, vote on any matters on which the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto)Stockholders may vote. Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 4.2, as of the date hereof, there are no issued, reserved for issuance or outstanding (i) shares of capital stock or other voting securities of or ownership interests in Section 5.3(dthe Company, (ii) securities of the Company convertible into or exchangeable or exercisable for shares of capital stock or other voting securities of, or ownership interests in, the Company, (iii) warrants, calls, options or other rights to acquire from the Company, or other obligation (including under any stockholder rights plan or other arrangement commonly referred to as a “poison pill”) of the Disclosure LetterCompany to issue, (i) there are no allotted any capital stock or issued optionsother voting securities, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stockownership interests in, or any securities convertible into or exchangeable or exercisable for shares capital stock or other voting securities, or ownership interests in, the Company, or (iv) restricted shares, stock appreciation rights, performance units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of Company Capital Stockany capital stock or other voting securities of, (ii) or ownership interests in, the Company has (the items in clauses (i) through (iv) being referred to collectively as “Company Securities”). There are no obligation (contingent outstanding contractual obligations of the Company or otherwise) of any Company Subsidiary of any kind to purchaseredeem, redeem purchase or otherwise acquire any shares of Capital StockCompany Securities other than the Company Warrants. There are no stockholder agreements, voting trusts or other equity agreements or voting interest in, understandings to which the Company or any other Company Subsidiary is a party relating to the voting or disposition of any Company Securities or granting to any Person or group of Persons the right to pay any dividend elect, or to make any other distribution in respect of its Capital Stockdesignate or nominate for election, (iii) a director to the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company Board or any part thereofCompany Subsidiary.
Appears in 3 contracts
Sources: Merger Agreement (Novartis Ag), Merger Agreement (Atrium Therapeutics, Inc.), Merger Agreement (Avidity Biosciences, Inc.)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of 130,000,000 Company Shares. As of November 29, 2010, (i)64,244 shares of i) 48,014,947 Company Ordinary Shares were issued and outstanding, (ii) 17,898 shares of Seed Preferred Shares. The Sale no Company Shares and were held in the shares held by the Previous Sellers constitute the entire issued and to be issued share capital treasury of the Company, are the whole (iii) no Company Shares were held by any Subsidiaries of the allotted Company and (iv) there were such number of Company Options to purchase Company Shares as is set forth on Section 4.03 of the Disclosure Schedule. The Company has not issued any Company Shares or Company Options to purchase Company Shares from and including November 29, 2010 to and including the date hereof, other than the issuance of Company Shares pursuant to the exercise of Company Options. As of the date hereof, no warrants to purchase shares of capital stock of the Company Capital Stock are outstanding. All outstanding Company Shares and shares of capital stock (or, where applicable, other comparable equity interests) of each Subsidiary of the Company have been been, and all shares of capital stock of the Company that may be issued pursuant to the Company Equity Compensation Plan will be, when issued in accordance with the respective terms thereof, duly authorized and authorized, validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Sellernonassessable. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares)).
(b) Section 5.3(b4.03(a) of the Disclosure Letter Schedule sets forth the authorized and, as of the Relevant Time a complete November 26, 2010, 2010, issued and accurate list outstanding capital stock (or, where applicable, other comparable equity interests) of each Subsidiary of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertibleCompany. The Company holds no shares of Company Capital Stock Except as set forth in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b4.03(a) of the Disclosure Letter Schedule, all outstanding shares of capital stock or comparable equity interests in the Subsidiaries of the Company are owned by the Company or a Subsidiary of the Company, free and clear of all Liens except for other than transfer restrictions on transfer under customary shareholder agreements between pursuant to the holder thereof federal securities Laws and the Company and under applicable any similar state or foreign securities Laws.
(cb) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on in Section 5.3(c4.03(a) above, there are no outstanding (i) shares of capital stock or voting securities of the Company or any of its Subsidiaries, (ii) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or voting securities of the Company or any of its Subsidiaries, (iii) options or other rights to acquire from the Company or any of its Subsidiaries or other obligations (including obligations arising out of preemptive rights or other similar rights) of the Disclosure LetterCompany or any of its Subsidiaries to issue any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company or any of its Subsidiaries, or (iv) contractual obligations that would otherwise entitle any other Person to share in the equity, profits, earnings, losses or gains of the Company or any of its Subsidiaries (including stock appreciation, phantom stock, profit participation or other similar rights). No depositary receipts (“certificaten”) have been issued for any Company Shares.
(c) Except as set forth in Section 4.03(a) above, there is are no allotted outstanding obligations of the Company or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class of its Subsidiaries to repurchase, redeem, otherwise acquire or series make any payment (including any dividend or distribution) in respect of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option any (i) shares of capital stock or voting securities of the Company or any of its Subsidiaries, (ii) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or voting securities of the Company or any of its Subsidiaries, or (iii) options or other rights to acquire from the Company or any of its Subsidiaries, or other obligations of the Company or any of its Subsidiaries, to issue any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company or any of its Subsidiaries. To the knowledge of the Company, there are no Liens on, or other contractual obligations relating to, the ownership, transfer or voting of any Company Shares or any shares of capital stock (or, where applicable, other comparable equity interests) of each Subsidiary of the Company.
(d) Each Company Option was granted in compliance with all applicable Laws and all of the terms and conditions of the applicable Company Share Equity Compensation Plan and (iiat all relevant times has qualified for exemption from Section 409A of the Code under Section 1.409A-1(b)(5)(i)(A) has an exercise price per share or Section 1.409A-1(b)(5)(ii) of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grantregulations thereunder.
(de) Except As of the date hereof, the Company had outstanding indebtedness for borrowed money (including the aggregate principal amount thereof, the aggregate amount of any accrued but unpaid interest thereon and penalties, fees, and premiums with respect thereto), whether secured or unsecured, in an amount as set forth in this Section 5.3 or in Section 5.3(d4.03(e) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofSchedules.
Appears in 3 contracts
Sources: Share Purchase Agreement (Aptalis Holdings Inc.), Share Purchase Agreement (Eurand N.V.), Share Purchase Agreement (Axcan Intermediate Holdings Inc.)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 200,000,000 shares of Company Ordinary Shares Common Stock and (ii) 17,898 175,000 shares of Seed preferred stock (the “Company Preferred SharesStock”). The Sale Shares and At the shares held by the Previous Sellers constitute the entire issued and to be issued share capital close of the Companybusiness on October 22, are the whole of the allotted and issued 2015, (a) 79,354,828 shares of Company Capital Common Stock were issued and have been duly authorized outstanding, (b) no shares of Company Preferred Stock were issued and validly issuedoutstanding, (c) Company RSUs with respect to an aggregate of 59,769 shares of Company Common Stock were issued and are fully paid up and no sum is outstanding (including shares of Company Common Stock issuable in respect of any Sale dividends declared through such date), and (d) Company Performance Share or share held by any Previous SellerAwards with respect to an aggregate of 500,478 shares of Company Common Stock based on achievement of applicable performance criteria at target level were issued and outstanding. Save for From October 22, 2015 through the Sale Shares and the shares in date of this Agreement, the Company held by the Previous Sellershas not issued any shares of Company Common Stock, no Relevant Securities exist in respect shares of the Company (nor is there Preferred Stock, Company RSUs, Company Performance Share Awards or any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))Equity Securities.
(b) All outstanding shares of Company Common Stock are, and all shares of Company Common Stock that may be issued upon the settlement of Company RSUs and Company Performance Share Awards will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not subject to, or issued in violation of, any preemptive right. Except as set forth in (x) Section 5.3(b3.2(b) of the Company Disclosure Letter sets forth Schedule, (y) in Section 3.2(a), or (z) pursuant to the terms of this Agreement, as of the Relevant Time date hereof, there are not issued, reserved for issuance or outstanding, and there are not any outstanding obligations of the Company or any Subsidiary of the Company to issue, deliver or sell, or cause to be issued, delivered or sold, (i) any capital stock of the Company or any Subsidiary of the Company or any securities of the Company or any Subsidiary of the Company convertible into or exchangeable or exercisable for shares of capital stock or voting securities of, or other equity interests in, the Company or any Subsidiary of the Company or (ii) any warrants, calls, options or other rights to acquire from the Company or any Subsidiary of the Company, or any other obligation of the Company or any Subsidiary of the Company to issue, deliver or sell, or cause to be issued, delivered or sold, any capital stock or voting securities of, or other equity interests in, the Company or any Subsidiary of the Company (the foregoing clauses (i) and (ii), collectively, “Equity Securities”). Except pursuant to the Company Stock Plan, there are not any outstanding obligations of the Company or any Subsidiary of the Company to repurchase, redeem or otherwise acquire any Equity Securities. There is no outstanding Indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which shareholders of the Company may vote.
(c) Section 3.2(c) of the Company Disclosure Schedule sets forth a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, following information with respect to shares other than each Company Ordinary Shares, RSU and each Company Performance Share Award outstanding as of the date of this Agreement: (i) the name of the holder of each Company RSU or Company Performance Share Award; (ii) the number of shares of Company Ordinary Shares (if any) into which Common Stock subject to each such shares are convertible. The Company holds no shares of RSU or Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Performance Share Options, indicatingAward, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of such shares of Company Ordinary Shares subject to such Company Performance Share Option, the exercise price, the date of grant, Awards listed at both target and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, maximum levels; (iii) the grant date of each such Company has not at any time purchased, redeemed RSU or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, Performance Share Award and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock Plan pursuant to which each such Company RSU or the value of the Company or any part thereofPerformance Share Award was granted.
Appears in 3 contracts
Sources: Merger Agreement (Duke Energy CORP), Merger Agreement (Piedmont Natural Gas Co Inc), Merger Agreement
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 shares of i) 30,000,000 Company Ordinary Shares and (ii) 17,898 2,000,000 shares of Seed Company Preferred SharesStock. The Sale As of the close of business on February 29, 2012 (the “Capitalization Date”): (A) 10,696,473 Company Shares and the shares held by the Previous Sellers constitute the entire were issued and to be outstanding, (B) no shares of Company Preferred Stock were issued share capital of the Company, are the whole of the allotted and issued outstanding and (C) no shares of Company Capital Stock and have been duly authorized and were held by the Company as treasury shares. All outstanding Company Shares are validly issued, fully paid, nonassessable and are fully paid up and no sum is outstanding in respect free of any Sale Share or share held by any Previous Sellerpreemptive rights. Save for Since the Sale Shares Capitalization Date, and except as otherwise issued after the shares execution of this Agreement in compliance with Section 6.2, the Company held by the Previous Sellers, no Relevant Securities exist in respect has not issued any shares of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (Capital Stock other than pursuant to the Sale Shares and the A Pref Shares))exercise of Company Options granted under a Company Stock Plan.
(b) Section 5.3(b4.4(b)(i) of the Company Disclosure Letter sets forth Schedule specifies with respect to each outstanding Company Option, as of the Relevant Time a complete and accurate list close of business on the Capitalization Date, the name of the holders holder of Company Capital Stocksuch option, showing the number of shares Company Shares issuable upon the exercise of such Capital Stockoption, the exercise price of such option, the date on which such option was granted, the extent unvested and vested on the Capitalization Date, and whether such option is intended to qualify as an incentive stock option as defined in Section 422 of the class or series Code. Section 4.4(b)(ii) of such shares, held by each such shareholder and, the Company Disclosure Schedule specifies with respect to shares other than each outstanding award of Company Ordinary SharesRestricted Stock, as of the close of business on the Capitalization Date, the name of the holder of such award, the number of shares of Company Ordinary Shares (if any) into Restricted Stock held by such holder, the repurchase price of such Company Restricted Stock, the date on which such shares are convertibleCompany Restricted Stock was purchased or granted, and the extent to which such Company right of repurchase or forfeiture has lapsed as of such date. The Company holds no shares of Company Capital Stock in its treasury. All As of the allotted Capitalization Date, 678,221 Company Shares were reserved for future issuance pursuant to stock awards not yet granted under the Company Stock Plans and, since such date, and except as otherwise issued shares after the execution of this Agreement in compliance with Section 6.2, the Company Capital has not granted, committed to grant or otherwise created or assumed any obligation with respect to any Company Options, other than as permitted by Section 6.2(b). True, correct and complete copies of the standard equity award agreements under the Company Stock Plans and each agreement for each Company Option and/or Company Restricted Stock that does not conform to the standard equity award agreements under the Company Stock Plans have been delivered or made available by the Company to Parent. No Company Options or Company Restricted Stock have been offered, validly issued granted or are outstanding except under and sold by the pursuant to a Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities LawsPlan.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter4.4, there are (i) there are no allotted outstanding shares of capital stock of, or issued other equity or voting interest in, the Company, (ii) no outstanding securities of the Company convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, the Company, (iii) no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal other commitments or similar rights) or agreements, orally or in writing, agreements to purchase or acquire from the Company, or that obligates the Company to issue, any shares of Company Capital Stockcapital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stockcapital stock of, or other equity or voting interest in, the Company, (iv) no obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other Person similar agreement or commitment relating to pay any dividend capital stock of, or to make other equity or voting interest (including any other distribution voting debt) in, the Company (the items in respect of its Capital Stockclauses (i), (ii), (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv), together with the capital stock of the Company, being referred to collectively as “Company Securities”) there are or (v) no allotted, issued other obligations by the Company or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way of its Subsidiaries to make any payments based on the price of the Company Capital Stock or the value of the Company Securities. There are no outstanding Contracts of any kind that obligate the Company or any part thereofof its Subsidiaries to repurchase, redeem or otherwise acquire any Company Securities.
(d) Except as set forth in Section 4.4(d) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries is a party to any Contract which by its terms restricts the transfer of or voting of, requires registration of, or grants any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to, any securities of the Company.
Appears in 3 contracts
Sources: Merger Agreement (Nuance Communications, Inc.), Merger Agreement (Nuance Communications, Inc.), Merger Agreement (Transcend Services Inc)
Capitalization. (a) The whole authorized capital stock of the allotted Company consists of 25,000,000 shares, $0.01 par value per share, of Company Common Stock and issued 10,000,000 shares, $0.01 par value per share, of preferred stock (the "Company Capital Stock as Preferred Stock"). As of the Relevant Time consists date of this Agreement: (i)64,244 i) 10,715,119 shares of Company Ordinary Shares Common Stock were issued and outstanding, and no shares of Company Preferred Stock were issued or outstanding, (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued no shares of Company Capital Common Stock and were reserved for issuance except that (A) 1,579,337 shares of Company Common Stock have been duly authorized reserved for issuance pursuant to the 1994 Company Stock Option and validly issuedIncentive Plan, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares which 1,082,334 may be issued in the Company held by future upon the Previous Sellers, no Relevant Securities exist in respect exercise of the Company options currently outstanding and (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares)).
(bB) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders 526,813 shares of Company Capital StockCommon Stock have been reserved for issuance pursuant to the 1994 Company Employee Stock Purchase Plan, showing the number of which 19,037 shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect are estimated to shares other than Company Ordinary Shares, be the number of shares of Company Ordinary Shares Common Stock which will be issued pursuant to contributions by employees of the Company under the 1994 Company Employee Stock Purchase Plan during calendar year 1997, and (if anyC) into which such 31,857 shares are convertible. The of Company holds Common Stock have been reserved for issuance at par value on or about September 30, 1997 pursuant to an employment agreement with a former employee, (iii) no shares of Company Capital Preferred Stock were reserved for issuance and (iv) 242,185 shares of Company Common Stock were held by the Company in its treasury. All of the allotted issued and issued outstanding shares of Company Capital Common Stock have been offeredduly authorized and are validly issued, validly issued and sold by the Company in compliance and accordance withfully paid, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereundernonassessable. Except as set forth on Section 5.3(c) of the Disclosure Letterindicated hereinabove, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted outstanding or issued authorized options, warrants, rights (including purchase rights, subscription rights, conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stockexchange rights, or other equity contracts or voting interest in, commitments that could require the Company or any other Person Subsidiary thereof to issue, sell, or otherwise cause to pay become outstanding any dividend or to make any other distribution in respect of its Capital Stock, (iii) capital stock or the Company has not at capital stock of any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there Subsidiary thereof. There are no allotted, issued outstanding or authorized stock appreciation rightsappreciation, phantom stock awards stock, profit participation, or other similar rights that are linked in any way with respect to the price of the Company Capital Stock or the value of the Company or any part thereofof its Subsidiaries. After giving effect to the transactions contemplated by the Share Exchange and Termination Agreement, all shares of capital stock of Subsidiaries of the Company are wholly owned directly or indirectly by the Company and have been duly authorized and are validly issued, fully paid and nonassessable.
Appears in 3 contracts
Sources: Merger Agreement (Cable Systems Holding LLC), Merger Agreement (Ipc Information Systems Inc), Agreement and Plan of Merger (Cable Systems Holding LLC)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock consists of (i) 750,000,000 Shares, of which, as of the Relevant Time consists close of business on August 20, 2015 (i)64,244 the “Measurement Date”), 120,071,870 Shares were issued and outstanding (including Company Restricted Shares), (ii) 10,000,000 shares of Company Ordinary Shares preferred stock, no par value, of which, as of the Measurement Date, no shares were issued and outstanding, and (iiiii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued 10,000,000 shares of Company Class A junior participating preferred stock, no par value, of which, as of the Measurement Date, no shares were issued and outstanding (collectively, the “Company Capital Stock Stock”). As of the Measurement Date, 216,523 Shares were held in the Company’s treasury. As of the Measurement Date, 3,661,996 Shares were reserved for issuance under the Company Omnibus Performance Incentive Plan, no Shares were reserved for issuance under the Company Long-Term Incentive Plan, 363,675 Shares were reserved for issuance under the Company ESPP and 2,031,307 Shares were reserved for issuance under the Company DRIP. All of the issued and outstanding Shares have been duly authorized and validly issued, issued and are fully paid up paid, nonassessable and no sum is outstanding in respect free of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))preemptive rights.
(b) Section 5.3(b) The Company has provided Parent with an accurate and complete list of the Disclosure Letter sets forth each Company Stock Award outstanding as of the Relevant Time Measurement Date pursuant to the Company Equity Incentive Plans. All outstanding Company Stock Awards were granted under a complete Company Equity Incentive Plan and accurate list are evidenced by award agreements, in each case in all material respects in the forms made available by the Company to Parent, and no award agreement contains terms that are inconsistent with or in addition to such forms in any material respect. From the Measurement Date until the date of this Agreement, the Company has not issued any Shares or Company Stock Awards or other equity securities of the holders Company or any securities representing the right to purchase or otherwise receive any Shares (other than in connection with (i) the exercise or settlement of Company Capital Stock, showing Stock Awards or ESPP Purchase Rights granted prior to the number Measurement Date or (ii) the issuance of shares of such Capital Stock, and Shares under the class or series of such shares, held by each such shareholder and, with respect Company DRIP).
(c) Except pursuant to shares other than Company Ordinary Sharesthis Agreement, the number Company Equity Incentive Plans, the Company ESPP, the Company DRIP or as set forth in this Section 3.2, the Company does not have and is not bound by any outstanding subscriptions, options, warrants, calls, commitments or agreements of shares any character calling for the purchase, issuance or registration of any Shares or any other equity securities of the Company Ordinary Shares or any securities representing the right to purchase or otherwise receive any Shares.
(if anyd) into There are no bonds, debentures, notes or other indebtedness having the right to vote on any matters on which such shares shareholders of the Company may vote that are convertible. The Company holds no shares issued or outstanding as of Company Capital Stock in its treasury. the date of this Agreement.
(e) All of the allotted issued and issued outstanding shares of capital stock or other equity ownership interests of each Company Capital Stock have been offered, validly issued and sold Subsidiary that are owned by the Company in compliance and accordance withCompany, and no transfer (directly or purported transfer) of any shares of Company Capital Stock has been made at any time in breach ofindirectly, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of any Liens (other than transfer restrictions under applicable federal and state securities Laws), and all Liens except of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights. No Company Subsidiary has or is bound by any outstanding subscriptions, options, warrants, calls, commitments or agreements of any character calling for restrictions on transfer under customary shareholder agreements between the holder thereof and purchase or issuance of any shares of capital stock or any other equity security of such Company Subsidiary or any securities representing the right to purchase or otherwise receive any shares of capital stock or any other equity security of such Company and Subsidiary. There are no outstanding obligations (other than those under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, which the Company or any other Person Company Subsidiary is a party restricting the transfer of, or to pay limiting the exercise of voting rights with respect to, any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked Equity Interest in any way to the price of the Company Capital Stock or the value of the Company or any part thereofSubsidiary.
Appears in 3 contracts
Sources: Merger Agreement (Southern Co), Merger Agreement (Agl Resources Inc), Merger Agreement
Capitalization. (a) The whole authorized share capital of the allotted and issued Company Capital Stock as consists of 15,000,000 Company Shares. As of the Relevant Time consists of date hereof, (i)64,244 shares of i) (1) 5,017,556 Company Ordinary Shares were issued and outstanding, (2) no Company Shares were held in treasury and (3) no Company Shares were held by the Company Subsidiaries, and (ii) 17,898 shares of Seed Preferred Shares538,000 Company Shares were reserved for issuance pursuant to the Company Equity Plan. The Sale All the outstanding Company Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Companyare duly authorized, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect non-assessable and free of any Sale Share or share held by any Previous Seller. Save for the Sale Shares pre-emptive rights and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect none of the Company (nor is there Equity Awards have any agreement or arrangement for voting rights prior to the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))anticipated Acceptance Time.
(b) Section 5.3(b2.2(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time date hereof, a complete and accurate list (i) the aggregate number of all Company Share PlansShares that are subject to Company Equity Awards, indicating for (ii) the name or identification number of each Company Share Plan holder, (iii) the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder each Company Equity Award, (iv) the grant date of each Company Equity Award and (v) the number vesting schedule of shares each Company Equity Award. The Company shall provide Purchaser, within three (3) Business Days prior to the anticipated Acceptance Time and again at the Acceptance Time, with an updated complete and correct list, as of Company Ordinary Shares reserved for future issuance thereunder. Except as each such date, of the information required to be set forth on Section 5.3(c2.2(b) of the Company Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series holder of Company Capital Stock Equity Awards has any voting or other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of rights which can or will vest before the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grantAcceptance Time.
(dc) Except as set forth in this Section 5.3 or in 2.2(a) and Section 5.3(d2.2(b) above, as of the Disclosure Letter, date hereof: (i) the Company does not have any shares or other voting securities issued or outstanding or reserved for issuance, and (ii) there are no allotted or issued outstanding subscriptions, options, warrants, rights (including conversion puts, calls, exchangeable or preemptive rights and rights of first refusal convertible securities or other similar rights) , agreements or agreements, orally or in writing, commitments relating to purchase or acquire from the issuance of capital stock to which the Company or any of the Company Subsidiaries is a party obligating the Company or any of the Company Subsidiaries to (1) issue, transfer or sell any shares in the capital or other equity interests of the Company Capital Stock, or any Company Subsidiary or securities convertible into or exchangeable for such shares of Company Capital Stock, or equity interests (ii) in each case other than to the Company has no obligation or a wholly owned Subsidiary of the Company); (contingent 2) grant, extend or otherwiseenter into any such subscription, option, warrant, put, call, exchangeable or convertible securities or other similar right, agreement or commitment; (3) to purchase, redeem or otherwise acquire any such shares of Capital Stock, in its capital or other equity interests; or voting interest (4) provide a material amount of funds to, or make any material investment (in the form of a loan, capital contribution or otherwise) in, any Company Subsidiary that is not wholly owned.
(d) Neither the Company nor any Company Subsidiary has outstanding bonds, debentures, notes or other similar obligations, the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the members of the Company on any matter.
(e) There are no voting trusts or other agreements or understandings to which the Company or any other Person or Company Subsidiary is a party with respect to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any voting of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value equity interest of the Company or any part thereofCompany Subsidiary.
Appears in 3 contracts
Sources: Tender Offer Agreement (Borr Drilling LTD), Tender Offer Agreement (Borr Drilling LTD), Tender Offer Agreement
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 i) 200,000,000 shares of Company Ordinary Shares common stock of the Company, par value $0.001 per share, and (ii) 17,898 1,000,000 shares of Seed Preferred SharesStock, par value $0.001 per share (“Company Preferred Stock”). The Sale Shares and the As of January 3, 2011, there were outstanding (A) 76,965,365 shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the CompanyCommon Stock, are the whole of the allotted and issued (B) no shares of Company Capital Preferred Stock, (C) employee stock options to purchase an aggregate of 9,100,000 shares of Company Common Stock (of which options to purchase an aggregate of 3,764,996 shares of Common Stock were exercisable), and (D) warrants to purchase an aggregate of 9,362,184 shares of Company Common Stock. All outstanding shares of capital stock of the Company have been been, and all shares that may be issued pursuant to any employee stock option or other compensation plan or arrangement will be, when issued in accordance with the respective terms thereof, duly authorized and validly issued, issued and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Sellernonassessable. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect No Subsidiary of the Company (nor is there owns any agreement or arrangement for shares of capital stock of the creation, constitution, grant or issuance of any Relevant Securities in respect Company. Section 5.05(a) of the Company Disclosure Schedule contains a complete and correct list of (other than x) each outstanding Company Stock Option, including with respect to each such option the Sale Shares holder, date of grant, exercise price, vesting schedule and number of shares of Common Stock subject thereto and (y) each outstanding Company Warrant, including with respect to each such warrant the A Pref Shares))holder, date of grant, exercise price, and number of shares of Common Stock subject thereto and with respect to (x) and (y) above, the comparable information with respect to such securities immediately after the Effective Time.
(b) Section 5.3(b) There are no outstanding bonds, debentures, notes or other indebtedness of the Disclosure Letter sets forth as Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which stockholders of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertiblemay vote. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 5.05 and for changes since December 31, 2010 resulting from the exercise of employee stock options outstanding on such date, there are no issued, reserved for issuance or outstanding, or obligations whether absolute or contingent, in Section 5.3(d) of the Disclosure Letterfuture to issue, (i) there are no allotted shares of capital stock or issued optionsother voting securities of or other ownership interest in the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or other voting securities of or other ownership interest in the Company, (iii) warrants, calls, options or other rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital StockCompany, or other obligations of the Company to issue, any capital stock, other voting securities or securities convertible into or exchangeable for shares capital stock or other voting securities of Company Capital Stockor other ownership interest in the Company, or (iiiv) restricted shares, stock appreciation rights, performance units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities of or ownership interests in, the Company has (the items in clauses (i) though (iv) being referred to collectively as the “Company Securities”). There are no obligation (contingent outstanding obligations of the Company or otherwise) any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce Securities. Neither the Company nor any class of its issued share capital or carried out Subsidiaries is a party to any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way voting agreement with respect to the price voting of any Company Securities. The Company is not a party to any agreement obligating it to file or maintain the effectiveness of any registration statement under the 1933 Act with respect to any Company Securities.
(c) As of December 31, 2010, the amount of outstanding Indebtedness of the Company Capital Stock or and its Subsidiaries (excluding intercompany Indebtedness) does not exceed $393,000 in the value of the Company or any part thereofaggregate.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Hudson Holding Corp), Merger Agreement (Hudson Holding Corp), Merger Agreement (Rodman & Renshaw Capital Group, Inc.)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 a) 300,000,000 shares of Company Ordinary Shares Common Stock and (b) 10,000,000 shares of preferred stock, par value $.01 per share (the "Company Preferred Stock"). As of the date hereof, (i) 35,704,665 shares of Company Common Stock were issued and outstanding (plus any shares issued upon exercise of Company Stock Options since February 11, 2000), all of which are validly issued, fully paid and nonassessable and (ii) 17,898 5,268,463 shares of Seed Preferred Shares. The Sale Shares and Company Common Stock are held in the shares held by the Previous Sellers constitute the entire issued and to be issued share capital treasury of the Company, are the whole . As of the allotted and issued shares date of Company Capital Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellersthis Agreement, no Relevant Securities exist in respect shares of the Company (nor is there any agreement Preferred Stock were issued and outstanding. The Company has no other capital stock authorized, issued or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))outstanding.
(b) Section 5.3(bAs of February 11, 2000, (i) 17,779,543 shares of the Company Common Stock were subject to issuance pursuant to outstanding Company Stock Options, (ii) 170,911 shares of Company Common Stock were subject to issuance pursuant to outstanding Company Warrants and (iii) 138,354 securities convertible into 2,305,900 shares of Company Common Stock were outstanding. The Company Disclosure Letter sets forth forth, with respect to the Company Stock Options outstanding as of February 11, 2000, the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the aggregate number of shares of such Capital Stock, Company Common Stock subject to Company Stock Options under each Company Stock Option Plan and the class or series weighted average exercise price of such sharesCompany Stock Options. The Company Disclosure Letter also lists the names of all individuals or entities who own Company Warrants, held by each such shareholder and, together with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which Common Stock subject to such shares are convertibleCompany Warrants and the exercise prices of such Company Warrants. The Company holds no No options, warrants or other rights to acquire shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Common Stock have been offeredgranted from February 11, validly issued and sold by 2000 to the Company in compliance and accordance with, and no transfer (or purported transfer) date of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Lawsthis Agreement.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating Except for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was Company Stock Options granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal pursuant to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital StockStock Option Plans, (ii) stock options granted pursuant to the CareInsite stock option plans and arrangements described in Section 2.04 of the CareInsite Merger Agreement, and (iii) the Company has Warrants, there are no obligation (contingent options, warrants or otherwise) other rights, agreements, arrangements or commitments of any character relating to purchasethe issued or unissued capital stock of the Company or any Company Subsidiary or obligating the Company or any Company Subsidiary to issue or sell any shares of capital stock of, or other equity interests in, the Company or any Company Subsidiary. All shares of Company Common Stock subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. There are no outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of Capital StockCompany Common Stock or any capital stock of any Company Subsidiary. Each outstanding share of capital stock of each Company Subsidiary is duly authorized, or other equity or voting interest invalidly issued, fully paid and nonassessable and each such share owned by the Company or another Company Subsidiary is free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on the Company's or such other Company Subsidiary's voting rights, charges and other encumbrances of any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there nature whatsoever. There are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value outstanding contractual obligations of the Company or any part thereofCompany Subsidiary to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Company Subsidiary, other than a Company Subsidiary that is wholly owned by the Company and other Company Subsidiaries, or any other Person.
(d) On a fully exercised and converted to Company Common Stock basis, the number of shares of Company Common Stock outstanding on the date hereof would be 55,961,019.
Appears in 3 contracts
Sources: Merger Agreement (Careinsite Inc), Merger Agreement (Medical Manager Corp/New/), Merger Agreement (Healtheon Webmd Corp)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time date of this Agreement consists of 20,000,000 Shares and 1,000,000 preferred shares, par value $0.01 per share (i)64,244 shares “Company Preferred Stock”). The rights and privileges of Company Ordinary each class of the Company’s capital stock are as set forth in the Company’s articles of incorporation. As of the date of this Agreement, (i) 11,953,384 Shares were issued and outstanding and (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued no shares of Company Capital Preferred Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share were issued or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))outstanding.
(b) Section 5.3(b3.3(b) of the Company Disclosure Letter sets forth Schedule includes a list, as of the Relevant Time a complete and accurate list date of this Agreement, of (i) each outstanding Company Option under the Company Stock Plans or issued independent of such plans, including the name of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Optionholder, the Company Share Stock Plan under which it was each Company Option is granted, the number of shares of Company Ordinary Shares subject to such Company Share Optiongrant date and acceleration provisions, the expiration date, the exercise price, and whether any option is an incentive stock option, (ii) the date total number of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for Shares issued under each Company Share Plan Stock Plan, (iii) the total number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(cunder each Company Stock Plan and (iv) each grant of Shares that are subject to repurchase by the Disclosure LetterCompany pursuant to Company Restricted Shares, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions including the name of the applicable holder, the Company Share Stock Plan under which such Company Restricted Shares were issued, the issue date, the applicable vesting and acceleration provisions, any performance targets or market conditions related to vesting and the repurchase price relating to each grant of Company Restricted Shares. The Company Stock Plans (iiincluding all amendments) has have been duly approved by the Company’s shareholders. All outstanding Company Options were granted with an exercise price per share of Company Ordinary Share equal to or greater not less than the fair market value of a share of Company Ordinary Share the Shares on the date of such grant. The Company has made available to Parent complete and accurate copies of all (x) Company Stock Plans, (y) forms of stock option agreements evidencing Company Options and (z) forms of agreements evidencing Company Restricted Shares.
(dc) Except as set forth in Section 3.3(a) of this Section 5.3 Agreement, Sections 3.3(b) or in Section 5.3(d3.3(c) of the Company Disclosure LetterSchedule or Schedule 5.1 of this Agreement, (i) there are no allotted not as of the date of this Agreement, and at the Acceptance Time there will not be, any equity securities of any class of the Company, or issued any security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding and (ii) there are not as of the date of this Agreement, and at the Acceptance Time there will not be, any options, warrants, rights (including conversion equity securities, calls, rights, commitments or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, agreements to purchase or acquire from which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound obligating the Company or any of its subsidiaries to issue, exchange, transfer, deliver, sell or cause to be issued, exchanged, transferred, delivered or sold, additional shares of capital stock or other equity or voting interests of the Company Capital Stock, or any securities security or rights convertible into or exchangeable or exercisable for any such shares or other equity or voting interests, or obligating the Company or any of its subsidiaries to grant, extend, accelerate the vesting of, otherwise modify or amend or enter into any such option, warrant, equity security, call, right, commitment or agreement, other than the Top-Up Option. The Company does not have any outstanding stock appreciation rights, restricted stock units, phantom stock, performance based rights or similar rights or obligations. None of the Company or, to the Company’s knowledge, any of its Affiliates, is a party to or is bound by any agreement with respect to the voting (including proxies) or sale or transfer of any shares of Company Capital Stockcapital stock or other equity or voting interests of the Company. For all purposes of this Agreement, (ii) the term “Affiliate” when used with respect to any person means any other person who is an “affiliate” of that first person within the meaning of Rule 405 under the Securities Act. Except as contemplated by this Agreement and except to the extent arising pursuant to applicable state takeover or similar Laws, there are no registration rights, and there is no rights agreement, “poison pill” anti-takeover plan or other similar agreement to which the Company has or any Company Subsidiary is bound with respect to any securities of the Company.
(d) All outstanding Shares are, and all Shares subject to issuance as specified in Section 3.3(b) above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be, duly authorized, validly issued, fully paid and nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the MBCA, the Company’s articles of incorporation or bylaws or any agreement to which the Company is bound.
(e) There are no obligation (obligations, contingent or otherwise) , of the Company or any of its subsidiaries to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock Shares or the value capital stock of the Company or any part thereofof its subsidiaries. The Company has no outstanding bonds, debentures, notes or other indebtedness that have the right to vote on any matters on which shareholders may vote.
Appears in 3 contracts
Sources: Merger Agreement (Somanetics Corp), Merger Agreement (Covidien PLC), Merger Agreement (Somanetics Corp)
Capitalization. (a) The whole As of the allotted and issued Company Capital Stock as date of this Agreement, the authorized capital stock of the Relevant Time Company consists of 40,000,000 shares of Class A Stock, 9,000,000 shares of Class B Stock, and 1,000,000 shares of Series A convertible preferred stock, par value $1.00 per share (i)64,244 the “Company Preferred Stock“). As of the close of business on June 5, 2012 (the “Capitalization Date“), (i) 10,464,627 shares of Class A Stock were issued and outstanding, (ii) 6,209,477 shares of Class A Stock were held in treasury by the Company, (iii) 7,890,497 shares of Class B Stock were issued and outstanding, and (iv) no shares of Class B Stock were held in treasury by the Company. As of the date of this Agreement, no shares of Company Ordinary Shares and (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire Stock were issued and to be outstanding. All issued share capital and outstanding equity securities of the CompanyCompany are duly authorized, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))nonassessable.
(b) Section 5.3(b3.02(b) of the Company Disclosure Letter sets forth as of the Relevant Time contains a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forthschedule, as of the Relevant Time Capitalization Date, a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan setting forth (as applicable) the number of, exercise or reference price, vesting date (or dates) and expiration date (or delivery date) of shares each outstanding equity award in respect of Company Ordinary Shares issued thereunderStock. With respect to each Stock Option, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) each grant of a Stock Option was duly authorized by all necessary corporate action, including, as applicable, approval by the Board of Directors, or a committee thereof, or a duly authorized delegate thereof, and any required approval by the stockholders of the Company by the necessary number of votes or written consents, and the award agreement governing such grant, if any, was duly executed and delivered by each party thereto within a reasonable time following the date on which such Stock Option was granted (the “Grant Date“), (ii) each such grant was made in compliance accordance with all applicable Laws and all the terms and conditions of the applicable Company Share Plan plan pursuant to which the grant was effectuated, the Exchange Act and all other applicable Laws, including the rules of NYSE, (iiiii) has an the per share exercise price per share of Company Ordinary Share equal to or greater each Stock Option was not less than the fair market value of a share of the applicable Company Ordinary Share Stock on the applicable Grant Date, (iv) each such grant was properly accounted for in all material respects in accordance with GAAP in the financial statements (including the related notes) of the Company and disclosed in accordance with the Exchange Act and all other applicable Laws, and (v) no modifications have been made to any such grants after the Grant Date.
(c) There are no preemptive or similar rights on the part of any holder of any class of securities of the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the stockholders of the Company or any of its Subsidiaries on any matter submitted to stockholders or a separate class of holders of capital stock. As of the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure LetterAgreement, (i) there are no allotted or issued options, warrants, rights (including conversion calls, rights, convertible or preemptive rights and rights exchangeable securities, “phantom” stock rights, stock appreciation rights, stock-based performance units, commitments, contracts, arrangements or undertakings of first refusal any kind relating to issued or similar rights) unissued capital stock or agreements, orally or in writing, to purchase or acquire from other securities of the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) its Subsidiaries to which the Company has no obligation or any of its Subsidiaries is a party or by which any of them is bound (contingent i) obligating the Company or otherwise) any of its Subsidiaries to purchaseissue, deliver, sell or transfer or repurchase, redeem or otherwise acquire acquire, or cause to be issued, delivered, sold or transferred or repurchased, redeemed or otherwise acquired, any shares of Capital Stockthe capital stock of, or other equity interests in, the Company or voting any of its Subsidiaries, any additional shares of capital stock of, or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of, or other equity interest in, the Company or any of its Subsidiaries, (ii) obligating the Company or any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking or (iii) that give any Person the right to receive any economic benefit or right similar to or derived from the economic benefits and rights accruing to holders of capital stock of, or other Person equity interests in, the Company or any of its Subsidiaries.
(d) Except for this Agreement and the Voting Agreement, there are no voting trusts, proxies or other agreements or understandings to pay which the Company is a party or is bound with respect to the voting, dividends or disposition of capital stock of the Company.
(e) Section 3.02(e) of the Company Disclosure Letter sets forth, as of the date of this Agreement, the name and jurisdiction of organization of each Subsidiary of the Company and sets forth a complete and accurate list of all outstanding securities of each Subsidiary and the registered and beneficial owner thereof. All of the outstanding shares of capital stock of, or other equity or voting interests in, each Subsidiary of the Company (except for directors’ qualifying shares or the like) are owned directly or indirectly, beneficially and of record, by the Company free and clear of all Liens, pledges, security interests and transfer restrictions, except for such transfer restrictions of general applicability as may be provided under the Securities Act of 1933, as amended (the “Securities Act“), and the rules and regulations promulgated thereunder, or other applicable securities Laws (including any dividend restriction on the right to vote, sell or otherwise dispose of such shares of capital stock or other equity or voting interests). Each outstanding share of capital stock of each Subsidiary of the Company that is held, directly or indirectly, by the Company is duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, and there are no subscriptions, options, warrants, rights, calls, contracts or other commitments, understandings, restrictions or arrangements relating to the issuance, acquisition, redemption, repurchase or sale of any shares of capital stock or other equity or voting interests of any Subsidiary of the Company, including any right of conversion or exchange under any outstanding security, instrument or agreement, any agreements granting any preemptive rights, subscription rights, anti-dilutive rights, rights of first refusal or similar rights with respect to any securities of any Subsidiary. None of the Subsidiaries has any outstanding equity compensation plans or policies relating to the capital stock of, or other equity or voting interests in, any Subsidiary of the Company. Neither the Company nor any of its Subsidiaries has any obligation to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to payments based on the price or value of the Company Capital Stock or the value any securities of any Subsidiary of the Company or dividends paid thereon or revenues, earnings or financial performance or any part thereofsimilar attribute of any Subsidiary of the Company.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Cole Kenneth Productions Inc), Merger Agreement (Cole Kenneth Productions Inc)
Capitalization. (a) The whole authorized capital stock of the allotted Company consists of 15,000,000 Company Shares and 700,000 shares of Company Preferred Stock. As of the close of business on October 16, 2020, 2020 (the “Capitalization Date”), (i) 7,826,180 Company Shares were issued and 7,344,955 Company Capital Shares were outstanding; (ii) no shares of Company Preferred Stock were issued and outstanding; and (iii) 481,225 Company Shares were held by the Company in its treasury. From the Capitalization Date to the execution of this Agreement, the Company has not issued any Company Shares except pursuant to the exercise of Company Options or the settlement of Company RSU Awards outstanding as of the Relevant Time consists of (i)64,244 shares of Company Ordinary Shares and (ii) 17,898 shares of Seed Preferred SharesCapitalization Date in accordance with their terms. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital All of the Company, are the whole of the allotted and issued shares of outstanding Company Capital Stock and Shares have been duly authorized and validly issued, issued and are fully paid up and no sum is outstanding in respect nonassessable and are free of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))preemptive rights.
(b) As of the close of business on the Capitalization Date, (i) 212,187 Company Shares were subject to issuance pursuant to Company Options granted and outstanding under the Company Stock Plans, (ii) 12,666 Company Shares were subject to issuance pursuant to Company RSU Awards granted and outstanding under the Company Stock Plans, (iii) 1,109,982 Company Shares were reserved for future issuance under the Company Stock Plans. Section 5.3(b4.2(b) of the Company Disclosure Letter sets forth contains a true, correct and complete list, as of the Relevant Time a complete and accurate list Capitalization Date, of (A) the holders name of each holder of Company Capital StockOptions and Company RSU Awards, showing (B) the number of shares of such Capital Stock, Company Shares subject to each outstanding Company Option and the class or series of such shares, Company RSU Award held by such holder, (C) the name of the Company Stock Plan under which the Company Option or Company RSU Award was granted, (D) the grant or issuance date of each such shareholder andCompany Option and Company RSU Award, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if anyE) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the price and expiration date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option thereof.
(i) was granted in compliance with all applicable Laws and all terms and conditions of With respect to each Company Option, the applicable Company Share Plan and (ii) has an per share exercise price per share of Company Ordinary Share equal to or greater was not less than the fair market value (within the meaning of Section 409A of the Code) of a share of Company Ordinary Share on the date of such grantgrant and (ii) each Company Option intended to qualify as an “incentive stock option” under Section 422 of the Code so qualifies. Each Company Option and Company RSU Award may by its terms be treated at the Effective Time as set forth in Section 3.7.
(d) Except as set forth for the Company Options and the Company RSU Awards referenced in this the first sentence of Section 5.3 or in Section 5.3(d4.2(b) of the Disclosure Letterabove, there are no outstanding (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights securities of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities of its Subsidiaries convertible into or exchangeable for shares of Company Capital Stockcapital stock or voting securities or ownership interests in the Company, (ii) options, warrants, rights or other agreements, arrangements or commitments requiring the Company has to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in, or securities convertible into or exchangeable for or with a value that is linked to (including any “phantom” stock, “phantom” stock rights, stock appreciation rights, stock-based units or any other similar interests), capital stock or voting securities or other ownership interests in the Company (or, in each case, the economic equivalent thereof), (iii) obligations requiring 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, voting securities or other ownership interests in the Company (the items in clauses (i), (ii) and (iii), together with the shares of capital stock of the Company, being referred to collectively as “Company Securities”) or (iv) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the Company Shares.
(e) There are no obligation (contingent outstanding obligations of the Company or otherwise) any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities Laws, including the Securities Act and “blue sky” Laws.
(f) The Company or another of its Subsidiaries is the record and beneficial owner of all of the outstanding shares of Capital Stockcapital stock of, or other equity or voting interest interests in, each Subsidiary of the Company Company, free and clear of any Lien (other than Permitted Liens), which shares have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights, and there are no irrevocable proxies with respect to any such shares. As of the date hereof, with respect to each Subsidiary of the Company, there are no securities, options, warrants, rights or any other Person agreements or to pay any dividend commitments or to make any other distribution obligations, in respect each case of its Capital Stockthe type described in clauses (i), (ii) and (iii) of the definition of Company has not at Securities, with respect to any time purchasedcapital stock, redeemed voting securities or repaid other ownership interests in any Subsidiary of the Company Capital Stock or otherwise agreed to reduce (together with the shares of capital stock of the Subsidiaries of the Company, the “Subsidiary Securities”).
(g) Neither the Company nor any class of its issued share capital Subsidiaries has outstanding bonds, debentures, notes or carried out any transaction other similar obligations, the holders of which have the right to vote (or which are convertible into or exercisable for securities having the effect of a reduction of capital, and right to vote) with the Company Stockholders on any matter.
(ivh) there No Company Shares are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in held by any way to the price Subsidiary of the Company.
(i) The Company Capital Stock has taken all actions necessary to (i) render the Company Stockholders’ Right Plan inapplicable to this Agreement and the transactions contemplated by this Agreement; (ii) ensure that in connection with the transactions contemplated by this Agreement, (A) neither Parent, Merger Sub or any of their “Affiliates” or “Associates” (each as defined in the value Company Stockholders’ Rights Plan) is or will be (1) a “Beneficial Owner” of or deemed to “beneficially own” and have “Beneficial Ownership” (each as defined in the Company Stockholders’ Rights Plan) of any securities of the Company or any part thereof(2) an “Acquiring Person” (as defined in the Company Stockholders’ Rights Plan) and (B) none of a “Shares Acquisition Date,” a “Distribution Date” (as such terms are defined in the Company Stockholders’ Rights Plan) or a “Triggering Event” (as defined in the Company Stockholders’ Rights Plan) occurs or will occur, in each case of clauses (A) and (B), solely by reason of the execution of this Agreement, or the consummation of the Merger, the Offer, or the other transactions contemplated by this Agreement; and (iii) provide that the “Final Expiration Date” (as defined in the Company Stockholders’ Rights Plan) shall occur immediately prior to the Effective Time, but only if the Effective Time shall occur. To the Company’s Knowledge, no Person is an “Acquiring Person” and no “Share Acquisition Date,” “Distribution Date” (as such terms are defined in the Company Stockholders’ Rights Plan) or “Triggering Event” (as defined in the Company Stockholders’ Rights Plan) has occurred. The Company Stockholders’ Rights Plan has not been amended or modified.
Appears in 3 contracts
Sources: Merger Agreement (Endo, Inc.), Merger Agreement (Biospecifics Technologies Corp), Merger Agreement (Endo International PLC)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 i) 145,000,000 shares of common stock of the Company, par value $0.01 per share (the “Company Ordinary Shares Common Stock”), and (ii) 17,898 5,000,000 shares of Seed preferred stock, par value $0.01 per share (the “Company Preferred SharesStock”). The Sale Shares rights and privileges of the Company Common Stock and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of Company Preferred Stock are as set forth in the Company’s certificate of incorporation as currently in effect. At the close of business on December 30, are 2020 (the whole of the allotted and issued “Capitalization Date”): (A) 53,822,535 shares of Company Capital Common Stock were issued and have been duly authorized outstanding; (B) an aggregate of 1,044,100 shares of Company Common Stock were subject to outstanding Company RSU Awards; (C) an aggregate of 1,252,266 shares of Company Common Stock were subject to outstanding Company PSU Awards (assuming maximum achievement); (D) an aggregate of 699,297 shares of Company Common Stock were reserved by the Company for issuance under the ESPP; and validly (E) zero shares of Company Preferred Stock were issued and outstanding. Since the Capitalization Date through the date hereof, other than vesting of Company Equity Awards pursuant to the existing terms of such awards, neither the Company nor any of its Subsidiaries has (1) issued, and are fully delivered, sold, announced, pledged, transferred, subjected to any Lien or granted or otherwise encumbered or disposed of any Company Securities or incurred any obligation to make any payments to any Person based on the price or value of any Company Securities or (2) established a record date for, declared, set aside for payment or paid up and no sum is outstanding any dividend on, or made any other distribution in respect of of, any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))Securities.
(b) Section 5.3(bPart 4.05(b) of the Company Disclosure Letter Schedule sets forth forth, as of the Relevant Time close of business on the Capitalization Date, a complete and accurate correct list of (i) all outstanding Company RSU Awards, including the holders respective name of Company Capital Stockthe holder, showing the number of shares of such Capital Stockgrant date, the vesting schedule, terms and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Sharesconditions, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Common Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect subject to each Company Share OptionRSU Award and the distribution dates for such shares and (ii) all outstanding Company PSU Awards, including the respective name of the holder, the Company Share Plan under which it was grantedgrant date, the vesting schedule, terms and conditions, the performance period, and the maximum number of shares of Company Ordinary Shares Common Stock subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grantPSU Award.
(dc) Except as set forth in this Section 5.3 4.05, and for changes since the Capitalization Date resulting from settlement of Company Equity Awards outstanding on such date or in granted thereafter as permitted under Section 5.3(d) of the Disclosure Letter6.01(b)(iii), there are no outstanding (i) there are no allotted shares of capital stock or issued voting securities or other Equity Interests of the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or other Equity Interests of the Company, (iii) options, warrants, warrants or other rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, arrangements to purchase or acquire from the Company, or other obligations or commitments of the Company to issue, transfer, dispose or sell any shares of Company Capital Stockcapital stock or other voting securities or Equity Interests in, or any securities convertible into or exchangeable for capital stock or other voting securities or Equity Interests in, the Company, (iv) restricted shares, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or Equity Interests in, the Company (the items in clauses (i)-(iv) being referred to collectively as the “Company Securities”), (v) voting trusts, proxies or other similar agreements or understandings to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound with respect to the disposition or voting of any shares of capital stock of the Company Capital Stockor any of its Subsidiaries or (vi) contractual obligations or commitments of any character restricting the transfer of, or requiring the registration for sale of, any Company Securities or any securities of the Company’s Subsidiaries. Neither the Company nor any of its Subsidiaries have issued any bonds, debentures, notes or other indebtedness (iix) having the right to vote on any matters on which stockholders or equityholders of the Company or any of its Subsidiaries may vote (or which is convertible into, or exchangeable for, securities having such right), or (y) the value of which is directly based upon or derived from the capital stock, voting securities or other Equity Interests of the Company has or any of its Subsidiaries. There are no obligation (contingent outstanding obligations or otherwise) commitments of the Company or any of its Subsidiaries to purchaseissue, grant, repurchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Securities except for acquisitions of shares of Company Common Stock by the Company as satisfaction of the applicable exercise price and/or withholding taxes pursuant to the terms of Company Equity Awards or otherwise agreed to reduce any class in accordance with the existing terms of its issued share capital or carried out any transaction having the effect of a reduction of capitalESPP. All Company Equity Awards and rights under the ESPP were granted in accordance with the applicable Company Stock Plans, the ESPP, all Applicable Laws, and (iv) there all applicable securities exchange rules. All Company Equity Awards are no allottedevidenced by written award agreements, issued or authorized stock appreciation rightsin each case, phantom stock awards or other rights substantially in the forms that are linked in any way have been Made Available to the price Parent. No Subsidiary of the Company Capital owns any Company Securities.
(d) All outstanding shares of Company Common Stock have been, and all shares that may be issued pursuant to the Company Stock Plan or the value ESPP, when issued in accordance with the respective terms thereof, duly authorized and validly issued and are (or, in the case of shares that have not yet been issued, will be) fully paid, nonassessable and free of preemptive rights, and were not issued in violation of and are not subject to any right of rescission or right of first refusal, and have been offered, issued, sold and delivered by the Company or any part thereofin compliance with all requirements of Applicable Law.
Appears in 3 contracts
Sources: Merger Agreement (ATN International, Inc.), Merger Agreement (Alaska Communications Systems Group Inc), Merger Agreement (Alaska Communications Systems Group Inc)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of 510,000,000 shares, of which 500,000,000 shares are designated Common Stock and 10,000,000 shares are designated preferred stock, par value $0.001 per share (i)64,244 the “Preferred Stock”). As of December 31, 2012: (i) 40,121,660 shares of Company Ordinary Shares Common Stock and no shares of Preferred Stock, were issued and outstanding; and (ii) 17,898 no shares of Seed Common Stock or Preferred SharesStock were held in treasury. The Sale Shares and the shares held by the Previous Sellers constitute the entire All of such issued and to be outstanding shares are validly issued share capital of the Company, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and validly issued, and are fully paid up and no sum is nonassessable. No issued and outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement Company’s capital stock are subject to a repurchase or arrangement for the creation, constitution, grant redemption right or issuance right of any Relevant Securities first refusal or condition of forfeiture in respect favor of the Company (other than the Sale Shares and the A Pref Shares))Company.
(b) Except as set forth on Section 5.3(b3.2(b) of the Company Disclosure Letter Schedule, there are no outstanding subscriptions, options, contracts, commitments, restrictions, stock appreciation rights, phantom stock, rights or warrants, including any right of conversion or exchange under any outstanding security, instrument or other agreement and also including any rights plan or other anti-takeover agreement, obligating the Company to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of the Company’s capital stock. There are no voting trusts, proxies or other agreements or understandings to which the Company is a party or is bound with respect to the voting of any shares of the Company’s capital stock. Section 3.2(b) of the Company Disclosure Schedule sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital StockCommon Stock issuable, as of the date of this Agreement, upon (i) the exercise of outstanding Company Options and Company Warrants, and (ii) the class or series vesting of such shares, held by each such shareholder and, with respect to shares other than outstanding Company Ordinary Restricted Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no Options, the Company Warrants and Company Restricted Shares are collectively referred to as “Company Stock-Based Securities”. All shares of Common Stock issuable upon exercise of Company Capital Options, Company Warrants or other Company Stock-Based Securities have been duly reserved for issuance by the Company, and upon issuance of such shares of Common Stock in its treasury. All accordance with the terms of the allotted and issued shares of applicable Company Capital Stock have been offeredEquity Plan or other arrangement, will be duly authorized, validly issued and sold by fully paid and non-assessable and will not be subject to any preemptive or similar rights. No Company Option was granted with an exercise price less than the fair market value of the Company in compliance and accordance with, and no transfer (or purported transfer) Option on the date of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Lawsgrant.
(c) Section 5.3(c3.2(c) of the Company Disclosure Letter Schedule sets forth as of the Relevant Time a complete and accurate list of all record holders of outstanding Company Share OptionsStock-Based Securities, indicating, indicating with respect to each Company Share Option, of the Company Share Plan under which it was grantedStock-Based Securities, (i) the number of shares of Company Ordinary Shares Common Stock subject to such Company Share OptionStock-Based Securities (whether by exercise, the exercise priceconversion or vesting), the date of grantheld by each such record holder, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) the exercise or conversion price, date of issuance or grant and expiration date, if any, of such Company Stock-Based Securities, and (iii) the particular Company Equity Plan pursuant to which such Company Stock-Based Security was granted or issued. The Company has an exercise price per share made available to Parent accurate and complete copies of each of the Company Ordinary Share equal Equity Plans and the standard form of all agreements and instruments relating to or greater than issued under each Company Equity Plan and all agreements and instruments relating to or issued under the fair market value of a share of Company Ordinary Share on the date of Equity Plans that differ in any material respect from such grantstandard form agreements.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) As of the Disclosure Letterdate hereof, (i) no bonds, debentures, notes or other indebtedness of the Company having the right to vote are issued or outstanding, and (ii) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights outstanding contractual obligations of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company Company’s capital stock or any other Person or to pay equity securities of any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofSubsidiary.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Zipcar Inc), Merger Agreement (Avis Budget Group, Inc.)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 150,000,000 shares of Company Ordinary Shares Common Stock and 2,000,000 shares of preferred stock, par value $.01 per share, consisting of 250,000 shares of Series A Convertible Preferred Stock, 100,000 shares of Series B Convertible Preferred Stock and 1,650,000 shares of undesignated preferred stock. As of December 31, 2005 (the "CAPITALIZATION DATE") (i) 49,581,917 shares of Company Common Stock (which includes outstanding Restricted Stock Awards) were issued and outstanding, (ii) 17,898 Company Stock Options to acquire 710,102 shares of Seed Preferred Shares. The Sale Shares and Company Common Stock were outstanding, (iii) no shares of Company Common Stock were held in the shares held by the Previous Sellers constitute the entire issued and to be issued share capital treasury of the Company, are the whole of the allotted and issued (iv) 5,500,000 shares of Company Capital Common Stock were reserved for issuance under the Warrant, and (v) no shares of the Company's Series A Convertible Preferred Stock and have been 20,063 shares of the Company's Series B Convertible Preferred Stock, which are convertible into approximately 3,039,745 shares of Company Common Stock, were issued and outstanding. All of the shares of Company Common Stock and the Company's Series B Convertible Preferred Stock outstanding on the date of this Agreement are duly authorized and authorized, validly issued, and are fully paid up and no sum is nonassessable. Since the Capitalization Date through the date of this Agreement, other than (A) in connection with the issuance of Common Shares pursuant to the exercise of outstanding Company Stock Options and Warrants, and Restricted Stock Awards, as set forth in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect Section 3.03 of the Company Disclosure Schedule, and (nor is B) in connection with the surrender to the Company of shares issued upon the "net exercise" of such Company Stock Options or Warrants and shares surrendered to the Company in connection with the payment of withholding Tax upon the vesting of such Restricted Stock Awards, and (C) the grant on March 31, 2006 of 450,000 shares of Company Common Stock pursuant to Restricted Stock Awards, there any agreement has been no change in the number of Shares of outstanding or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect reserved capital stock of the Company (other than or the Sale Shares and the A Pref Shares))number of outstanding Company Stock Options, Warrant or Restricted Stock Awards.
(b) Section 5.3(b) 3.03 of the Company Disclosure Letter sets forth Schedule describes (i) all outstanding Company Stock Options and other rights to purchase or receive shares of Company Common Stock under the Company Equity Plans, as of the Relevant Time a complete Capitalization Date, together with the expiration date, exercise price and accurate list number of shares subject thereto, (ii) the holders Warrant, together with the expiration date, exercise or strike price and number of Company Capital Stockshares subject thereto, showing (iii) the number of outstanding unvested shares of such Capital constituting Restricted Stock Awards for Company Common Stock, as of the Capitalization Date, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, (iv) the number of shares of Restricted Stock Awards for Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Common Stock in its treasury. All that, as of the allotted and issued shares date of Company Capital Stock this Agreement, have been offered, validly issued and sold approved by the Company in compliance and accordance withBoard, and no transfer (or purported transfer) of any shares of Company Capital Stock has but have not yet been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Lawsissued.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) 3.03 of the Company Disclosure LetterSchedule, there are no (i) there are no allotted or issued subscriptions, calls, contracts, options, warrantswarrants or other rights, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally arrangements, understandings, restrictions or in writing, commitments of any character to purchase or acquire from which the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound relating to the issued or unissued capital stock or equity interests of the Company or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any shares of Company Capital Stockcapital stock of, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, or other equity interests in or voting interest indebt securities of, the Company or any Subsidiary, (ii) securities of the Company or securities convertible, exchangeable or exercisable for shares of capital stock or equity interests of the Company or any Subsidiary, or (iii) equity equivalents, stock appreciation rights or phantom stock, ownership interests in the Company or any Subsidiary or similar rights. All shares of Company Common Stock subject to the Company Stock Options and Warrant set forth in Section 3.03 are duly authorized and, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be validly issued, fully paid and nonassessable and free of preemptive (or similar) rights. There are no outstanding contractual obligations or rights of the Company or any Subsidiary to repurchase, redeem (other Person than the redemption rights of the Company Preferred Stock) or otherwise acquire any securities or equity interests of the Company or any Subsidiary or to pay vote or to dispose of any shares of capital stock or equity interests of the Company or any Subsidiary except pursuant to the terms of Restricted Stock Awards. Except as set forth in Section 3.03 of the Company Disclosure Schedule, none of the Company or any Subsidiary is a party to any stockholders' agreement, voting trust agreement or registration rights agreement relating to any equity securities or equity interests of the Company or any Subsidiary or any other Contract relating to disposition, voting or dividends with respect to any equity securities or equity interests of the Company or of any Subsidiary. No dividends on the Company Common Stock have been declared or paid from December 31, 2005 through the date of this Agreement. All of the Shares have been issued by the Company in compliance with applicable federal securities Law. There are no outstanding bonds, debentures, notes or other Indebtedness of the Company or any of its Subsidiaries having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matter for which the Company's stockholders may vote.
(d) Each outstanding share of capital stock (or other unit of equity interest) of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable (where such concepts are legally applicable) and was issued free of preemptive (or similar) rights, and, except as set forth in Section 3.01 of the Company Disclosure Schedule, each such share or unit (other than directors' qualifying shares in the case of non-United States Subsidiaries) is owned by the Company, by one or more wholly-owned Subsidiaries, or by the Company and one or more wholly-owned Subsidiaries, free and clear of all options, rights of first refusal, agreements, limitations on the Company's or any Subsidiary's voting, dividend or transfer rights, charges and other encumbrances or Liens of any nature whatsoever.
(e) Section 3.03 of the Company Disclosure Schedule also lists any and all Persons of which the Company directly or indirectly owns an equity or similar interest, or an interest convertible into or exchangeable or exercisable for an equity or similar interest, of, to the Company's knowledge, greater than 5% but less than 50% (collectively, the "INVESTMENTS"). Except as set forth in Section 3.03 of the Company Disclosure Schedule, the Company or a Subsidiary, as the case may be, owns all Investments free and clear of all Liens, and there are no outstanding contractual obligations of the Company or any Subsidiary permitting the repurchase, redemption or other acquisition of any of its interest in the Investments or requiring the Company or any Subsidiary to provide funds to, make any other distribution investment (in the form of a loan, capital contribution or otherwise) in, provide any guarantee with respect to, or assume, endorse or otherwise become responsible for the obligations of, any Investment.
(f) The General Partner is a single member Delaware limited liability company, and the sole member of its Capital Stockthe General Partner is a wholly-owned Subsidiary of the Company.
(g) As of the Capitalization Date (i) 3,972,500 Common Units were issued and outstanding, of which 2,500 were owned of record and beneficially by the Company or any Subsidiary, (ii) 3,322,266 Subordinated Units were issued and outstanding, of which 2,872,266 were owned of record and beneficially by Subsidiaries of the Company and 450,000 were owned, to the Company's knowledge, by an Affiliate of Parent, (iii) the Company has not at any time purchased, redeemed or repaid any all of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having General Partner Interests, which include all Incentive Distribution Rights, are owned by the effect of a reduction of capitalGeneral Partner, and (iv) there are no allottedCommon Units or Subordinated Units were owned by, issued or authorized stock appreciation rightsheld in the treasury of, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofTransMontaigne Partners.
Appears in 3 contracts
Sources: Merger Agreement (Morgan Stanley), Merger Agreement (Morgan Stanley), Merger Agreement (Morgan Stanley)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 30,000,000 shares of Company Ordinary Shares Common Stock and (ii) 17,898 1,000,000 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellerspreferred stock, no Relevant Securities exist in respect par value, of the Company (nor is the “Company Preferred Stock”). As of the close of business on March 1, 2012 (the “Capitalization Date”), there any agreement or arrangement for were 16,859,825 shares of Company Common Stock outstanding (which includes 103,500 Company Restricted Shares), 541,650 shares of Company Common Stock subject to outstanding Company Stock Options and 42,750 shares of Series A Company Preferred Stock outstanding. Since the creationCapitalization Date and through the date of this Agreement, constitutionexcept in connection with this Agreement and the transactions contemplated hereby, grant or issuance of any Relevant Securities and as set forth in respect Section 3.3 of the Company (other than the Sale Shares and the A Pref Shares)).
(b) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary SharesSchedule, the number of shares of Company Ordinary Shares has not (if any1) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of issued or authorized the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) issuance of any shares of Company Capital Common Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of or Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Preferred Stock, or any securities convertible into or exchangeable or exercisable for shares of Company Capital Common Stock or Company Preferred Stock, (ii2) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire reserved for issuance any shares of Capital Company Common Stock or Company Preferred Stock or (3) repurchased or redeemed, or authorized the repurchase or redemption of, any shares of Company Common Stock or Company Preferred Stock. As of the close of business on the Capitalization Date, other than in respect of shares of Common Stock reserved for issuance in connection with any stock option or other equity incentive plan in respect of which an aggregate of no more than 854,111 shares of Common Stock have been reserved for issuance and an additional 799,170 shares reserved for issuance under the Stock Purchase Plan, no shares of Company Common Stock or voting interest inCompany Preferred Stock were reserved for issuance. All of the issued and outstanding shares of Company Common Stock or Company Preferred Stock have been duly authorized and validly issued and are fully paid and nonassessable, and have been issued in compliance with all federal and state securities laws, and were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities. No bonds, debentures, notes or other indebtedness having the right to vote on any matters on which the shareholders of the Company may vote (“Voting Debt”) are issued and outstanding. As of the date of this Agreement, except (A) pursuant to any cashless exercise provisions of any Company stock options or pursuant to the surrender of shares to the Company or the withholding of shares by the Company to cover tax withholding obligations under the Benefit Plans, (B) the warrant to purchase up to 1,623,418 shares of Company Common Stock sold by the Company to the Treasury pursuant to that certain Letter Agreement and Securities Purchase Agreement dated as of December 5, 2008 (the “Treasury Warrant”) or (C) as set forth elsewhere in this Section 3.3 or on the Company Disclosure Schedule, the Company does not have and is not bound by any outstanding subscriptions, options, calls, commitments or agreements of any character calling for the purchase or issuance of, or securities or rights convertible into or exchangeable for, any shares of Company Common Stock or Company Preferred Stock or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value equity securities of the Company or Voting Debt or any part thereofsecurities representing the right to purchase or otherwise receive any shares of capital stock of the Company (including any rights plan or agreement). Section 3.3 of the Company Disclosure Schedule sets forth a table listing the outstanding series of trust preferred and subordinated debt securities of the Company and the Bank and certain information with respect thereto, including the holders of such securities as of the date of this Agreement if known to the Company, and all such information is accurate and complete to the Knowledge of the Company and the Bank.
Appears in 3 contracts
Sources: Merger Agreement (Capital Bank Financial Corp.), Merger Agreement (Capital Bank Financial Corp.), Merger Agreement (Southern Community Financial Corp)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 100,000,000 shares of Company Ordinary Shares Common Stock and (ii) 17,898 3,030,303 shares of Seed preferred stock (the “Company Preferred SharesStock,” and together with the Company Common Stock, the “Company Stock”). The Sale Shares Immediately prior to the Closing Date, and without giving effect to the transactions contemplated by this Agreement or any of the other agreements contemplated hereby (collectively, the “Transaction Documentation”), 71,650,622 shares held by the Previous Sellers constitute the entire of Company Common Stock are issued and outstanding, and no shares of Company Preferred Stock are issued or outstanding (the holder of all 3,030,303 share of Series A Preferred Stock outstanding as of December 31, 2022 has agreed that all such shares will convert into an equivalent number of shares of Company Common Stock in connection with the Closing and thus no such shares are issued and outstanding as of immediately prior to be the Closing Date). No other shares of Company Stock are issued share capital or outstanding, and no shares of Company Common Stock or shares of Company Preferred Stock are held in the treasury of the Company. Immediately prior to the Closing Date, there are the whole of the allotted and issued will be outstanding options to purchase shares of Company Capital Common Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect as set forth on Section 2.2 of the Company Disclosure Schedule (nor is “Company Options”). Immediately prior to the Closing Date, there any agreement or arrangement for the creationare and will be outstanding, constitution, grant or issuance no warrants to purchase shares of any Relevant Securities in respect Company Common Stock as set forth on Section 2.2 of the Company Disclosure Schedule (other than the Sale Shares and the A Pref Shares“Company Warrants”)).
(b) . Section 5.3(b) 2.2 of the Company Disclosure Letter Schedule sets forth as of the Relevant Time a complete and accurate list of (i) all stockholders of the holders Company, indicating the number and class of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, Stock held by each such shareholder andstockholder, with respect to shares (ii) all stock option plans and other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All stock or equity-related plans of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the (“Company in compliance and accordance with, and no transfer (or purported transferEquity Plans”) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved Common Stock remaining available for future issuance awards thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) all outstanding Company Options and Company Warrants, indicating (A) the holder thereof, (B) the number of shares of Company Common Stock subject to each Company Option and Company Warrant, (C) the Company has not at Equity Plan under which each Company Option was issued, (D) the exercise price, date of grant, vesting schedule and expiration date for each Company Option or Company Warrant, and (E) any time purchased, redeemed or repaid any terms regarding the acceleration of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capitalvesting, and (iv) all outstanding debt convertible into Company Stock, indicating (A) the date of issue, (B) the holder thereof, (C) the unpaid principal amount thereof, (D) the interest rate thereon, (E) the accrued and unpaid interest thereon, (F) the number and class of Company Stock into which such debt is convertible, and (G) the conversion price thereof. All of the issued and outstanding shares of Company Common Stock and Company Preferred Stock are, and all shares of Company Common Stock that may be issued upon exercise of Company Options or Company Warrants or conversion of convertible debt will be (upon issuance in accordance with their terms), duly authorized, validly issued, fully paid, nonassessable and, effective as of the Effective Time, free of all preemptive rights, and have been or will be issued in accordance with applicable laws, including but not limited to, the Securities Act. Other than the Company Options and Company Warrants and convertible debt listed in Section 2.2 of the Company Disclosure Schedule, there are no allottedoutstanding or authorized options, issued warrants, securities, rights, agreements or commitments to which the Company is a party or which are binding upon the Company providing for the issuance or redemption of any of Company Stock or pursuant to which any outstanding Company Stock is subject to vesting. There are no outstanding or authorized stock appreciation rightsappreciation, phantom stock awards or other similar rights that are linked in any way with respect to the price Company. Other than as listed in Section 2.2 of the Company Capital Stock Disclosure Schedule, immediately prior to the Closing Date there are no agreements to which the Company is a party or by which it is bound with respect to the value voting (including without limitation voting trusts or proxies), registration under the Securities Act, or sale or transfer (including without limitation agreements relating to pre-emptive rights, rights of first refusal, co-sale rights or “drag-along” rights) of any securities of the Company. To the knowledge of the Company, immediately prior to the Closing Date there are no agreements among other parties, to which the Company is not a party and by which it is not bound, with respect to the voting (including without limitation voting trusts or proxies) or sale or transfer (including without limitation agreements relating to rights of first refusal, co-sale rights or “drag-along” rights) of any part thereofsecurities of the Company. All of the issued and outstanding shares of Company Common Stock were issued in compliance in all material respects with applicable securities laws.
Appears in 3 contracts
Sources: Share Exchange Agreement (Neonc Technologies Holdings, Inc.), Share Exchange Agreement (Neonc Technologies Holdings, Inc.), Share Exchange Agreement (Neonc Technologies Holdings, Inc.)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 i) 300,000,000 shares of Company Ordinary Shares Common Stock and (ii) 17,898 30,000,000 shares of Seed Company Preferred SharesStock. The Sale Shares and As of the date hereof, (1) 74,082,150 shares held by the Previous Sellers constitute the entire of Company Common Stock were issued and to be issued share capital outstanding, all of which are validly issued, fully paid and nonassessable, (2) 100 shares of the Company's Series A Convertible Redeemable Preferred Stock were issued and outstanding, all of which are the whole of the allotted validly issued, fully paid and issued nonassessable, and (3) no shares of Company Capital Common Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect treasury of the Company. The Company (nor is there any agreement has no other capital stock authorized, issued or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))outstanding.
(b) Section 5.3(bAs of February 11, 2000, (i) 6,731,500 shares of Company Common Stock were subject to issuance pursuant to outstanding Company Stock Options, (ii) 4,122,129 shares of Company Common Stock were subject to issuance pursuant to outstanding Company Warrants and (iii) 812,184 shares of Company Common Stock were reserved for issuance upon the conversion of shares of Series A Convertible Redeemable Preferred Stock. The Company Disclosure Letter sets forth forth, with respect to the Company Stock Options outstanding as of February 11, 2000, the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the aggregate number of shares of such Capital Stock, Company Common Stock subject to Company Stock Options under each Company Stock Option Plan and the class or series weighted average exercise price of such sharesCompany Stock Options. The Company Disclosure Letter also lists the names of all individuals or entities who own Company Warrants, held by each such shareholder and, together with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares Common Stock subject to such Company Warrants and the exercise prices of such Company Warrants. No options, warrants or other rights to acquire shares of Company Common Stock have been granted from February 11, 2000 to the date of this Agreement.
(if anyc) into which such Except for (i) Company Stock Options granted pursuant to the Company Stock Option Plans and (ii) the Company Warrants, there are no options, warrants or other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock of the Company or any Company Subsidiary or obligating the Company or any Company Subsidiary to issue or sell any shares are convertibleof capital stock of, or other equity interests in, the Company or any Company Subsidiary. The Company holds no All shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Optionissuance as aforesaid, upon issuance on the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. There are no outstanding contractual obligations of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) Subsidiary to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class capital stock of its issued any Company Subsidiary. Each outstanding share of capital stock of each Company Subsidiary is duly authorized, validly issued, fully paid and nonassessable and each such share owned by the Company or carried out another Company Subsidiary is free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on the Company's or such other Company Subsidiary's voting rights, charges and other encumbrances of any transaction having the effect of a reduction of capital, and (iv) there nature whatsoever. There are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value outstanding contractual obligations of the Company or any part thereofCompany Subsidiary to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Company Subsidiary, other than a Company Subsidiary that is wholly owned by the Company and other Company Subsidiaries, or any other Person.
(d) On a fully exercised and converted to Company Common Stock basis, the number of shares of Company Common Stock outstanding on the date hereof would be 85,747,963, of which 50,763,375 are owned by ASC. The weighted average exercise price of the Company Stock Options and Company Warrants outstanding on the date hereof is no less than $21.79 per share of Company Common Stock.
(e) All of the capital stock of ASC is owned of record and beneficially by Medical Manager. Such capital stock consists solely of ASC Common Stock.
Appears in 3 contracts
Sources: Merger Agreement (Medical Manager Corp/New/), Merger Agreement (Careinsite Inc), Merger Agreement (Healtheon Webmd Corp)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 i) 100,000,000 shares of Company Ordinary Shares Common Stock and (ii) 17,898 10,000,000 shares of Seed preferred stock, par value $0.001 per share, (“Company Preferred SharesStock”). The Sale Shares As of the close of business on March 27, 2015 (the “Capitalization Date”): (A) 20,874,966 shares of Company Common Stock were issued and the outstanding; (B) no shares of Company Preferred Stock were issued or outstanding; (C) 96,712 shares of Company Common Stock were held by the Previous Sellers constitute the entire issued and Company in its treasury; (D) there were outstanding Company Options to be issued share capital of the Company, are the whole of the allotted and issued purchase 3,108,274 shares of Company Capital Common Stock; (E) 386,570 shares of Company Common Stock were subject to issuance pursuant to outstanding Company RSUs (which includes the maximum number of shares of Company Common Stock deliverable under Company RSUs with vesting based upon performance criteria); (F) 1,004,247 shares of Company Common Stock were reserved for future issuance under the Stock Plans. Such issued and outstanding shares of Company Common Stock have been been, and all shares that may be issued pursuant to any Stock Plan or as contemplated or permitted by this Agreement will be, when issued in accordance with the respective terms thereof, duly authorized and validly issued, and are or in the case of shares that have not yet been issued, will be, fully paid up and no sum is outstanding in respect nonassessable and free of any Sale Share preemptive rights. The Company has made available to Parent or share held by any Previous Sellerits counsel accurate and complete copies of the Stock Plans. Save for The Stock Plans are the Sale Shares and the shares in only plans or programs the Company held by the Previous Sellersor any Company Subsidiaries has maintained under which stock options, restricted shares, restricted share units, performance shares or other compensatory equity or equity-based awards have been granted and remain outstanding or may be granted. There are no Relevant Securities exist in respect outstanding contractual obligations of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect kind to redeem, purchase or otherwise acquire any outstanding shares of capital stock of the Company. Other than the Company Common Stock, there are no outstanding bonds, debentures, notes or other Indebtedness or securities of the Company having the right to vote (or, other than the Sale Shares and outstanding Company Equity Awards, convertible into, or exchangeable for, securities having the A Pref Shares))right to vote) on any matters on which stockholders of the Company may vote. Neither the Company nor any Company Subsidiary is a party to any voting agreement with respect to any Company securities or securities of any wholly-owned Company Subsidiary.
(b) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter3.2(a), (i) there are as of Capitalization Date, no allotted shares of capital stock or issued options, warrants, rights (including conversion or preemptive rights and rights other voting securities of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stockare issued, reserved for issuance or any securities convertible into or exchangeable for shares of Company Capital Stockoutstanding, (ii) there is no stockholder rights plan (or similar plan commonly referred to as a “poison pill”) or Contract under which the Company has no obligation (contingent is or otherwise) may become obligated to purchase, redeem sell or otherwise acquire issue any shares of Capital Stockits capital stock or any other securities, and (iii) there are no outstanding securities, options, bonds, debentures, notes, warrants, calls, rights, commitments, agreements, arrangements or other equity undertakings of any kind (whether or voting interest in, not currently exercisable) to which the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at Subsidiaries is a party or by which any time purchased, redeemed of them is bound obligating the Company or repaid any of the Company Capital Stock Subsidiaries to issue, deliver or otherwise agreed sell, or cause to reduce any class be issued, delivered or sold, additional shares of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value voting securities of the Company or of any part thereofof the Company Subsidiaries or obligating the Company or any of the Company Subsidiaries to issue, grant, extend or enter into any such security, option, warrant, call, right, commitment, agreement, arrangement or undertaking. The Company beneficially owns the Settlement Shares and Clal does not have the right to tender any of the Settlement Shares in the Offer (and Purchaser shall not be required to accept for payment and pay for any of the Settlement Shares in connection with the Offer).
Appears in 3 contracts
Sources: Merger Agreement (Hyperion Therapeutics Inc), Merger Agreement (Horizon Pharma PLC), Merger Agreement (Hyperion Therapeutics Inc)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 50,000,000 shares of Company Ordinary Common Stock and 2,500,000 shares of undesignated stock, no par value per share, of the Company (“Undesignated Stock”). At the close of business on October 8, 2010, (i) 11,133,221 shares of Company Common Stock were issued and outstanding (of which 148,676 Shares and were subject to RSAs credited to participants under their accounts under the Company Stock Plans), (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued 478,728.77 shares of Company Capital Common Stock were reserved for future issuance under the Company Stock Plans (of which 463,287 shares of Company Common Stock were subject to outstanding Options granted under the Company Stock Plans and 13,441.77 Shares were subject to DSAs credited to participants under their accounts under the Company Stock Plans), and (iii) no shares of Company Undesignated Stock were issued or outstanding. All Shares have been duly authorized and validly issued, issued and are fully paid up paid, non-assessable and no sum is outstanding in respect free of any Sale Share or share held by any Previous Sellerpreemptive rights. Save for the Sale Shares and the shares in Since October 8, 2010, the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares)).
(b) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and has not issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, its capital stock or any securities convertible into or exchangeable or exercisable for any shares of its capital stock, other than pursuant to Options, RSAs and DSAs referred to above that are outstanding as of the date of this Agreement and are set forth in Section 3.2(a) of the Company Capital StockDisclosure Schedule (together with the applicable exercise prices relating thereto as of the date of this Agreement and, to the extent permitted to comply with applicable Plan requirements and consistent with past practice, estimated adjusted exercise prices after giving effect to the payment of the Contingent Dividend) or that are hereafter issued without violation of Section 5.1 hereof.
(b) Exhibit 21 to the Latest 10-K sets forth a true, correct and complete list of all Subsidiaries of the Company. All the outstanding shares of capital stock of, or other equity interests in, each Subsidiary of the Company have been duly authorized and validly issued and are fully paid, non-assessable and free of preemptive rights, and are owned directly or indirectly by the Company free and clear of Liens. Other than the Subsidiaries of the Company set forth in Exhibit 21 to the Latest 10-K, (i) the Company does not have any Subsidiary or any equity or ownership interest (or any interest convertible or exchangeable or exercisable for, any equity or ownership interest), whether direct or indirect, in any Person, and (ii) the Company has is not obligated to make nor is it bound by any agreement or obligation to make any investment in or capital contribution in or on behalf of any other Person.
(c) Except as described in Section 3.2(a), there are no obligation (contingent stock appreciation rights, options, warrants, calls, rights, commitments, conversion privileges or otherwise) preemptive or other rights or agreements outstanding to purchase, redeem purchase or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofof its Subsidiaries or any securities or debt convertible into or exchangeable for capital stock of the Company or any of its Subsidiaries or obligating the Company or any of its Subsidiaries to grant, extend or enter into any such option, warrant, call, right, commitment, conversion privilege or preemptive or other right or agreement.
Appears in 3 contracts
Sources: Merger Agreement (Ulticom, Inc), Merger Agreement (Ulticom, Inc), Merger Agreement (Ulticom, Inc)
Capitalization. The authorized capital stock of the Company consists of 50,000,000 Company Common Shares and 1,000,000 shares of preferred stock. As of the date hereof, (a) The whole 14,484,976 Company Common Shares, all of the allotted which are validly issued, fully paid and issued Company Capital Stock as nonassessable and free of the Relevant Time consists of (i)64,244 shares of Company Ordinary Shares and (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire preemptive rights, are issued and to be issued share capital outstanding, (b) Company Common Shares are held in the treasury of the Company, (c) 1,985,033 Company Stock Options are outstanding pursuant to the whole Company Stock Plans, each such option entitling the holder thereof to purchase one Company Common Share, and 1,651,227 Company Common Shares are authorized and reserved for future issuance pursuant to the exercise of such Company Stock Options, (d) 13,345 Company Warrants are outstanding, each such Company Warrant entitling the holder thereof to purchase one Company Common Share, and 13,345 Company Common Shares are authorized and reserved for future issuance pursuant to the exercise of such Company Warrants and (e) no shares of preferred stock are issued and outstanding. All Company Warrants will be terminated as a result of the allotted and issued shares of Company Capital Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding Merger in respect of any Sale Share or share held by any Previous Selleraccordance with the terms thereof if not exercised prior to the Effective Time. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect Schedule 4.3 of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares)).
(b) Section 5.3(b) of the Disclosure Letter sets forth a true and complete list of the Company Stock Options outstanding as of the Relevant Time a complete and accurate list date of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, this Agreement with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date prices and periods of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunderexercisability. Except as set forth on Section 5.3(c) above, as of the Disclosure Letterdate of this Agreement, there is are no allotted or issued Company Share Option that has not been granted under a Company Share PlanStock Rights. No Company Share Option is exercisable for any class or series All shares of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all capital stock subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. There are no outstanding contractual obligations of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person Common Shares or to pay any dividend or to make any other distribution in respect thereof or to provide financing to, or make any investment (in the form of its Capital Stocka loan, (iiicapital contribution or otherwise) the Company has not at in, any time purchased, redeemed or repaid any Person. As of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having date hereof, except for the effect of a reduction of capitalStockholders Agreements, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards voting trusts or other rights that are linked in any way agreements or understandings to which the Company is a party with respect to the price voting of stock of the Company Capital Stock or the value of the Company or any part thereofCompany.
Appears in 3 contracts
Sources: Merger Agreement (Ivillage Inc), Merger Agreement (Ivillage Inc), Merger Agreement (Promotions Com Inc)
Capitalization. (a) The whole authorized capital stock of the allotted Company consists of 100,000,000 Company Shares and 1,000,000 shares of Company Preferred Stock. As of the close of business on October 28, 2022 (the “Capitalization Date”), (i) 45,097,340 Company Shares were issued and outstanding, (ii) no shares of Company Capital Preferred Stock were issued and outstanding and (iii) 3,327,821 Company Shares were held by the Company in its treasury. From the Capitalization Date to the execution of this Agreement, the Company has not issued any Company Shares except pursuant to the exercise of the purchase rights under the Company ESPP, the exercise of Company Options or the settlement of Company RSU Awards or Company PSU Awards outstanding as of the Relevant Time consists of (i)64,244 shares of Company Ordinary Shares and (ii) 17,898 shares of Seed Preferred SharesCapitalization Date in accordance with their terms. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital All of the Companyoutstanding Company Shares, are the whole of the allotted and issued shares of Company Capital Stock and (i) have been duly authorized and validly issued, and (ii) are fully paid up and no sum is outstanding in respect nonassessable and (iii) are free of any Sale Share preemptive rights or share held any similar right created by any Previous Seller. Save for applicable Law, the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect organizational documents of the Company (nor is there or any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of to which the Company (other than the Sale Shares and the A Pref Shares))is a party or otherwise bound.
(b) As of the close of business on the Capitalization Date, (i) 576,703 Company Shares were subject to issuance pursuant to Company Options granted and outstanding under the Company Stock Plan, (ii) 268,298 Company Shares were subject to issuance pursuant to Company RSU Awards granted and outstanding under the Company Stock Plan, (iii) 232,608 and 348,036 Company Shares were subject to issuance pursuant to Company PSU Awards granted and outstanding under the Company Stock Plan (assuming each of target and maximum achievement of all performance goals), (iv) 2,562,504 Company Shares were reserved for future issuance under the Company Stock Plan and (v) 4,631 Company Shares could be acquired with accumulated payroll deductions under the Company ESPP (assuming that the market price of a Company Share is equal to the Offer Price). Section 5.3(b4.2(b) of the Company Disclosure Letter sets forth contains a true, correct and complete list, as of the Relevant Time a complete and accurate list date hereof, of the holders name of each holder of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary SharesEquity Awards, the number of shares Company Shares subject to each outstanding Company Equity Award (assuming, if applicable, the target and maximum achievement of all performance goals) held by such holder, the grant or issuance date of each such Company Ordinary Shares Equity Award, the exercise price, whether each Company Option is intended to be an “incentive stock option” (if anyas defined in Section 422 of the Code) into which such shares are convertibleand the expiration date of each Company Option (the “Company Equity Award Schedule”). The Company holds no shares shall provide Parent with an updated Company Equity Award Schedule within three (3) Business Days prior to the anticipated Closing to reflect any changes occurring between the Capitalization Date and the applicable date of delivery. With respect to each Company Capital Stock in its treasury. All Option, the per share exercise price was equal to the fair market value (within the meaning of Section 409A of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transferCode) of any shares a Company Share on the date of grant and each Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned Option intended to qualify as an “incentive stock option” under Section 422 of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof Code so qualifies. Each Company Equity Award and the Company and under applicable securities LawsESPP may by its terms be treated at the Effective Time as set forth in Section 3.7.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, Except for the Company Share Plan under which it was grantedEquity Awards set forth in Section 4.2(b) above, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, there are on the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to hereof no outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions securities of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities of its Subsidiaries convertible into or exchangeable for shares of Company Capital Stockcapital stock or voting securities or ownership interests in the Company, (ii) options, warrants, rights or other agreements or commitments requiring the Company has to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in, or securities convertible into or exchangeable for or with a value that is linked to (including any “phantom” stock, “phantom” stock rights, stock appreciation rights, stock-based units or any other similar interests), capital stock or voting securities or other ownership interests in the Company (or, in each case, the economic equivalent thereof), (iii) obligations requiring 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, voting securities or other ownership interests in the Company (the items in clauses (i), (ii) and (iii), together with the shares of capital stock of the Company, being referred to collectively as “Company Securities”) or (iv) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the Company Shares.
(d) There are on the date hereof no obligation (contingent outstanding obligations of the Company or otherwise) any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities Laws, including the Securities Act and “blue sky” Laws.
(e) The Company or another of its Subsidiaries is the record and beneficial owner of all of the outstanding shares of Capital Stockcapital stock of, or other equity or voting interest interests in, each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), which shares (i) have been duly authorized and validly issued, (ii) are fully paid and nonassessable and (iii) are free of any preemptive rights or any similar right created by applicable Law, the organizational documents of any applicable Subsidiary or any agreement to which the Company or any Subsidiary is a party or otherwise bound, and there are no irrevocable proxies with respect to any such shares. As of the date hereof, with respect to each Subsidiary of the Company, there are no securities, options, warrants, rights or other Person agreements or to pay any dividend commitments or to make any other distribution obligations, in respect each case, of its Capital Stockthe type described in clauses (i), (ii) and (iii) of the definition of Company has not at Securities, with respect to any time purchasedcapital stock, redeemed voting securities or repaid other ownership interests in any Subsidiary of the Company Capital Stock or otherwise agreed to reduce (together with the shares of capital stock of the Subsidiaries of the Company, the “Subsidiary Securities”).
(f) Neither the Company nor any class of its issued share capital Subsidiaries has outstanding bonds, debentures, notes or carried out any transaction other similar obligations, the holders of which have the right to vote (or which are convertible into or exercisable for securities having the effect of a reduction of capital, and right to vote) with the Company Stockholders on any matter.
(ivg) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards No Company Shares (or other rights that equity or ownership interests, including any security or other Contract convertible into or exchangeable for any such equity or ownership interest) are linked in held by any way to the price Subsidiary of the Company Capital Stock or the value of the Company or any part thereofCompany.
Appears in 3 contracts
Sources: Merger Agreement (Johnson & Johnson), Merger Agreement (Abiomed Inc), Merger Agreement (Johnson & Johnson)
Capitalization. (a) The whole registered (authorized) share capital of the allotted and issued Company Capital Stock as consists of NIS 18,000,000 divided into 90,000,000 Company Shares, nominal value NIS 0.20 per share. As of the Relevant Time consists close of business on January 24, 2020 (i)64,244 shares the “Company Capitalization Date”): (i) (A) 55,493,258 Company Shares were issued and outstanding, (B) no Company Shares were held by the Company in its treasury (dormant shares), and (C) no Company Shares were held by Subsidiaries of Company Ordinary Shares the Company; and (ii) 17,898 shares 3,168,979 Company Shares were subject to outstanding Company Options (assuming, in the case of Seed Preferred SharesCompany Options that are subject to the attainment of performance goals, that applicable performance goals are attained at maximum levels). The Sale Shares and Since the shares held by the Previous Sellers constitute the entire issued Company Capitalization Date and to be the date hereof, the Company has not issued share capital of any Company Shares other than pursuant to the Company, are the whole of the allotted and issued shares exercise of Company Capital Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))Options.
(b) Section 5.3(b3.4(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time Company Capitalization Date, a complete with respect to any Company Options outstanding as of such date: (i) the number of Company Shares subject to each Company Option; (ii) the name and accurate list state of all residence of the holder of each Company Share Plans, indicating Option; (iii) the grant date and expiration date of each Company Option; (iv) the exercise price for each Company Share Option; (v) the vesting schedule; (vi) a description of any vesting acceleration provisions applicable to such Company Option; (vii) the Company Plan under which such Company Option was granted; (viii) the number of shares of Tax route under which such Company Ordinary Shares issued thereunderOption was granted and is currently intended to qualify; and (ix) for Company 102 Options, the number date of shares deposit of Company Ordinary Shares subject to outstanding options thereunder such award with the 102 Trustee, as well as the date of deposit of the applicable corporate approval and the number date of shares deposit of the respective award agreement with the 102 Trustee (in the case of clauses (i) through (ix) on an award-by-award basis). No outstanding Company Ordinary Options were granted outside of the Company Plans and there are no outstanding Company Restricted Shares. As of the Company Capitalization Date, 77,888 Company Shares were reserved for future issuance thereunder. Except pursuant to equity-based awards not yet granted under the Company Plans and, since such date, the Company has not granted, committed to grant or otherwise created or assumed any obligation with respect to any Company Options, except as set forth on in Section 5.3(c3.4(b) of the Company Disclosure Letter, there is no allotted Letter or as permitted by Section 5.2(b).
(c) All outstanding Company Shares have been duly authorized and validly issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance in all material respects with all applicable Laws Applicable Law, and are fully paid and nonassessable and free of any preemptive rights. All Company Options have been duly authorized and validly issued in compliance in all material respects with all Applicable Law and the Company Plans and all terms and conditions Company Options have been properly accounted for in accordance with U.S. GAAP on the consolidated audited financial statements of the applicable Company Share Plan and (ii) has an exercise price per share of its Subsidiaries filed in or furnished with the Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grantSEC Reports.
(d) Except (1) as set forth in this Section 5.3 or in Section 5.3(d3.4(d) of the Company Disclosure Letter, and (2) changes since the Company Capitalization Date resulting from the issuance of Company Shares pursuant to the Company Options set forth in Section 3.4(b) of the Company Disclosure Letter or as expressly permitted by Section 5.2, there are (i) there are other than as set forth in Section 3.4(a), no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any outstanding shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stockof, or other equity or voting interest in, the Company; (ii) no outstanding securities of the Company convertible into or exchangeable for share capital of, or other equity or voting interest in, the Company; (iii) no outstanding options, stock appreciation rights, warrants, restricted share units, rights or other commitments or agreements to acquire from the Company, or that obligate the Company to issue, any share capital of, or other equity or voting interest in, or any securities convertible into or exchangeable for share capital of, or other Person equity or voting interest in, the Company; (iv) no obligations of the Company to pay grant, extend or enter into any dividend subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment (whether payable in equity, cash or otherwise) relating to make any share capital of, or other distribution equity or voting interest (including any voting debt) in, the Company (the items in respect of its Capital Stockclauses (i), (ii), (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv), together with the share capital of the Company, being referred to collectively as “Company Securities”) there are and (v) no allotted, issued other obligations by the Company or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way of its Subsidiaries to make any payments based on the price of the Company Capital Stock or the value of the Company Securities. There are no outstanding Contracts of any kind, which obligate the Company or any part thereofof its Subsidiaries to repurchase, redeem or otherwise acquire any Company Securities. Except for the Voting Agreement and the Charter Documents or as set forth in Section 3.4(d) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to any Contracts restricting the transfer of, relating to the voting of, requiring registration of, or granting any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any securities of the Company.
Appears in 3 contracts
Sources: Merger Agreement (Gilat Satellite Networks LTD), Merger Agreement (Comtech Telecommunications Corp /De/), Merger Agreement (Gilat Satellite Networks LTD)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time date of this Agreement consists of (i)64,244 56,666,666 Shares and 10,000,000 shares of preferred stock, par value $0.001 per share (“Company Ordinary Preferred Stock”). The rights and privileges of each class of the Company’s capital stock are as set forth in the Company’s certificate of incorporation. As of the close of business on May 7, 2009, (i) 16,222,026 Shares were issued and outstanding and (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued no shares of Company Capital Preferred Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share were issued or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))outstanding.
(b) Section 5.3(b3.3(b) of the Company Disclosure Letter sets forth Schedule includes a list, as of the Relevant Time a complete and accurate list date of this Agreement, of (i) each outstanding Company Option under the Company Stock Plans, including the identification number of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Optionholder, the Company Share Stock Plan under which it was each Company Option is granted, the number of shares of Company Ordinary Shares subject to such Company Share Optiongrant date, the expiration date, the exercise price, and whether any option is an incentive stock option, (ii) the date total number of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for Shares issued under each Company Share Plan Stock Plan, (iii) the total number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(cunder each Company Stock Plan, and (iv) of each outstanding Company RSU, including the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions identification number of the applicable holder, the Company Share Stock Plan under which such Company RSUs were issued and the issue date. The Company Stock Plans (iiincluding all amendments) has have been duly approved by the Company’s stockholders. All outstanding Company Options were granted with an exercise price per share of Company Ordinary Share equal to or greater not less than the fair market value of a share of Company Ordinary Share the Shares on the date of such grant. The Company has made available to the Parent complete and accurate copies of all (x) Company Stock Plans, (y) forms of stock option agreements evidencing Company Options and (z) forms of agreements evidencing Company RSUs.
(dc) Except as set forth in this Section 5.3 or in Section 5.3(d3.3(a) of the Agreement, Sections 3.3(b) and 3.3(c) of the Company Disclosure LetterSchedule or Schedule 5.1 of the Agreement, (i) there are no allotted not as of the date of this Agreement, and at the Acceptance Time there will not be, any equity securities of any class of the Company, or issued any security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding and (ii) there are not as of the date of this Agreement, and at the Acceptance Time there will not be, any options, warrants, rights (including conversion equity securities, calls, rights, commitments or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, agreements to purchase or acquire from which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound obligating the Company or any of its subsidiaries to issue, exchange, transfer, deliver, sell or cause to be issued, exchanged, transferred, delivered or sold, additional shares of capital stock or other equity or voting interests of the Company Capital Stock, or any securities security or rights convertible into or exchangeable or exercisable for any such shares or other equity or voting interests, or obligating the Company or any of its subsidiaries to grant, extend, accelerate the vesting of, otherwise modify or amend or enter into any such option, warrant, equity security, call, right, commitment or agreement, other than the Top-Up Option. The Company does not have any outstanding stock appreciation rights, phantom stock, performance based rights or similar rights or obligations. None of the Company or, to the Company’s knowledge, any of its Affiliates, is a party to or is bound by any agreement with respect to the voting (including proxies) or sale or transfer of any shares of Company Capital Stockcapital stock or other equity or voting interests of the Company. For all purposes of this Agreement, (ii) the term “Affiliate” when used with respect to any person means any other person who is an “affiliate” of that first person within the meaning of Rule 405 under the Securities Act. Except as contemplated by this Agreement and except to the extent arising pursuant to applicable state takeover or similar Laws, there are no registration rights, and there is no rights agreement, “poison pill” anti-takeover plan or other similar agreement to which the Company has or any Company Subsidiary is bound with respect to any securities of the Company.
(d) All outstanding Shares are, and all Shares subject to issuance as specified in Section 3.3(b) above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be, duly authorized, validly issued, fully paid and nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the DGCL, the Company’s certificate of incorporation or bylaws or any agreement to which the Company is bound.
(e) There are no obligation (obligations, contingent or otherwise) , of the Company or any of its subsidiaries to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock Shares or the value capital stock of the Company or any part thereofof its subsidiaries. The Company has no outstanding bonds, debentures, notes or other indebtedness that have the right to vote on any matters on which stockholders may vote.
Appears in 3 contracts
Sources: Merger Agreement (Covidien PLC), Merger Agreement (Vnus Medical Technologies Inc), Merger Agreement (Covidien Group S.a.r.l.)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 300,000,000 shares of Company Ordinary Shares Common Stock and 5,000,000 shares of preferred stock, par value $0.00001 per share (“Company Preferred Stock”). As of June 15, 2015 (the “Company Capitalization Date”), (i)(A) 25,938,955 shares of Company Common Stock were issued and outstanding (including any Company Restricted Share Awards), (B) no shares of Company Common Stock were held in treasury and (C) no shares of Company Common Stock were held by the Company Subsidiaries, (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued 5,499,681 shares of Company Capital Common Stock were reserved for issuance pursuant to the Company Equity Plans, of which amount 4,362,635 shares of Company Common Stock are issuable upon the exercise of outstanding Company Stock Options, (iii) 99,357 shares of Company Common Stock were issuable upon the settlement of outstanding Company RSU Award, and have been (iv) no shares of Company Preferred Stock were issued or outstanding. 681,844 shares of Company Common Stock were authorized for issuance pursuant to the Company ESPP. All the outstanding shares of Company Common Stock are, and all shares of Company Common Stock reserved for issuance as noted above shall be, when issued in accordance with the respective terms thereof, duly authorized and authorized, validly issued, and are fully paid up and no sum is non-assessable and free of pre-emptive rights. All issued and outstanding in respect shares of any Sale Share capital stock of, or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellersother equity interests in, no Relevant Securities exist in respect each Subsidiary of the Company (nor is there any agreement are wholly owned, directly or arrangement for indirectly, by the creationCompany free and clear of all Liens, constitution, grant or issuance of any Relevant Securities in respect other than Company Permitted Liens. Section 3.2(a) of the Company (other than the Sale Shares and the A Pref Shares)).
(b) Section 5.3(b) of the Disclosure Letter sets forth an accurate and complete list of all Company Equity Awards outstanding as of the Relevant Time Company Capitalization Date, specifying, on a complete and accurate list holder-by-holder basis, (i) the name of the holders of Company Capital Stockeach holder, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, (ii) the number of shares of Company Ordinary Shares Common Stock subject to each such Company Equity Award, (if anyiii) into which the grant date of each such shares are convertible. The Company holds no shares Equity Award, (iv) the year of vesting of each such Company Capital Stock Equity Award or the number of exercisable and unexercisable options underlying such Company Equity Award, in its treasury. All of either case, to the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance withextent applicable, and no transfer (or purported transferv) of any shares of the exercise price for each such Company Capital Stock has been made at any time in breach ofEquity Award, all applicable securities Laws and to the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Lawsextent applicable.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(db) Except as set forth in Section 3.2(a) above, as of the date of this Section 5.3 Agreement: (i) the Company does not have any shares of capital stock issued or outstanding other than the shares of Company Common Stock that were outstanding on the Company Capitalization Date or that have become outstanding after the Company Capitalization Date but were reserved for issuance as set forth in Section 5.3(d3.2(a) above as of the Disclosure Letter, Company Capitalization Date and (iii) there are no allotted or issued outstanding subscriptions, options, warrants, rights (including conversion puts, calls, exchangeable or preemptive rights and rights of first refusal convertible securities or other similar rights) , agreements or agreements, orally commitments relating to the issuance of capital stock or in writing, other equity interests to purchase or acquire from which the Company or any of the Company Subsidiaries is a party or otherwise obligating the Company or any of the Company Subsidiaries to (A) issue, transfer or sell any shares in the capital or other equity interests of the Company Capital Stock, or any Company Subsidiary or securities convertible into or exchangeable for such shares of Company Capital Stock, or equity interests (ii) in each case other than to the Company has no obligation or a wholly owned Subsidiary of the Company); (contingent B) grant, extend or otherwiseenter into any such subscription, option, warrant, put, call, exchangeable or convertible securities or other similar right, agreement or commitment; (C) to purchase, redeem or otherwise acquire any such shares of Capital Stock, in its capital or other equity interests; (D) provide a material amount of funds to, or voting interest make any material investment (in the form of a loan, capital contribution or otherwise) in, the any Company Subsidiary that is not wholly owned or any other Person or to pay any dividend or to (E) make any other distribution in respect payment to any Person the value of its Capital Stock, (iii) the Company has not at any time purchased, redeemed which is derived from or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or calculated based on the value of the Company Common Stock or Company Preferred Stock. Between the Company Capitalization Date and the date of this Agreement, the Company has not granted any equity or equity-based award to any of the directors, employees or independent contractors of the Company or any part thereofCompany Subsidiaries.
(c) With respect to each grant of Company Equity Awards, each such grant was made in accordance with the terms of the applicable Company Equity Plan, the Exchange Act and all other applicable Laws, in each case, in all material respects, including the rules of the NASDAQ.
(d) Neither the Company nor any Company Subsidiary has outstanding bonds, debentures, notes or other similar obligations, the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the stockholders of the Company or any Company Subsidiary on any matter.
(e) There are no voting trusts or other agreements or understandings to which the Company or any Company Subsidiary is a party with respect to the voting of the capital stock or other equity interest of the Company or any Company Subsidiary.
(f) Each Company Subsidiary and its jurisdiction of organization is identified in Section 3.2(f) of the Company Disclosure Letter. The Company or a Company Subsidiary owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other equity interests of each Company Subsidiary, free and clear of any preemptive rights and any Liens other than Company Permitted Liens, and all of such shares of capital stock or other equity interests are duly authorized, validly issued, fully paid and nonassessable and free of preemptive rights. Except for equity interests in the Company Subsidiaries, neither the Company nor any of the Company Subsidiaries owns, directly or indirectly, any equity interest in any Person (or any security or other right, agreement or commitment convertible or exercisable into, or exchangeable for or measured by reference to, any equity interest in any person). Neither the Company nor any of the Company Subsidiaries has any obligation to acquire any equity interest, security, right, agreement or commitment or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in, any Person.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Allergan PLC), Merger Agreement (Kythera Biopharmaceuticals Inc), Merger Agreement (Allergan PLC)
Capitalization. (a) The whole authorized capital stock of the allotted Company consists of 90,000,000 Shares and issued 15,000,000 shares of preferred stock. As of December 14, 2010 there were outstanding 38,688,190 Shares (of which an aggregate of 100,000 represent shares issuable upon the vesting of Company Capital Restricted Stock as Units), no shares of preferred stock, Company Stock Options to purchase an aggregate of 6,332,614 Shares (of which options to purchase an aggregate of 5,464,893 Shares were exercisable) and no Company Performance Units. All outstanding shares of capital stock of the Relevant Time consists Company have been, and all shares that may be issued upon exercise of Company Stock Options will be, when issued in accordance with the respective terms thereof, duly authorized and validly issued and fully paid and nonassessable and free of preemptive rights. Section 4.05 of the Company Disclosure Schedule contains a list of (i)64,244 shares i) each outstanding Company Stock Option, including the holder, date of Company Ordinary grant, exercise price, number of Shares subject thereto and the number of such Shares that have vested and (ii) 17,898 shares all outstanding Company Restricted Shares, including with respect to each such share or unit, the holder, date of Seed Preferred Shares. The Sale Shares grant and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and validly issuednumber vested, and are fully paid up such list is complete and no sum is outstanding accurate in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))all material respects.
(b) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and Except for the Company’s articles of association. To obligations under the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof Rights Agreement and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share OptionsRights issued pursuant thereto, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except except as set forth in this Section 5.3 or in Section 5.3(d4.05 and for changes since December 14, 2010 resulting from the exercise of Company Stock Options outstanding on such date, the issuance of shares pursuant to Company Restricted Stock Units and the issuance of shares pursuant to the Company 401(k) of the Disclosure LetterPlan, there are no outstanding (i) there are no allotted shares of capital stock of or issued options, warrants, other voting securities or ownership interests in the Company or (ii) options or other rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company, or other obligation of the Company to issue, any shares of Company Capital Stockcapital stock or other voting securities or ownership interests in, or any securities convertible into or exchangeable or exercisable for shares of capital stock or other voting securities or ownership interests in, the Company Capital Stock, (the items in clauses (i) and (ii) being referred to collectively as the “Company Securities”). There are no outstanding obligations of the Company has no obligation (contingent or otherwise) any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock Securities.
(c) None of (i) the Shares or otherwise agreed to reduce (ii) Company Securities are owned by any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price Subsidiary of the Company Capital Stock or the value of the Company or any part thereofCompany.
Appears in 3 contracts
Sources: Merger Agreement (RP Management, LLC), Merger Agreement (Ramius Value & Opportunity LLC), Merger Agreement (Cypress Bioscience Inc)
Capitalization. (a) The whole authorized capital stock of the allotted Company consists of 200,000 shares of Company Common Stock, 50,000 shares of Series A Preferred Stock, 35,000 shares of Series B Preferred Stock, and 40,000 shares of blank check preferred stock, par value $0.01 per share. As of the date hereof, (i) 54,000 shares of Company Common Stock are issued and outstanding, all of which have been duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, (ii) 15,638 shares of Series A Preferred Stock are issued and outstanding, all of which have been duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, (iii) 19,656 shares of Series B Preferred Stock are issued and outstanding, all of which have been duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, (iv) 2,739 Company Capital Restricted Shares are issued and outstanding, all of which have been duly authorized, validly issued, fully paid, nonassessable and free and clear of all preemptive rights, and (v) 149 shares of Company Common Stock are reserved for issuance upon vesting and settlement of outstanding Company RSUs. The outstanding shares of Company Common Stock, the Company Preferred Stock, the Company Restricted Shares and the Company RSUs have been issued in compliance with all applicable securities laws. Since the date hereof, except as permitted by this Agreement or as disclosed in Section 6.02(a) of the Company Disclosure Schedule, (x) no shares of capital stock of the Company have been issued, and (y) no options, warrants or securities convertible into, or commitments with respect to the issuance of, shares of capital stock of the Company have been issued, granted or made. Section 6.02(a) of the Company Disclosure Schedule sets forth a true, correct and complete list of the holders of record of Company Common Stock and Company Preferred Stock as of the Relevant Time consists of (i)64,244 shares of Company Ordinary Shares and (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))date hereof.
(b) Section 5.3(b6.02(b) of the Company Disclosure Letter Schedule sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share PlansStock Plans and all holders of Company Restricted Shares and Company RSUs, indicating for with respect to each Company Restricted Share Plan the number of shares of and each Company Ordinary Shares issued thereunderRSU, the number of shares of Company Ordinary Shares Common Stock subject to outstanding options thereunder such Company Restricted Shares and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure LetterRSUs, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of grant, settlement terms, vesting period and the expiration date thereof. The Company has delivered or made available to Pyramid accurate and complete copies of all Company Stock Plans, the standard forms of the Company Restricted Share Agreement and the Company RSU Agreement evidencing Company Restricted Shares and Company RSUs, and any Company Restricted Share Agreements and Company RSU Agreements evidencing a Company Restricted Share or a Company RSU that deviates in any material manner from the Company’s standard forms of the Company Restricted Share Agreement and the Company RSU Agreement.
(c) Except for Company Restricted Shares and Company RSUs, there are no outstanding subscriptions, options, calls, contracts, commitments, understandings, restrictions, arrangements, rights or warrants, including any right of conversion or exchange under any outstanding security, instrument or other agreement and also including any rights plan or other anti-takeover agreement, obligating the Company to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of the capital stock of the Company or obligating the Company to grant, extend or enter into any such grantagreement or commitment. There are no outstanding stock appreciation rights or similar derivative securities or rights of the Company. Except for the Company Voting Agreement, there are no voting trusts, irrevocable proxies or other agreements or understandings to which the Company is a party or is bound with respect to the voting of any shares of capital stock of the Company.
(d) Except as set forth in this Section 5.3 All of the issued and outstanding shares of capital stock (or in Section 5.3(dequivalent equity interests of entities other than corporations) of each of the Disclosure LetterCompany’s subsidiaries are owned, (i) there are no allotted directly or issued optionsindirectly, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from by the Company free and clear of any liens, other than statutory liens for Taxes not yet due and payable and such other restrictions as may exist under applicable law, and liens in favor of the Company’s lenders, and all such shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest inownership interests have been duly authorized, the Company or any other Person or to pay any dividend or to make any other distribution in respect validly issued and are fully paid and non-assessable and free of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation preemptive rights, phantom stock awards or other rights that are linked in any way with no personal liability attaching to the price of the Company Capital Stock or the value of the Company or any part ownership thereof.
Appears in 2 contracts
Sources: Merger Agreement (Pyramid Oil Co), Merger Agreement (Pyramid Oil Co)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 30,000,000 shares of Company Ordinary Shares Common Stock and 800,000 shares of Company Preferred Stock. As of the close of business on March 12, 2013, there were (i) 11,785,826 issued and 11,683,987 outstanding shares of Company Common Stock, (ii) 17,898 22,000 shares of Seed Preferred Shares. The Sale Shares and the Company Restricted Stock issued but held in reserve, (iii) 123,839 shares of Company Common Stock held by the Previous Sellers constitute the entire Company in its treasury, and (iv) no issued and to be issued share capital of the Company, are the whole of the allotted and issued or outstanding shares of Company Capital Preferred Stock. The stockholders of the Company previously approved a 2005 Stock Option Plan, as amended (the “Company Incentive Plan”). As of the close of business on March 12, 2013, 200,000 shares of Company Common Stock were reserved for future issuance pursuant to Company Stock Options under the Company Incentive Plan. As of the close of business on March 12, 2013, there were outstanding options to purchase 82,000 shares of Company stock, including options to purchase 81,000 shares of Company stock at an exercise price lower than the Cash Consideration. As of the close of business on March 12, 2013, there were 118,000 shares of Company Common Stock remaining available for the grant of awards under the Company Incentive Plan. As of the close of business on March 12, 2013, there were warrants to purchase 9,079 shares of Company Common Stock outstanding, at an exercise price lower than the Cash Consideration. There are no outstanding or authorized stock appreciation, phantom stock, profit participation or other similar rights with respect to the Company. All shares of Company Common Stock are, and have been all shares of Company Common Stock which may be issued and outstanding immediately prior to the Effective Time as permitted under this Agreement shall be when issued, duly authorized and authorized, validly issued, and are fully paid up and no sum is outstanding in respect nonassessable shares of Company Common Stock and not subject to any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))preemptive rights.
(b) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds has no shares of Company Capital Stock in its treasuryoutstanding Voting Debt. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by Other than the Company in compliance and accordance withStock Options referenced above, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
its Subsidiaries have not issued, sold, granted or delivered, are not obligated to issue, sell, grant or deliver (c) Section 5.3(c) or to cause to be issued, sold, granted or delivered), and are not a party to any Contract or other obligation to issue, sell, grant or deliver, any Equity Interest or Voting Debt of the Disclosure Letter sets forth as Company or any of the Relevant Time a complete and accurate list of all holders of its Subsidiaries. There are no outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option authorized (i) was granted in compliance with all applicable Laws and all terms and conditions contractual or other obligations of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value Equity Interest of the Company or any part thereofof its Subsidiaries or any such securities or agreements referred to in the prior sentence or (ii) voting trusts or similar agreements to which the Company or any of its Subsidiaries is a party with respect to the voting of the capital stock of the Company or any of its Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Miscor Group, Ltd.), Merger Agreement (Integrated Electrical Services Inc)
Capitalization. (a) The whole As of the allotted and issued Company Capital Stock as date of this Agreement, the authorized Securities of the Relevant Time Company consists of (i)64,244 160,000,000 shares of Company Ordinary Shares Common Stock, par value $0.0013, and 20,000,000 shares of preferred stock, par value $0.001 per share (the “Company Preferred Stock” and, together with the Company Common Stock, the “Company Capital Stock”). At the close of business on September 30, 2019 (the “Reference Time”): (i) 86,621,633 shares of Company Common Stock were issued and outstanding, (ii) 17,898 no shares of Seed Company Preferred Shares. The Sale Shares Stock were issued and the outstanding, (iii) 200,000 shares of Company Common Stock were held by the Previous Sellers constitute the entire issued and to be issued share capital of the CompanyCompany in its treasury, are the whole of the allotted and issued (iv) 7,254,451 shares of Company Capital Common Stock were issuable upon the exercise of outstanding Company Stock Options and (v) 6,505,356 shares of Company Common Stock were reserved for issuance pursuant to the Company Stock Plans. Except as set forth in this Section 4.3(a), at the Reference Time, no Securities of the Company are issued, reserved for issuance or outstanding. From the Reference Time through the date hereof, there have been no issuances by the Company of Securities, other than the issuance of Company Common Stock upon the exercise of the Company Stock Options outstanding at the Reference Time and in accordance with their terms in effect at such time. All issued and outstanding Company Common Stock have been, and all shares of Company Common Stock that may be issued pursuant to the Company Stock Plans will be, when issued in accordance with the terms thereof, duly authorized and authorized, validly issued, fully paid and nonassessable and are fully paid up and subject to no sum is outstanding in respect of any Sale Share preemptive or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))similar rights.
(b) (i) Section 5.3(b4.3(b)(i) of the Company Disclosure Letter sets forth each Company Stock Plan and, as of the Relevant Time a complete and accurate list of Reference Time, the holders of Company Capital Stock, showing the aggregate number of shares of such Capital StockCompany Common Stock relating to outstanding and available awards under each Company Stock Plan, and (ii) Section 4.3(b)(ii) of the class or series Company Disclosure Letter sets forth a true and complete list, as of such shares, held by each such shareholder andthe Reference Time, with respect to shares other than each then-outstanding Company Ordinary SharesStock Option, (A) the name of the Company Stock Option holder, (B) the number of shares of Company Ordinary Shares Common Stock underlying each Company Stock Option, (C) the date on which the Company Stock Option was granted, (D) the Company Stock Plan under which the Company Stock Option was granted, (E) the exercise price of each Company Stock Option, if anyapplicable, and (F) into which such shares the expiration date of each Company Stock Option, if applicable. The only awards outstanding under each Company Stock Plan are convertiblethose identified on Section 4.3(b)(ii) of the Company Disclosure Letter. The Company holds no shares has made available to Parent true and complete copies of each Company Capital Stock in its treasury. All Plan and form of the allotted and issued shares of agreement evidencing each Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance withOption, and no transfer (or purported transfer) of has also delivered any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder other stock option agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under evidencing a Company Share Plan. No Company Share Stock Option is exercisable for any class or series to the extent there are material variations from the form of Company Capital Stock other than Company Ordinary Sharesagreement, specifically identifying the Person(s) to whom such variant forms apply. Each Company Share Option Stock Option
(i1) was granted in compliance with all applicable Laws and all of the terms and conditions of the applicable Company Share Plan and Stock Plans pursuant to which it was issued, (ii2) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share Common Stock at the close of business on the date of such grant, and (3) has a grant date not earlier than the date on which the Board of Directors of the Company (or compensation committee thereof) actually awarded such Company Stock Option.
(dc) Except as set forth in this Section 5.3 There are no preemptive or in Section 5.3(d) similar rights on the part of any holder of any class of Securities of the Disclosure LetterCompany or any Company Subsidiary. Neither the Company nor any Company Subsidiary has outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (ior which are convertible into or exercisable for Securities having the right to vote) with the holders of any class of Securities of the Company or any Company Subsidiary on any matter submitted to such holders of Securities. Other than the Company Stock Options pursuant to the Company Stock Plans, there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights other outstanding Equity Rights with respect to Securities of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares Company Subsidiary. There are no outstanding contractual obligations of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) any Company Subsidiary to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value Securities of the Company or any part thereofCompany Subsidiary. There are no proxies, voting trusts or other agreements or understandings to which the Company is a party or is bound with respect to the voting of the Securities of the Company.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Lantheus Holdings, Inc.), Merger Agreement (Lantheus Holdings, Inc.)
Capitalization. The authorized capital stock of the Company consists of 75,000,000 shares of Company Common Stock and 25,000,000 shares of preferred stock, par value $0.01 per share (the “Company Preferred Stock”). As of October 13, 2009 with respect to subsections (a) The whole and (b) of the allotted this sentence and issued Company Capital Stock as of the Relevant Time consists date hereof for all other subsections of this sentence, (i)64,244 a) 17,262,954 shares of Company Ordinary Shares Common Stock are issued and outstanding, all of which are validly issued, fully paid and nonassessable and free of preemptive rights, (iib) 17,898 689,263 shares of Seed Preferred Shares. The Sale Shares and Company Common Stock (which are included in clause (a)) are held in the shares held by the Previous Sellers constitute the entire issued and to be issued share capital treasury of the Company, (c) 1,701,736 Company Options are outstanding pursuant to the whole Company Stock Option Plans, each such option entitling the holder thereof to purchase one share of the allotted and issued Company Common Stock, (d) no shares of Company Capital Preferred Stock are issued and have been duly authorized outstanding, (e) 143,850 shares of Restricted Stock (which are included in clause (a)) are issued and validly issuedoutstanding and (f) no shares of Company Common Stock are reserved for issuance upon exercise of outstanding stock options or otherwise, and are fully paid up and no sum is outstanding in respect except for shares reserved for issuance pursuant to Company Options. During the period from October 13, 2009 through the date of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in this Agreement, the Company held by has not issued or redeemed any shares of Company Common Stock except pursuant to a previously announced 10b5-1 plan of the Previous Sellers, no Relevant Securities exist in respect Company. Section 3.2 of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares)).
(b) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a true and complete and accurate list of the holders outstanding Company Options, with the exercise price of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letterabove, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion convertible securities, subscriptions, stock appreciation rights, phantom stock plans or preemptive rights and rights of first refusal stock equivalents or similar other rights) or , agreements, orally arrangements or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation commitments (contingent or otherwise) of any character issued or authorized by the Company or any Subsidiary relating to purchasethe issued or unissued capital stock of the Company or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any shares of capital stock of, or options, warrants, convertible securities, subscriptions or other equity interests in, the Company or any Subsidiary. All shares of Company Common Stock subject to issuance as aforesaid, 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. There are no outstanding contractual obligations of the Company or any Subsidiary to repurchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company Common Stock or any other Person capital stock of any Subsidiary or to pay any dividend or to make any other distribution in respect thereof or to provide funds to, or make any investment (in the form of its Capital Stocka loan, capital contribution or otherwise) in, any person. Each outstanding share of capital stock of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable and free of any preemptive rights. The Company owns (iiieither directly or indirectly) the Company has not at any time purchased, redeemed or repaid any beneficially and of record all of the Company Capital Stock issued and outstanding capital stock of each Subsidiary, free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on the Company’s or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation such other Subsidiary’s voting rights, phantom stock awards charges and other encumbrances of any nature whatsoever and does not own an equity interest in any other corporation, partnership or entity, other than in the Subsidiaries. No bonds, debentures, notes or other rights that are linked in any way to the price of the Company Capital Stock or the value indebtedness of the Company or the Subsidiaries having the right to vote on any part thereofmatter on which stockholders may vote are issued or outstanding.
Appears in 2 contracts
Sources: Merger Agreement (iPCS, INC), Merger Agreement (Sprint Nextel Corp)
Capitalization. (a) The whole of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 shares of Company Ordinary Shares and (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share authorized capital of the CompanyTarget consists of an unlimited number of Common Shares, are the whole an unlimited number of First Preferred Shares, issuable in series, and 33,964,324 class A shares. As of the allotted close of business on the Business Day prior to the date of this Agreement, there were 96,544,880 Common Shares issued and outstanding, 5,000,000 First Preferred Shares Series 5 issued shares of Company Capital Stock and outstanding, 5,000,000 First Preferred Shares Series 9 issued and outstanding, 175,000 First Preferred Shares Series 11 and 150,000 First Preferred Shares Series 12 issued and outstanding. All outstanding Common Shares and First Preferred Shares have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share non-assessable. All dividends or share held by any Previous Seller. Save for the Sale distributions on Common Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect First Preferred Shares that have been declared or authorized as of the Company (nor is there any agreement or arrangement for close of business on the creationBusiness Day prior to the date of this Agreement, constitution, grant or issuance of any Relevant Securities have been paid in respect full. All outstanding securities of the Company (other than the Sale Shares Target and the A Pref Shares))its Subsidiaries have been issued in compliance with all applicable Laws.
(b) Section 5.3(bAs of the close of business on the Business Day prior to the date of this Agreement, there were 2,258,245 Common Shares issuable upon the exercise of outstanding Options. Paragraph 6(b) of the Target Disclosure Letter sets forth as of the Relevant Time contains a complete and accurate list of the holders of Company Capital StockOptions, showing with details regarding the number of shares of exercise price, whether such Capital Stock, Options are vested or unvested and the class or series participants to whom such Options have been granted. The Share Incentive Plan and the issuance of securities under such shares, held plan (including all outstanding Options) have been duly authorized by each such shareholder the Board in compliance with Law and the terms of the Share Incentive Plan and, with respect to shares other than Company Ordinary Sharesupon issuance, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, will be validly issued as fully paid and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Lawsnon-assessable.
(c) Section 5.3(cAs of the close of business on the Business Day prior to the date of this Agreement, there were 424,476 PSUs outstanding, 324,354 DSUs outstanding and 789,709 RSUs outstanding. Paragraph 6(c) of the Target Disclosure Letter sets forth as of the Relevant Time contains a complete and accurate list of all holders of such outstanding Company Share OptionsPSUs, indicatingDSUs and RSUs, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to details regarding whether such Company Share Option, the exercise price, the date of grant, securities are vested or unvested and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject participants to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not whom such securities have been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grantgranted.
(d) Except as set forth in pursuant to (A) this Section 5.3 or in Section 5.3(dAgreement, (B) the terms of the Disclosure LetterFirst Preferred Shares, (C) the NVCC Provisions, (D) the DRIP, and (E) rights under the Share Incentive Plan and the ESPP, there are no:
(i) there are no allotted or issued options, equity-based awards, warrants, rights (including conversion conversion, pre-emptive, redemption, repurchase, stock appreciation or preemptive rights and rights of first refusal or similar other rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any other agreements, arrangements, instruments or commitments of any kind to which the Target or any of its Subsidiaries are a party that obligate the Target or any of its Subsidiaries to, directly or indirectly, issue or sell any securities convertible into of the Target or exchangeable of any of its Subsidiaries, or give any Person a right to subscribe for shares or acquire, any securities of Company Capital Stock, the Target or any of its Subsidiaries; or
(ii) obligations of the Company has no obligation (contingent Target or otherwise) any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any shares securities of Capital Stockthe Target or any of its Subsidiaries or, other than as contemplated by this Agreement, with respect to the voting or disposition of any securities of the Target or any of its Subsidiaries.
(e) There are no notes, bonds, debentures or other equity or voting interest in, the Company evidences of indebtedness or any other Person agreements, arrangements, instruments or commitments of any kind that give any Person, directly or indirectly, the right to pay vote with holders of Common Shares on any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofmatter except as required by Law.
Appears in 2 contracts
Sources: Transaction Agreement (National Bank of Canada /Fi/), Transaction Agreement (National Bank of Canada /Fi/)
Capitalization. (a) The whole authorized shares of beneficial interests of the allotted Company consists of 400,000,000 Company Common Shares and issued 100,000,000 preferred shares, par value $0.01 per share (“Company Capital Stock as Preferred Shares”). As of the Relevant Time consists close of business on May 3, 2019, (i)64,244 shares i) 60,765,796 Company Common Shares were issued and outstanding (including 1,371,662 Company Common Shares constituting Company Equity Awards, of which (A) 295,645 Company Ordinary Common Shares constituted Company Time-Based Share Awards and (B) the remaining 1,076,017 Company Common Shares constituted Company Performance Share Awards), (ii) 17,898 no Company Preferred Shares were issued and outstanding, (iii) 1,033,175 Company Common Shares have been authorized and reserved for issuance pursuant to the Company Equity Incentive Plan, subject to adjustment on the terms set forth in the Company Equity Incentive Plan, and (iv) no options, warrants, rights, share appreciation rights, performance share units, contingent value rights, “phantom” stock, convertible or exchangeable securities or similar securities rights that are derivative of, or provide economic rights based, directly or indirectly, on the value or price of, any shares of Seed Preferred Sharesbeneficial interest, capital stock or other voting securities or ownership interests in the Company or any Company Subsidiary were outstanding. The Sale Shares and the shares held by the Previous Sellers constitute the entire All issued and outstanding Company Common Shares (including Company Common Shares issued pursuant to be issued share capital of the CompanyCompany Equity Awards) are duly authorized, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and validly issued, fully paid, nonassessable and are fully paid up and no sum is outstanding in respect free of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))preemptive rights.
(b) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of The Company has no outstanding bonds, debentures, notes or Indebtedness the holders of Company Capital Stock, showing which have the number of shares of such Capital Stock, and right to vote (or which are convertible into or exercisable or exchangeable for securities having the class or series of such shares, held by each such shareholder and, right to vote) with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All shareholders of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer on any matter (whether together with such shareholders or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Lawsa separate class).
(c) Section 5.3(c4.3(c) of the Company Disclosure Letter sets forth a true, correct and complete list of all outstanding Company Time-Based Share Awards and Company Performance Share Awards as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, date hereof granted by the Company Share under the Company Equity Incentive Plan under which it was (each a “Company Equity Award”), including the name of the Person to whom such Company Equity Awards have been granted, the number of shares of Company Ordinary Common Shares subject to such each Company Share Option, Equity Award. Other than the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Company Equity Awards set forth in Section 5.3(c4.3(c) of the Company Disclosure Letter sets forth, there are no other equity-based awards or other rights with respect to Company Common Shares issued and outstanding under the Company Equity Incentive Plan as of the Relevant Time , a complete and accurate list of all date hereof. All Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option Equity Awards were (i) was granted granted, accounted for, reported and disclosed in compliance accordance with all applicable Laws Law and all terms and conditions of the applicable Company Share Plan accounting rules and (ii) has an exercise price per share granted in accordance with the terms of the Company Ordinary Share equal to or greater than Equity Incentive Plan. The treatment of the fair market value Company Equity Awards contemplated in Section 3.2 complies with the terms of a share of the Company Ordinary Share on the date of such grantEquity Incentive Plan and applicable award agreements.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d4.3(d) of the Company Disclosure Letter, there are no agreements or understandings to which the Company or any Company Subsidiary is a party or by which the Company or any Company Subsidiary is bound (i) with respect to the voting of any shares of beneficial interest, capital stock or other voting securities or ownership interests of the Company or any Company Subsidiary, (ii) which restrict the transfer of any such shares, capital stock or other voting securities or ownership interests, or (iii) requiring the registration for the sale of any such shares, capital stock or other voting securities or ownership interests. To the Company’s Knowledge, there are no allotted Third Party agreements or issued optionsunderstandings with respect to the voting of any such shares of capital stock or other voting securities or ownership interest.
(e) Neither the Company nor any Company Subsidiary is under any obligation, warrantscontingent or otherwise, by reason of any agreement to register the offer and sale or resale of any of their securities under the Securities Act.
(f) Other than such surrenders of Company Common Shares to satisfy Tax withholding obligations upon the vesting of Company Equity Awards pursuant to Section 3.2 or any forfeitures thereof, pursuant to the Company Equity Incentive Plan, as of the date of this Agreement, there are no outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem, exchange, convert or otherwise acquire any shares of capital stock or any other securities of Company or any Company Subsidiary.
(g) The Company does not have a “poison pill” or similar shareholder rights plan.
(including conversion h) Neither the Company nor any Company Subsidiary has granted any pre-emptive rights, anti-dilutive rights, or preemptive rights and rights of first refusal or similar rightsrights with respect to any of its shares of beneficial interest, capital stock or other voting securities or ownership interests.
(i) All dividends or agreements, orally or in writing, to purchase or acquire from other distributions on the Company Common Shares and any shares of Company Capital Stock, material dividends or other distributions on any securities convertible into or exchangeable for shares of any Company Capital Stock, Subsidiary that have been authorized and declared prior to the date hereof have been paid in full (ii) except to the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution extent such dividends have been publicly announced and are not yet due and payable and except in respect of its Capital Stock, (iii) the dividends payable upon vesting of Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofPerformance Share Awards as contemplated by Section 3.2).
Appears in 2 contracts
Sources: Merger Agreement (Chesapeake Lodging Trust), Merger Agreement (Park Hotels & Resorts Inc.)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 100,000,000 shares of Company Ordinary Shares and (ii) 17,898 Stock, 40,000 shares of Seed Series A Junior Participating Preferred SharesStock, par value $0.01 per share, and 965,000 shares of undesignated Preferred Stock. The Sale Shares As of January 7, 2005, there were outstanding 28,907,449 shares of Company Stock, no shares of Series A Junior Participating Preferred Stock, no shares of Preferred Stock and employee stock options to purchase an aggregate of 9,115,238 shares of Company Stock (of which options to purchase an aggregate of 5,885,732 shares of Company Stock were exercisable), 115,053 RSU's, each representing the right to receive one share of restricted stock subject to the terms of the RSU grant agreement, and 56,000 DSU's, each representing the right to receive one share of Company Stock subject to the terms of the DSU grant agreement. As of January 7, 2005, there was outstanding $124,350,000 in principal amount of Company Convertible Notes, convertible as of such date into 6,486,698 shares held by of Company Stock. All outstanding shares of capital stock of the Previous Sellers constitute Company have been, and all shares that may be issued pursuant to the entire Company's 1992 Stock Award Plan, its 1997 Stock Award Plan, its 1999 Non-Qualified Stock Award Plan, its 2002 Stock Award Plan, the Amended and Restated Inrange Technologies Corporation 2000 Stock Compensation Plan, and its 1992 Employee Stock Purchase Plan, in each case, as amended (the "Company Equity Plans"), will be, and all shares that may be issued upon conversion of the Company Convertible Notes will be, when issued in accordance with the respective terms thereof, duly authorized and validly issued and to be issued share are fully paid and nonassessable. No Company Subsidiary or Affiliate owns any shares of capital stock of the Company. None of the Company, nor any of its Subsidiaries or Affiliates, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and validly issuedparty to or obligated under any contract, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for regarding the creation, constitution, grant or issuance voting of any Relevant Securities in respect capital stock of the Company (Company. To the Knowledge of the Company, there are no voting trusts, proxies or other than voting arrangements or understandings with respect to the Sale Shares and capital stock of the A Pref Shares))Company.
(b) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d4.05(a) and for changes since January 7, 2005 resulting from the exercise of the Disclosure Letteremployee stock options outstanding on such date, there are no outstanding (i) there are no allotted shares of capital stock or issued optionsvoting securities of the Company, warrants, rights (including conversion or preemptive rights and rights ii) securities of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of capital stock or voting securities of the Company Capital Stockor (iii) warrants, subscription rights, options, stock appreciation rights, phantom equity or other rights to acquire from the Company, or other obligation of the Company to issue, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company (the items in clauses (i), (ii), and (iii) being referred to collectively as the "Company Securities"). There are no outstanding obligations of the Company has no obligation (or any of its Subsidiaries, contingent or otherwise) , to purchasesell, repurchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (ivSecurities. Section 4.05(b) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or Disclosure Letter sets forth the value identity of the Company holder, amount, grant date, vesting schedule, acceleration rights and description of any and all options, warrants and any other rights of employees, officers, directors, contractors, consultants and third parties to exercise for or otherwise acquire any part thereofsecurities of the Company.
Appears in 2 contracts
Sources: Merger Agreement (Computer Network Technology Corp), Merger Agreement (McData Corp)
Capitalization. (a) The whole authorized capital stock of the allotted Company consists of 100,000,000 Company Shares and issued Company Capital Stock as 25,000,000 shares of preferred stock, par value $0.01 per share, of the Relevant Time consists Company (“Company Preferred Shares”). As of the close of business on September 19, 2014 (i)64,244 shares of the “Capitalization Date”), (i) 20,917,369 Company Ordinary Shares were issued and outstanding and (ii) 17,898 shares of Seed Preferred Shares. The Sale no Company Shares and were held in the shares held by the Previous Sellers constitute the entire issued and to be issued share capital treasury of the Company, are the whole . As of the allotted and issued Capitalization Date, 1,771,064 Company Shares were subject to outstanding Company Stock Options, 626,302 shares of Company Capital Restricted Stock were outstanding, 799,251 Company Shares were subject to outstanding Company Performance Share Units, and 995,767 Company Shares were available for future awards under the Company Equity Plans. As of the date of this Agreement, no Company Preferred Shares are issued and outstanding. All of the outstanding Company Shares (including shares of Company Restricted Stock) have been duly authorized and validly issued, and are fully paid up and no sum is outstanding nonassessable, are free of preemptive rights and were issued in respect compliance with applicable Law. All Company Shares subject to issuance upon exercise of any Sale Company Stock Options or vesting of Company Performance Share or share held by any Previous Seller. Save for Units will be, upon issuance on the Sale Shares terms and the shares conditions specified in the Company held by the Previous SellersEquity Plans and award agreements pursuant to which they are issuable, no Relevant Securities exist in respect duly authorized, validly issued, fully paid and nonassessable and free of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))preemptive rights.
(b) Except as set forth in Section 5.3(b4.04(a) and for any changes since the close of business on the Capitalization Date resulting from the exercise of Company Stock Options outstanding on such date, or the vesting of Company Performance Share Units outstanding on such date, or actions taken after such date in compliance with this Agreement, there are no outstanding (i) shares of capital stock of, or other voting securities or ownership interests in, the Company, (ii) options, warrants or other rights, Contracts, arrangements or commitments of any character relating to the issued or unissued capital stock of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by obligating the Company in compliance and accordance with, and no transfer (to issue or purported transfer) of sell any shares of Company Capital Stock has been made at any time in breach capital stock of, all applicable or other equity interests in, the Company or (iii) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities Laws and or rights that are derivative of or provide economic benefits based, directly or indirectly, on the value or price of any capital stock or other voting or ownership interests in the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c4.04(c) of the Company Disclosure Letter Schedule sets forth a listing of (i) all Company Equity Plans and (ii) all Company Stock Options, shares of Company Restricted Stock and Company Performance Share Units outstanding as of the Relevant Time a complete close of business on the Capitalization Date, and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each such award, (A) the date of grant and name of holder of each such Company Share Stock Option, share of Company Restricted Stock and Company Performance Share Units, (B) the Company Share Equity Plan under which it each such award was granted, (C) the number portion of shares such award vested and unvested as of Company Ordinary Shares subject to such Company Share Optionthe close of business on the Capitalization Date, (D) if applicable, the exercise priceprice or repurchase price therefor, (E) with respect to Company Stock Options, whether or not such Company Stock Option is intended to qualify as an “incentive stock option” within the meaning of Section 422 of the Code, and (F) with respect to Company Performance Share Units, all of the performance objectives related thereto. There have been no re-pricings of any Company Stock Options through amendments, cancellations and reissuance or other means during the current or prior two calendar years. Other than as set forth in Section 4.04(c) of the Company Disclosure Schedule, none of the Company Stock Options was granted with an exercise price below the closing price of Company Common Shares on NASDAQ on the date of the grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares All grants of Company Ordinary Stock Options, Company Restricted Shares issued thereunder, and Company Performance Share Units were validly made and properly approved by the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(cBoard (or a duly authorized committee or subcommittee thereof) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions recorded on the consolidated financial statements of the applicable Company Share Plan in accordance with GAAP, and (ii) has an exercise price per share no such grants of Company Ordinary Share equal to Stock Options involved any “back dating,” “forward dating” or greater than the fair market value of a share of Company Ordinary Share on the date of such grantsimilar practices.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) There are no outstanding contractual obligations of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any shares Company Shares or any other equity securities of Capital Stockthe Company, or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Person that would be material to the Company and its Subsidiaries, taken as a whole.
(e) There are no voting trusts or other Contracts to which the Company or any of its Subsidiaries is a party with respect to the voting of any capital stock of, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, Subsidiaries.
(iiif) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there There are no allottedoutstanding bonds, issued or authorized stock appreciation rightsdebentures, phantom stock awards notes or other rights that are linked in any way to the price of the Company Capital Stock or the value indebtedness of the Company or any part thereofof its Subsidiaries that have the right to vote (or are convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of equity securities in the Company or any of its Subsidiaries may vote.
Appears in 2 contracts
Sources: Merger Agreement (TTM Technologies Inc), Merger Agreement (Viasystems Group Inc)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 8,000,000 shares of Company Ordinary Shares Common Stock and 2,000,000 shares of preferred stock, par value $.01 per share (the "Company Preferred Stock"). As of the date of this Agreement, there are (x) 2,943,320 shares of Company Common Stock issued and outstanding and no shares of Company Common Stock held in the Company's treasury, (y) no shares of Company Common Stock reserved for issuance upon exercise of outstanding stock options except for (i) 639,126 shares of Company Common Stock reserved for issuance pursuant to the Company Option Plans and (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued 291,388 shares of Company Capital Common Stock reserved for issuance upon exercise of the option issued to Buyer pursuant to the Stock Option Agreement, dated March 10, 1997, between Buyer and the Company (the "Option Agreement"), and (z) no shares of Company Preferred Stock issued or outstanding, held in the Company's treasury or reserved for issuance upon exercise of outstanding stock options or otherwise. All of the issued and outstanding shares of Company Common Stock have been duly authorized and validly issued, issued and are fully paid up paid, nonassessable and free of preemptive rights, with no sum personal liability attaching to the ownership thereof. Except as referred to above or reflected in Section 3.2(a) of the Disclosure Schedule which is being delivered to Buyer concurrently herewith (the "Company Disclosure Schedule"), the Company does not have and is not bound by any outstanding in respect subscriptions, options, warrants, calls, commitments or agreements of any Sale Share or share held by any Previous Seller. Save character calling for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant purchase or issuance of any Relevant Securities in respect shares of Company Common Stock, Company Preferred Stock or any other equity security of the Company (or any securities representing the right to purchase or otherwise receive any shares of Company Common Stock, Company Preferred Stock or any other than equity security of the Sale Shares Company. The names of the optionees, the date of each option to purchase Company Common Stock granted, the number of shares subject to each such option, the expiration date of each such option, and the A Pref Shares))price at which each such option may be exercised under the Company Option Plans are set forth in Section 3.2(a) of the Company Disclosure Schedule.
(b) Section 5.3(b3.2(b) of the Company Disclosure Letter Schedule sets forth a true and correct list of all of the Subsidiaries of the Company as of the Relevant Time a complete and accurate list date of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertiblethis Agreement. The Company holds no shares of Company Capital Stock Except as set forth in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b3.2(b) of the Company Disclosure Letter are owned Schedule, the Company owns, directly or indirectly, all of the issued and outstanding shares of the capital stock of each of such Subsidiaries, free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between liens, charges, encumbrances and security interests whatsoever, and all of such shares are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights, with no personal liability attaching to the holder thereof and ownership thereof. No Subsidiary of the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of has or is bound by any outstanding Company Share Optionssubscriptions, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion calls, commitments or preemptive rights and rights agreements of first refusal any character calling for the purchase or similar rights) issuance of any shares of capital stock or agreements, orally any other equity security of such Subsidiary or in writing, any securities representing the right to purchase or acquire from the Company otherwise receive any shares of Company Capital Stock, capital stock or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, or other equity security of such Subsidiary. Assuming compliance by Buyer with Section 1.5 hereof, at the Effective Time, there will not be any outstanding subscriptions, options, warrants, calls, commitments or voting interest in, agreements of any character by which the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) Subsidiaries will be bound calling for the Company has not at purchase or issuance of any time purchased, redeemed or repaid any shares of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofof its Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Provident Bankshares Corp), Merger Agreement (First Citizens Financial Corp)
Capitalization. The authorized capital stock of the Company consists of (a) The whole of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 shares of Company Ordinary 180,000,000 Shares and (b) 20,000,000 shares of preferred stock, par value $0.01 per share. At the close of business on December 23, 2005 (the “Capital Structure Date”) (i) 17,725,181 Shares were issued and outstanding, (ii) 17,898 no shares of Seed Preferred Shares. The Sale the preferred stock were issued and outstanding, (iii) no Shares and the shares were held by the Previous Sellers constitute Company in its treasury, (iv) 1,345,594 Shares were reserved for issuance upon exercise of outstanding Options granted under the entire issued Stock Plans and (v) 200,000 shares of Series A participating preferred stock were reserved for issuance pursuant to be issued share capital the Rights Agreement. Section 3.3 of the Company Disclosure Letter sets forth a list of the Company’s outstanding Options, are including the whole exercise prices of all such Options. All issued and outstanding shares of capital stock of the allotted Company and issued shares each of Company Capital Stock and its Subsidiaries have been duly authorized and validly issued, issued and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares)).
(b) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stocknonassessable, and the class or series of such shares, held by each such shareholder and, with respect are not subject to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasuryany preemptive rights. All of the allotted issued and issued outstanding shares of capital stock or other equity interests of each of the Subsidiaries of the Company Capital Stock have been offered, validly issued and sold are owned directly or indirectly by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 3.3, at the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company were issued, reserved for issuance or outstanding. Since the close of business on the Capital Structure Date, no shares of capital stock or other equity securities of the Company have been issued or reserved for issuance or become outstanding, other than Shares described in Section 5.3(dclause (iv) of the Disclosure Lettersecond sentence of this Section 3.3 that have been issued upon the exercise of outstanding Options granted under the Stock Plans. Except as described in this Section, (i) there are no allotted the Company is not party to any outstanding option, warrant, call, subscription or issued options, warrants, rights other right (including conversion any preemptive right), agreement or preemptive rights and rights of first refusal or similar rightscommitment which (w) or agreements, orally or in writing, to purchase or acquire from obligates the Company any shares of Company Capital Stockto issue, deliver, sell or transfer, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchaserepurchase, redeem or otherwise acquire acquire, or cause to be issued delivered, sold or transferred, or repurchased, redeemed or otherwise acquired, any shares of Capital Stockthe capital stock of, or other equity or voting interest interests in, the Company or any security convertible or exercisable for or exchangeable into any capital stock of, or other Person equity interest in, the Company, (x) obligates the Company or to pay any dividend or to make any other distribution in respect of its Capital StockSubsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, commitment, contract, arrangement or undertaking, (iiiy) restricts the Company has not at transfer of any time purchased, redeemed or repaid any shares of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or (z) relates to the voting of any part thereofshares of capital stock of the Company.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Ipayment Inc), Merger Agreement (Ipayment Inc)
Capitalization. (a) The whole authorized capital stock of the allotted Company consists of (i) 150,000,000 Common Shares, of which 20,421,294 Common Shares are issued and issued Company Capital Stock outstanding as of the Relevant Time consists of (i)64,244 shares of Company Ordinary Shares date hereof and (ii) 17,898 5,000,000 shares of Seed Preferred Sharespreferred stock, none of which are issued and outstanding. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued Company does not have any other shares of Company Capital Stock capital stock authorized, issued or outstanding. All outstanding Common Shares are, and have been any additional Common Shares issued after the date hereof and prior to the Effective Time will be, duly authorized and validly issued, and are fully paid up and nonassessable, not subject to any preemptive rights or rights of first refusal created by statute, and offered, issued, sold and delivered in compliance with all applicable federal and state securities Laws. There are no sum is outstanding in declared but unpaid dividends with respect of to any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Common Shares)).
(b) Except for the Company’s Option Plans, the Company has never adopted, sponsored or maintained any stock option plan or any other plan or agreement providing for equity compensation to any Person. The Company Option Plans have been duly authorized, approved and adopted by the Company’s Board of Directors. As of the date hereof, 3,074,861 Company Stock Options are outstanding pursuant to the Company Option Plans, each such option entitling the holder thereof to purchase one Common Share, and 2,060,478 Common Shares are authorized and reserved for future issuance pursuant to the exercise of such Company Stock Options. All Common Shares subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable and offered, issued and delivered in compliance with all applicable federal and state securities Laws. Section 5.3(b3.3(b) of the Company Disclosure Letter sets forth a spreadsheet accurately listing, as of the Relevant Time a complete and accurate list of date hereof, the holders of outstanding Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary SharesStock Options, the number of shares Company Stock Options held by each holder, the grant date, the exercise prices of such outstanding Company Ordinary Shares (if any) into which Stock Options, whether and to what extent the exercisability of such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All option will be accelerated and become exercisable as a result of the allotted transactions contemplated by this Agreement and issued shares whether such option is a non-statutory option or an incentive stock option as defined in Section 422 of Company Capital Stock have been offeredthe Code. Except as set forth above, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) date of this Agreement, there are no Company Stock Rights. The copies of the Disclosure Letter Company Option Plans that are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and filed as exhibits to the Company 10-K are complete and under applicable securities Lawscorrect copies thereof as in effect on the date hereof.
(c) Section 5.3(c) There are no outstanding contractual obligations of the Disclosure Letter sets forth as Company to issue, deliver, sell, repurchase, redeem or otherwise acquire, or cause to be issued, delivered, sold, repurchased, redeemed or otherwise acquired, any capital stock thereof or to pay, or cause to be paid, any dividend or make, or cause to be made, any other distribution in respect thereof or to provide, or cause to be provided, financing to, or make, or cause to be made, any investment (in the form of a loan, capital contribution or otherwise) in, any Person. As of the Relevant Time date hereof, except for the Support Agreement, there are no voting trusts, proxies or other agreements or understandings to which the Company is a complete and accurate list of all holders of outstanding Company Share Options, indicating, party with respect to each Company Share Option, the Company Share Plan under which it was granted, the number voting of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) stock of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grantCompany.
(d) Except Other than the Company’s Investor Rights Agreement, which the Company and the parties thereto have agreed to terminate as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure LetterEffective Time, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal refusal, co-sale rights or similar rights) or agreements, orally or in writing, to purchase or acquire from registration rights granted by the Company any shares with respect to the Company’s capital stock and in effect as of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the date hereof. The Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of adopted a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other stockholder rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofplan.
Appears in 2 contracts
Sources: Merger Agreement (Emergent BioSolutions Inc.), Merger Agreement (Trubion Pharmaceuticals, Inc)
Capitalization. (a) The whole authorized capital of the allotted and issued Company Capital Stock consists, as of the Relevant Time consists date hereof and immediately prior to the Closing (subject to the effect of OP Redemptions and OP Exchanges, if any, that occur between the date hereof and the Closing Date), of:
(i)64,244 i) 100,000,000 shares of Company Ordinary Shares Common Stock, 10,724,009 shares of which are issued and 10,066,907 of which are outstanding. All of the outstanding shares of Common Stock have been duly authorized, are fully paid and nonassessable and were issued in compliance with all applicable federal and state securities Laws.
(ii) 17,898 20,000,000 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Companypreferred stock, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and validly issued$0.01 par value per share, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation“Preferred Stock”), constitutionnone of which are issued and outstanding. The rights, grant or issuance of any Relevant Securities in respect privileges and preferences of the Company (other than Preferred Stock are as stated in the Sale Shares Company’s articles of incorporation and as provided by the A Pref Shares))Georgia Business Corporation Code.
(b) Section 5.3(b) The Stock Plan has been duly adopted by the Board of Directors and approved by the Disclosure Letter sets forth as Company’s shareholders. 139,038 shares have been issued under the Stock Plan pursuant to restricted stock award agreements and all such grants have fully vested. No options to purchase shares have been granted under the Stock Plan, no other awards or grants have been promised by the Company or approved by the Board of Directors, and 514,962 shares of Common Stock remain available for future issuance under the Relevant Time a Stock Plan to officers, directors, employees and consultants. The Company has furnished to the Purchaser complete and accurate list copies of the holders Stock Plan and forms of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Lawsused thereunder.
(c) Section 5.3(c) Other than the provisions of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, Partnership Agreement governing OP Redemptions and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of offering materials related to the Disclosure Letter sets forthOP Exchanges, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted or issued outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Common Stock or Preferred Stock, or from the Operating Partnership any OP Units or any securities convertible into or exchangeable for shares of Company Capital Common Stock or Preferred Stock.
(d) The Company’s restricted stock agreements contain a provision for acceleration of vesting or other changes in the vesting provisions or other terms of such agreement or understanding upon the occurrence of any event or combination of events, (ii) the but there are no unvested shares of restricted stock outstanding. The Company has never granted any stock options.
(e) The OP Units issued and outstanding prior to the Effective Date were issued in accordance with the Partnership Agreement and in compliance with applicable securities Laws and were not issued in violation of any preemptive or similar rights. Other than the provisions of the Partnership Agreement governing OP Redemptions and the offering materials related to the OP Exchanges, no obligation (contingent options, warrants or otherwise) other rights to purchase, redeem agreements or otherwise acquire any shares of Capital Stockother obligations to issue, or other equity rights to convert any obligations into or voting interest inexchange any securities for, OP Units of or ownership interests in the Company Operating Partnership are or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) will be outstanding at the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofClosing.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Acre Realty Investors Inc), Stock Purchase Agreement (Roberts Realty Investors Inc)
Capitalization. (a) The whole authorized capital stock of the allotted Company consists of 1,000,000,000 Shares and issued 200,000,000 shares of preferred stock, par value $0.001 per share (“Company Capital Stock as Preferred Stock”). As of the Relevant Time consists close of business on September 2, 2016 (i)64,244 shares of Company Ordinary the “Determination Date”), (A) 30,464,596 Shares and (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire were issued and outstanding, Table of Contents (B) 4,616,496 Shares were subject to be issued share capital of outstanding Company Options and 207,123 Shares were subject to outstanding purchase rights under the CompanyCompany ESPP, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding (C) 2,548,269 Shares were issuable in respect of any Sale Share or share held by any Previous Seller. Save for the Sale outstanding Restricted Stock Units, (D) up to 3,495 Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist were issuable in respect of the Warrant, (E) no Shares were held by the Company as treasury shares and (nor is there F) no shares of Company Preferred Stock were issued and outstanding or held by the Company as treasury shares. Since the close of business on the Determination Date, the Company has not issued, granted or repurchased any agreement Company Securities other than pursuant to the exercise of Company Options or arrangement for settlement of Restricted Stock Units granted prior to the creationDetermination Date. All outstanding Shares are validly issued, constitutionfully paid, grant or issuance nonassessable and free of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))preemptive rights.
(b) Section 5.3(b) of 7,164,765 Shares are subject to issuance pursuant to Outstanding Stock Awards and 207,123 Shares were subject to purchase rights under the Disclosure Letter sets forth Company ESPP, in each case outstanding as of the Relevant Time a complete and accurate list close of business on the holders of Determination Date. Since the Determination Date, the Company Capital Stockhas not granted, showing the number of shares of such Capital Stock, and the class committed to grant or series of such shares, held by each such shareholder and, otherwise created or assumed any obligation with respect to shares any Stock Award, other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasuryas permitted by Section 5.2. All of the allotted and issued shares of Company Capital Stock Awards have been offered, validly issued granted and sold by the Company properly approved in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, with all applicable securities Laws Applicable Law and the Company’s articles of association. To the Company’s knowledge, the shares of applicable Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities LawsEquity Incentive Plan.
(c) Except as set forth in this Section 5.3(c3.5, there are (i) no outstanding shares of capital stock of, or other equity or voting interest in, the Company, (ii) no outstanding securities of the Company convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, the Company, (iii) no outstanding options, stock appreciation rights, warrants, restricted stock units, rights or other commitments or agreements to acquire from the Company, or that obligates the Company to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, the Company, (iv) no obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment (whether payable in equity, cash or otherwise) relating to any capital stock of, or other equity or voting interest (including any voting debt) in, the Company, (v) no outstanding restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other securities or ownership interests in, the Company (the items in clauses (i), (ii), (iii), (iv) and (v), together with the capital stock of the Company, being referred to collectively as “Company Securities”), (vi) no voting trusts, proxies, voting agreements or similar arrangements or understandings to which the Company is a party or by which the Company is bound with respect to the voting of any shares of capital stock of, or other equity or voting interest in, the Company, (vii) no obligations or binding commitments of any character restricting the transfer of any shares of capital stock of, or other equity or voting interest in, the Company to which the Company is a party or by which it is bound, and (viii) no other obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the Company Securities. There are no outstanding Contracts of any kind which obligate the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Company Securities. Section 3.5(c) of the Company Disclosure Letter sets forth contains a correct and complete list as of the Relevant Time a complete and accurate list of all holders Determination Date of outstanding Company Share OptionsOptions and Restricted Stock Units, indicatingincluding the holder, with respect to each the location of employment of any holder that is a current employee of the Company Share Optionas reflected in the current records of the Company, the Company Share Equity Incentive Plan under which it the award was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise pricegranted (if applicable), the date of grant, and the vesting schedule term (including any acceleration provisions with respect theretofor Company Options). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time where applicable, a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Shares underlying such Company Ordinary Shares issued thereunderSecurity and, the number of shares of Company Ordinary Shares subject to outstanding options thereunder where applicable, exercise price and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Sharesvesting schedule. Each Company Share Option (ix) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share Common Stock on the effective date of such grant, (y) has a grant date identical to the grant date approved by the Company Board or the compensation committee of the Company Board, which is either the date on which the Company Option was awarded or a later date specified by the Company Board or the compensation committee of the Company Board and (z) was granted in material compliance with all Applicable Laws. No Subsidiary of the Company owns any Shares or any other Company Security.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there There are no allotted accrued and unpaid dividends with respect to any outstanding Shares. The Company does not have a stockholder rights plan in effect. Table of Contents
(e) The Company does not have outstanding any bonds, debentures, notes or issued optionsother obligations the holders of which have the right to vote (or convertible into or exercisable for Company Securities with the right to vote) with the Company’s stockholders on any matter.
(f) Neither the Company nor any of its Subsidiaries is a party to any Contracts restricting the transfer of, warrantsrelating to the voting of, requiring registration of, or granting any preemptive rights, anti-dilutive rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, rights with respect to purchase or acquire from the any Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofSecurities.
Appears in 2 contracts
Capitalization. (a) The whole As of the allotted date of this Agreement, the authorized capital stock of Public Company consists of 3,750,000 shares of Public Company Common Stock and 10,000,000 shares of preferred stock, $0.001 par value per share (“Public Company Preferred Stock”). The rights and privileges of each class of Public Company’s capital stock are as set forth in Public Company’s articles of incorporation (as defined in NRS 78.010(1)(b)). As of the close of business on the Business Day immediately prior to the date of this Agreement, (i) 1,320,240 shares of Public Company Common Stock were issued or outstanding, (ii) no shares of Public Company Capital Common Stock were held in the treasury of Public Company or by subsidiaries of Public Company, and (iii) 15,617 shares of Public Company Preferred Stock were issued or outstanding.
(b) As of the date of this Agreement, there are outstanding options to purchase 135,941 shares of Public Company Common Stock (each, a “Public Company Stock Option” and collectively, the “Public Company Stock Options”). Public Company has made available to Merger Partner complete and accurate copies of all stock or equity related plans, agreements, or arrangements of Public Company (collectively, the “Public Company Stock Plans”) and the forms of all award agreements evidencing such awards. As of the date of this Agreement, Public Company has reserved 9,375 shares of Public Company Common Stock for issuance to employees pursuant to Public Company’s 2023 Employee Stock Purchase Plan (the “Public Company ESPP”), of which 8,337 shares remain available for issuance thereunder as of the Relevant Time consists of (i)64,244 shares of date hereof. Public Company Ordinary Shares and (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and has not granted, issued or authorized the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities Public Company Stock Options on the Business Day prior to the date of this Agreement or on the date of this Agreement. With respect to each Public Company Stock Option (whether outstanding or previously exercised) (i) each grant of a Public Company Stock Option was duly authorized no later than the date on which the grant of such Public Company Stock Option was by its terms to be effective by all necessary corporate action, including, as applicable, approval by the Public Company’s Board of Directors (or a duly constituted and authorized committee thereof), or a duly authorized delegate thereof, and any required stockholder approval by the necessary number of votes or written consents, (ii) each such grant was made in respect accordance with the terms of the applicable Public Company (Stock Plan, the Securities Act, the Exchange Act, to the extent applicable, and all other than applicable Laws and are not and have not been the Sale Shares and the A Pref Shares))subject of any internal investigation, review or inquiry.
(bc) Section 5.3(b4.2(c) of the Public Company Disclosure Letter sets forth Schedule lists, as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Sharesdate hereof, the number of shares of Public Company Ordinary Shares Common Stock reserved for future issuance pursuant to warrants or other outstanding rights (if anyother than Public Company Stock Options) into which such shares are convertible. The Company holds no to purchase shares of Public Company Capital Common Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned outstanding as of the Relevant Time by each record holder listed close of business on Section 5.3(bthe Business Day prior to the date of this Agreement (such outstanding warrants or other rights, the “Public Company Warrants”) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan agreement or other document under which it was such Public Company Warrants were granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, and the exercise price, the date of grant, grant and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the expiration date of such grantthereof.
(d) Except (i) as set forth in this Section 5.3 4.2 or in Section 5.3(dArticle II, (ii) as reserved for future grants under Public Company Stock Plans, outstanding as of the Disclosure Letterclose of business on the Business Day prior to the date of this Agreement, (iiii) as reserved for issuance and issuable upon conversion of outstanding shares of Public Company Preferred Stock, (iv) for the rights to acquire shares pursuant to the Public Company ESPP, and (v) commitments to issue shares of Public Company Common Stock pursuant to the Subscription Agreement in the Concurrent Financing, as of the date of this Agreement, (A) there are no allotted equity securities of any class of Public Company, or issued any security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding and (B) there are no options, warrants, rights (including conversion equity securities, calls, rights, commitments or preemptive rights and rights agreements of first refusal any character to which Public Company or similar rights) any of its subsidiaries is a party or agreementsby which Public Company or any of its subsidiaries is bound obligating Public Company or any of its subsidiaries to issue, orally exchange, transfer, deliver or in writingsell, or cause to purchase be issued, exchanged, transferred, delivered or acquire from the Company any sold, additional shares of capital stock or other equity interests of Public Company Capital Stock, or any securities security or rights convertible into or exchangeable or exercisable for any such shares or other equity interests, or obligating Public Company or any of its subsidiaries to grant, extend, accelerate the vesting of, otherwise modify or amend or enter into any such option, warrant, equity security, call, right, commitment or agreement. As of the date of this Agreement, other than the Public Company Capital StockSupport Agreement or pursuant to any Public Company Stock Plan, Public Company is not a party to or is bound by any, and to the knowledge of Public Company, there are no, agreements or understandings with respect to the voting (iiincluding voting trusts and proxies) the Company has no obligation or sale or transfer (contingent or otherwiseincluding agreements imposing transfer restrictions) to purchase, redeem or otherwise acquire of any shares of Capital Stock, capital stock or other equity or voting interest ininterests of Public Company. Except as contemplated by this Agreement, the Subscription Agreement or described in this Section 4.2(d), there are no registration rights to which Public Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at subsidiaries is a party or by which it or they are bound with respect to any time purchased, redeemed or repaid any equity security of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital Public Company. Stockholders of Public Company are not entitled to dissenters’ or carried out any transaction having appraisal rights under applicable state Law in connection with the effect of a reduction of capitalMerger, and (iv) there are no allotted, issued the Public Company Board has not adopted or authorized stock appreciation rights, phantom stock awards or other rights that are linked in approved any way resolution pursuant to the price NRS or otherwise granting dissenter’s, appraisal or similar rights to any holder of the shares of Public Company Capital Common Stock or any other equity interests of or in Public Company, or to any other Person.
(e) All outstanding shares of Public Company Common Stock are, and all shares of Public Company Common Stock subject to issuance as specified in Sections 4.2(b) and 4.2(c) or pursuant to Article II, upon issuance on the value terms and conditions specified in the instruments pursuant to which they are issuable, will be, duly authorized, validly issued, fully paid and nonassessable and not subject to or issued in violation of the Company any purchase option, call option, right of first refusal, preemptive right, subscription right or any part thereofsimilar right under any provision of NRS Chapter 78, Public Company’s articles of incorporation or bylaws or any agreement to which Public Company is a party or is otherwise bound.
Appears in 2 contracts
Sources: Merger Agreement (Pieris Pharmaceuticals, Inc.), Merger Agreement (Pieris Pharmaceuticals, Inc.)
Capitalization. (a) The whole of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 shares of Company Ordinary Shares and (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share authorized capital of the Company, are the whole Company consists of an unlimited number of Shares and an unlimited number of Class A Preferred Shares issuable in series. As of the allotted close of business on the Business Day prior to the date of this Agreement, there were 49,816,065 Shares issued and outstanding and no Class A Preferred Shares issued shares of Company Capital Stock and outstanding. All outstanding Shares have been duly authorized and validly issued, and are fully paid up and no sum is outstanding non-assessable. No Shares have been issued in respect violation of any Sale Share Law or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement pre-emptive or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))similar rights applicable to them.
(b) As of the close of business on the Business Day prior to the date of this Agreement there were 2,088,805 Shares issuable upon the exercise of outstanding Company Options. Section 5.3(b6(b) of the Company Disclosure Letter sets forth as of the Relevant Time contains a complete and accurate list of the holders of Company Capital StockOptions, showing with details regarding the exercise price, whether such Company Options are vested or unvested and the number of shares of participants to whom such Capital Stock, Company Options have been granted. The Stock Option Plan and the class or series issuance of securities under such shares, held plan (including all outstanding Company Options) have been duly authorized by each such shareholder and, the Board in compliance with respect to shares other than Company Ordinary Shares, Law and the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All terms of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities LawsOption Plan.
(c) As of the close of business on the Business Day prior to the date of this Agreement there were 1,459,033 Shares issuable upon the exercise of outstanding RSUs. Section 5.3(c6(c) of the Company Disclosure Letter sets forth as contains a list of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicatingRSUs, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, details regarding the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder whether such RSUs are vested or unvested and the number of shares participants to whom such RSUs have been granted. The Share Unit Plan and the issuance of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(csecurities under such plan (including all outstanding RSUs) of have been duly authorized by the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted Board in compliance with all applicable Laws Law and all the terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grantUnit Plan.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) As of the Disclosure Letterclose of business on the Business Day prior to the date of this Agreement, there were 1,630,790 DSUs outstanding.
(e) Except for the rights under the Stock Option Plan, including outstanding Company Options, the rights under the Share Unit Plan, including outstanding RSUs, the rights under the DSU Plan, including outstanding DSUs, the rights under the Employee Share Purchase Plan, including outstanding Shares, there are no:
(i) there are no allotted or issued options, subscriptions, equity-based awards, calls, rights, warrants, rights (including conversion or preemptive rights and rights of first refusal contingent value rights, phantom stock, convertible securities or similar securities convertible into or exchangeable or exercisable for Shares, conversion, pre-emptive, redemption, repurchase, stock appreciation or other rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any other agreements, arrangements, instruments or commitments of any kind to which the Company or the Subsidiary are a party that obligate the Company or the Subsidiary to, directly or indirectly, issue or sell any securities of the Company or of the Subsidiary (or securities convertible into or exchangeable for shares such securities or equity interests), or give any Person a right to subscribe for or acquire, any securities of the Company Capital Stock, or of the Subsidiary;
(ii) obligations of the Company has no obligation (contingent or otherwise) of the Subsidiary to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value securities of the Company or of the Subsidiary, or qualify securities for public distribution in Canada, the U.S. or elsewhere, or, other than as contemplated by this Agreement, with respect to the voting or disposition of any part thereofsecurities of the Company or of the Subsidiary; or
(iii) notes, bonds, debentures or other evidences of indebtedness or any other agreements, arrangements, instruments or commitments of any kind that give any Person, directly or indirectly, the right to vote (or that are convertible into or exercisable for securities having the right to vote) with holders of Shares on any matter except as required by Law.
Appears in 2 contracts
Sources: Arrangement Agreement (Spire Global, Inc.), Arrangement Agreement (Spire Global, Inc.)
Capitalization. (a) The whole As of the allotted and issued Company Capital Stock as of date hereof, the Relevant Time consists of (i)64,244 shares of Company Ordinary Shares and (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share authorized capital stock of the Company, and shares issued and outstanding, is as set forth in the Company’s most recent periodic report filed with the SEC, with the exception of (i) shares issued and outstanding subsequent to the Company’s most recent periodic report filed with the SEC, which are otherwise disclosed in the whole SEC Documents or that do not materially change the number of shares issued and outstanding and will be disclosed in the allotted and Company’s next periodic report, (ii) 2,917 shares issued to independent directors in connection with services provided in the quarter ended December 31, 2019, (iii) 188 shares of Company Capital Stock and have been duly authorized and validly issuedissued to certain service providers in connection with services provided in the quarter ended December 31, 2019, and are fully paid up (iv) adjustment to the number of shares issued and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for connection with the Sale Shares and the shares Company’s reverse stock split on January 15, 2020 as disclosed in the Company held by SEC Documents. Except as disclosed in the Previous SellersSEC Documents or in connection with recently issued convertible securities that have substantially similar terms to previously issued and disclosed convertible securities (in the principal amount of no more than $63,501.15), do not materially change the number of shares reserved for issuance, and will be disclosed in the Company’s next periodic report, no Relevant Securities exist in respect of shares are reserved for issuance pursuant to the Company (nor is there any agreement or arrangement Company’s stock option plans, no shares are reserved for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company pursuant to securities (other than the Sale Shares and the A Pref Shares)).
(bNote) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stockexercisable for, showing the number of or convertible into, or exchangeable for shares of such Capital Common Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such 327,230 shares are convertible. The Company holds no shares reserved for issuance upon conversion of Company Capital Stock in its treasurythe Note. All of the allotted and issued such outstanding shares of Company Capital Stock have been offeredcapital stock are, or upon issuance will be, duly authorized, validly issued issued, fully paid and sold by non-assessable. No shares of capital stock of the Company in compliance and accordance with, and no transfer (are subject to preemptive rights or purported transfer) any other similar rights of the shareholders of the Company or any shares liens or encumbrances imposed through the actions or failure to act of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To Except as disclosed in the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forthSEC Documents or described herein, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the effective date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure LetterAgreement, (i) there are no allotted or issued outstanding options, warrants, scrip, rights (including conversion or preemptive rights and to subscribe for, puts, calls, rights of first refusal or similar rights) or refusal, agreements, orally understandings, claims or in writing, to purchase other commitments or acquire from the Company rights of any shares of Company Capital Stockcharacter whatsoever relating to, or any securities or rights convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofof its Subsidiaries, or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries, (ii) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of its or their securities under the 1933 Act and (iii) there are no anti-dilution or price adjustment provisions contained in any security issued by the Company (or in any agreement providing rights to security holders) that will be triggered by the issuance of the Note, Commitment Shares, Returnable Shares, or the Conversion Shares. The Company has filed in its SEC Documents true and correct copies of the Company’s Certificate of Incorporation as in effect on the date hereof (“Certificate of Incorporation”), the Company’s By-laws, as in effect on the date hereof (the “By-laws”), and the terms of all securities convertible into or exercisable for Common Stock of the Company and the material rights of the holders thereof in respect thereto, with the exception of recently issued convertible securities that have substantially similar terms to previously issued and disclosed convertible securities (in the principal amount of no more than $63,501.15), do not materially change the number of shares reserved for issuance, and will be disclosed in the Company’s next periodic report. The Company shall provide the Buyer with a written update of this representation signed by the Company’s Chief Executive on behalf of the Company as of the Closing Date.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Cardax, Inc.), Securities Purchase Agreement (Cardax, Inc.)
Capitalization. (a) The whole authorized capital stock of the allotted Company consists of (i) 20,000,000 common shares, no par value, and as of August 14, 2019 there are 7,293,697 shares issued and outstanding (including 16,275 shares issued in respect of Company Capital Restricted Stock Awards) and of which no shares are held in treasury. The Company has no authorized, issued or outstanding preferred shares. The Company’s common shares (the “Shares”), as described above, constitute all of the issued and outstanding capital stock of the Company as of the Relevant Time consists date of (i)64,244 shares of Company Ordinary Shares and (ii) 17,898 shares of Seed Preferred Sharesthis Agreement. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and authorized, validly issued, issued and are fully paid up and no sum is outstanding nonassessable. None of the Shares have been issued or disposed of in respect violation of any Sale Share or share held by preemptive rights of any Previous SellerPerson. Save As of the date of this Agreement, 92,485 Shares were reserved for issuance upon the Sale exercise of outstanding Company Stock Options and 103,173 Shares were available for future grants of equity awards under Company Stock Plans. The Company has furnished to Parent a true, complete copy of any Company Stock Plan, and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect Schedule 3.6(a) of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares)).
(b) Section 5.3(b) of the Disclosure Letter Schedule sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders participants in any such Company Stock Plan as of outstanding the date hereof and identifies the number of Shares subject to Company Share OptionsStock Plans held by each participant therein, indicatingthe exercise price or prices of any Company Equity Award, if applicable, and the dates each Company Equity Award was granted, becomes exercisable (if applicable) and expires (if applicable). As of the date of this Agreement, no trust preferred or subordinated debt securities of the Company or any of its Subsidiaries are issued or outstanding. The Company has not elected to defer interest payments with respect to each Company Share Optionany trust preferred securities or related debentures issued by it or any of its affiliates. All outstanding shares or ownership interests of Bank of New Jersey are validly issued, fully paid and nonassessable and directly and wholly owned by the Company Share Plan under which it was granted, the number free and clear of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule any Liens other than Permitted Liens.
(including any acceleration provisions with respect thereto). Section 5.3(cb) Except as disclosed in Schedule 3.6(b) of the Company Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure LetterSchedule, there is are no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option outstanding (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letterrights, (i) there are no allotted or issued plans, options, warrants, calls, conversion rights (including conversion or preemptive rights and rights of first refusal or similar rights) or any agreements, orally arrangements or in writing, to purchase commitments of any kind or acquire from character (either firm or conditional) obligating the Company or any shares of Company Capital Stockits Affiliates to issue, deliver or sell, or cause to be delivered or sold, any capital stock of the Company, or any securities exchangeable for or convertible into or exchangeable for shares the capital stock of Company Capital Stockthe Company, (ii) contractual obligations of the Company has no obligation (contingent or otherwise) any of its Affiliates, or rights of a Person, to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or its Subsidiaries, or (iii) proxies, voting agreements (except for the Voting Agreements), voting trusts, preemptive rights, rights of first refusal, rights of first offer, rights of co-sale or tag-along rights, shareholder agreements or other rights, understandings or arrangements regarding the voting or disposition of the Shares. No bonds, debentures, notes or other indebtedness having the right to vote on any part thereofmatters on which the holders of capital stock may vote have been issued by the Company and are outstanding.
(c) No Subsidiary of the Company owns any capital stock of the Company.
Appears in 2 contracts
Sources: Merger Agreement (Bancorp of New Jersey, Inc.), Merger Agreement (ConnectOne Bancorp, Inc.)
Capitalization. (a) The whole As of the allotted and issued Company Capital Stock as close of business on January 30, 2015 (the “Capitalization Date”), the authorized capital stock of the Relevant Time consists Company consisted of (i)64,244 i) 400,000,000 shares of Company Ordinary Shares Common Stock, of which 170,771,809 shares were issued and outstanding (inclusive of Company Restricted Shares) and 13,194,668 shares were held by the Company as treasury stock and (ii) 17,898 50,000,000 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company’s preferred stock, par value $0.01 per share (“Company Preferred Stock”), of which no shares were issued and outstanding. There are the whole no other classes of capital stock of the allotted Company authorized or issued and outstanding. All issued and outstanding shares of the capital stock of the Company have been, and all shares of Company Capital Common Stock and have been that may be issued pursuant to any Company Plan will, when issued be duly authorized and authorized, validly issued, and are fully paid up and non-assessable, and no sum class of capital stock is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))entitled to preemptive rights.
(b) From the close of business on the Capitalization Date through the date of this Agreement, there have been no issuances of shares of Company Common Stock, Company Preferred Stock or any other Equity Interests of the Company other than (i) issuances of shares of Company Common Stock pursuant to the exercise of Company Options and the vesting and settlement of Company Restricted Shares, Company Restricted Stock Units and Company Performance Share Awards, in each case, outstanding as of the Capitalization Date under the Company Equity Plan and (ii) issuances of shares of Company Common Stock under the terms of the ESPPs. As of the close of business on the Capitalization Date, there were no options, warrants, calls, commitments, agreements, convertible securities or any other rights to acquire capital stock from the Company to which the Company is a party other than the ESPPs, Company Options, Company Restricted Shares, Company Restricted Stock Units and Company Performance Share Awards as set forth in Section 5.3(b3.5(b) of the Company Disclosure Letter. Section 3.5(b)(i) of the Company Disclosure Letter sets forth a true and complete list, as of the Relevant Time a complete and accurate list Capitalization Date, of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Common Stock subject to Company Options, Company Restricted Stock Units, Company Performance Share Awards, Company Restricted Shares or any other rights to purchase or receive Company Common Stock granted under the Company Equity Plan or otherwise (if any) into which such shares are convertible. The Company holds no other than rights to purchase shares of Company Capital Common Stock in its treasury. All of under the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance withESPPs), and no transfer with respect to each such award (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned except as of the Relevant Time by each record holder listed set forth on such Section 5.3(b3.5(b)(i) of the Company Disclosure Letter), the date of grant and the extent to which such award is vested. Not later than five (5) business days prior to the Effective Time, the Company will update such Section 3.5(b)(i) of the Company Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Lawsprovide such updated schedule to Parent.
(c) Section 5.3(c) No Indebtedness of the Disclosure Letter sets forth as Company having the right to vote (or convertible into or exercisable for securities having the right to vote) generally with the holders of capital stock of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares is issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grantoutstanding.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) As of the Disclosure Letterdate of this Agreement, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights outstanding contractual obligations of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofof its subsidiaries except for purchases, redemptions or other acquisitions of capital stock (A) required by the terms of the Company Equity Plan or any other Company Plan, (B) in order to pay Taxes or satisfy withholding obligations in respect of such Taxes in connection with awards under the Company Equity Plan or otherwise, or (C) as required by the terms of, or necessary for the administration of, any plans, arrangements or agreements existing on the date hereof between the Company or any of its subsidiaries and any director or employee of the Company or any of its subsidiaries and (ii) there are no outstanding stock-appreciation rights, security-based performance units, “phantom” stock or other security rights or other agreements, arrangements or commitments of any character (contingent or otherwise) to which the Company or any of its subsidiaries is a party and pursuant to which any third party is or may be entitled to receive any payment or other value from the Company or its subsidiaries based on the stock price performance of the Company or any of its subsidiaries (other than under the Company Equity Plan or any other Company Plan set forth on Section 3.5(d) of the Company Disclosure Letter).
(e) As of the date of this Agreement, except as otherwise set forth in this Section 3.5, with respect to any shares of Company Common Stock, Company Preferred Stock or other Equity Interests in the Company, there are (A) no voting trusts or similar agreements to which the Company is a party with respect to the voting of such shares, (B) to the knowledge of the Company, no agreements to which the Company or its subsidiaries is a party restricting the transfer of such shares and (C) no outstanding contractual obligations of the Company to any third party (i) requiring the sale, issuance or disposition of, or containing any right of first refusal with respect to such shares, (ii) requiring the registration for sale of such shares or (iii) to grant any preemptive or anti-dilutive rights.
Appears in 2 contracts
Sources: Merger Agreement (Hospira Inc), Merger Agreement (Pfizer Inc)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 300,000 shares of Company Ordinary Shares Common Stock, of which 280,000 shares are designated as Voting Company Common Stock and 20,000 shares are designated as Non-Voting Company Common Stock, and 200,000 shares of preferred stock. As of March 27, 2025, there were (i) 64,230.0724 shares of Company Common Stock issued and outstanding, of which 60,854.0724 shares were Voting Company Common Stock and 3,376 shares were Non-Voting Company Common Stock; (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued no shares of Company Capital Common Stock held in treasury; (iii) 13.33 shares of Company Common Stock reserved for issuance upon the settlement of outstanding Company RSU Awards, 121.40 shares are reserved for issuance upon the settlement of outstanding incentive unit awards (assuming performance goals are satisfied at target level); (iv) 2,049.80 shares of Company Common Stock reserved for issuance pursuant to future grants under the Company Equity Plans; and (v) no shares of preferred stock issued and outstanding. As of the date of this Agreement, except as set forth in the immediately preceding sentence, and for changes since March 27, 2025 resulting from the exercise, vesting or settlement of any Company RSU Awards described in the immediately preceding sentence, there were no shares of capital stock or other voting securities or equity interests of Company issued, reserved for issuance or outstanding. All the issued and outstanding shares of Company Common Stock have been duly authorized and validly issued, issued and are fully paid up paid, nonassessable (except as provided under 12 U.S.C. § 55 or comparable state law (as applicable)) and no sum is outstanding in respect free of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares)).
(b) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder andpreemptive rights, with respect no personal liability attaching to shares other the ownership thereof. Other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c3.2(a) of the Company Disclosure LetterSchedule, there is are no allotted trust preferred or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series subordinated debt securities of Company Capital Stock or any Company Subsidiary issued or outstanding. There are no bonds, debentures, notes or other indebtedness that have the right to vote on any matters on which shareholders of Company may vote. Other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions RSU Awards, as of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) Agreement there are no allotted or issued outstanding subscriptions, options, warrants, stock appreciation rights, phantom units, scrip, rights (including conversion to subscribe to, preemptive rights, anti-dilutive rights, or preemptive rights and rights of first refusal or similar rights) , puts, calls, commitments or agreementsagreements of any character to which Company or any of its Subsidiaries is a party relating to, orally or in writingsecurities or rights convertible or exchangeable into or exercisable for, to purchase or acquire from the Company any valued by reference to, shares of Company Capital Stockcapital stock or other voting or equity securities of or ownership interest in Company, or any securities convertible into contracts, commitments, understandings or exchangeable for arrangements by which Company may become bound to issue additional shares of its capital stock or other equity or voting securities of or ownership interests in Company, or that otherwise obligate Company Capital Stockto issue, (ii) the Company has no obligation (contingent or otherwise) to transfer, sell, purchase, redeem or otherwise acquire acquire, any of the foregoing (collectively, “Company Securities,” and any of the foregoing in respect of Company Subsidiaries, collectively, “Company Subsidiary Securities”). Other than Company RSU Awards, no equity-based awards (including any cash awards where the amount of payment is determined, in whole or in part, based on the price of any capital stock of Company or any of its Subsidiaries) are outstanding as of the date of this Agreement. Other than the Existing Shareholders Agreement and as set forth on Section 3.2(a) of the Company Disclosure Schedule, there are no voting trusts, shareholder agreements, proxies or other agreements in effect to which Company or any of its Subsidiaries is a party or bound with respect to the voting or transfer of Company Common Stock, capital stock or other voting or equity securities or ownership interests of Company or granting any shareholder or other person any registration rights.
(b) Company owns, directly or indirectly, all the issued and outstanding shares of Capital Stock, capital stock or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect ownership interests of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any each of the Company Capital Stock or otherwise agreed to reduce Subsidiaries, free and clear of any class of its issued share capital or carried out any transaction having the effect of a reduction of capitalliens, claims, title defects, mortgages, pledges, charges, encumbrances and security interests whatsoever (“Liens”), and all such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable (ivexcept, with respect to any Subsidiaries that are depository institutions, as provided under 12 U.S.C. § 55 or comparable state law (as applicable)) there are no allotted, issued or authorized stock appreciation and free of preemptive rights, phantom stock awards or other rights that are linked in any way with no personal liability attaching to the price ownership thereof. No Company Subsidiary owns any capital stock of the Company Capital Stock or the value of the Company or any part thereofCompany.
Appears in 2 contracts
Sources: Merger Agreement (HomeStreet, Inc.), Merger Agreement (HomeStreet, Inc.)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 45,000,000 shares of Company Ordinary Shares capital stock, of which 40,000,000 are designated as Company common stock (“Company Common Stock”), par value $.001 per share and of which 5,000,000 are designated as preferred shares, par value $.001 per share (“Company Preferred Shares”). As of the date hereof, there are (i) 29,376,201 shares of Company Common Stock issued and outstanding and 56,960 shares of Company Common Stock held in the Company’s treasury, (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued 1,573,011 shares of Company Capital Common Stock reserved for issuance upon exercise of Company Stock Options, (iii) 2,272,715 shares of Company Common Stock reserved for issuance upon exercise of Company Warrants and (iv) no Company Preferred Shares issued and outstanding, held in the Company’s treasury or reserved for issuance. All of the issued and outstanding shares of Company Common Stock have been duly authorized and validly issued, issued and are fully paid up paid, nonassessable and free of preemptive rights, with no sum is outstanding in respect of any Sale Share personal liability attaching to the ownership thereof. Other than as referenced above or share held by any Previous Seller. Save for the Sale Shares and the shares disclosed in the Company held by the Previous SellersSEC Reports, no Relevant Securities exist in respect of the Company (nor does not have and is there not bound by any agreement outstanding subscriptions, options, warrants, calls, commitments or arrangement agreements of any character calling for the creation, constitution, grant purchase or issuance of any Relevant Securities in respect of the Company (other than the Sale Common Stock or Company Preferred Shares and the A Pref Shares)).
(b) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value equity security of the Company or any part thereofsecurities representing the right to purchase or otherwise receive any Company Common Stock or any other equity security of the Company. Except as disclosed in the Company SEC Reports, the Company owns 100% of the outstanding equity interests in each Subsidiary. Except for the Stockholder Agreement and except as disclosed in the Company SEC Reports, there are not as of the date hereof and there will not be at the Effective Time any stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party or to which it is bound relating to the voting of any shares of the capital stock of the Company. Except as disclosed in the Company SEC Reports, there are no existing rights with respect to the registration of Company Common Stock under the Securities Act, including, but not limited to, demand rights or piggy-back registration rights. Except as disclosed in the Company SEC Reports or as set forth in Section 3.2 of the Company Disclosure Schedule, since October 31, 2005 through the date hereof no options or warrants have been issued or accelerated or had their terms modified.
Appears in 2 contracts
Sources: Merger Agreement (Unify Corp), Merger Agreement (Warp Technology Holdings Inc)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock consists of (i) 300,000,000 shares of Company Common Stock, par value $0.001 per share, of which, as of the Relevant Time consists close of business on February 19, 2015, there were 64,248,533 shares issued and outstanding (i)64,244 none were held in the treasury of the Company) (which excludes 1,364,351 shares of Company Ordinary Shares Restricted Stock) and (ii) 17,898 5,000,000 shares of Seed preferred stock, par value $0.001 per share (the “Company Preferred Shares. The Sale Shares and the Stock”), of which no shares held by the Previous Sellers constitute the entire are issued and to be issued share capital outstanding or reserved for future issuance under any agreement, arrangement or understanding. All of the Company, are the whole of the allotted and issued outstanding shares of Company Capital Common Stock and have been duly authorized and validly issued, issued and are fully paid up paid, nonassessable and no sum is outstanding in respect free of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))preemptive rights.
(b) Section 5.3(b) As of the Disclosure Letter sets forth as close of the Relevant Time a complete and accurate list of the holders of Company Capital Stockbusiness on February 19, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares2015, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds had no shares of Company Capital Common Stock or Company Preferred Stock reserved for or otherwise subject to issuance, except for 105,199 shares of Company Common Stock reserved for issuance pursuant to the exercise of outstanding Company Options under the Company Stock Plans, 3,723,687 shares of Company Common Stock reserved for issuance and available for grant under the Company Stock Plans (not including shares of Company Common Stock reserved for issuance with respect to outstanding Company Options), 17,922,239 shares of Company Common Stock issuable upon conversion of the Company Convertible Debt (assuming no make-whole adjustment and assuming all conversions are settled solely in its treasuryshares of Company Common Stock), and 10,484,343 shares of Company Common Stock subject to the Warrants. All of the allotted Company Options and issued shares of Company Capital Restricted Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) granted to service providers of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
its Subsidiaries (cor any predecessor company) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect pursuant to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Stock Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (iA) was granted in compliance in all material respects with all applicable Laws Law and all of the terms and conditions of the applicable Company Share Plan Stock Plans, (B) has a grant date identical to the date on which the Company Board (or, if appropriate, any committee thereof) actually awarded such Company Option, (C) qualifies for the tax and accounting treatment afforded to such Company Option in the Tax Returns of the Company and the Company SEC Documents, respectively and (iiD) has was granted with an exercise price per share of Company Ordinary Share equal to or greater that was not less than the fair market value of a share of Company Ordinary Share on the date of grant. All shares of Company Common Stock subject to issuance under the Company Stock Plans, upon issuance prior to the Effective Time on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights. Section 3.2(b)(i) of the Company Disclosure Schedule sets forth a true and complete list, as of the date of this Agreement, of (A) each holder of Company Options and Company Restricted Stock, (B) the number of Company Options and shares of Company Restricted Stock held by such grantholder as of the date of this Agreement, (C) the number of shares of Company Common Stock subject to each Company Option (i.e., the original amount less exercises, if applicable, and any cancellations), (D) the grant date, exercise or purchase price, expiration date and vesting schedule of each such Company Option and share of Company Restricted Stock, as applicable, and (E) whether each Company Option is intended to qualify as an “incentive stock option” within the meaning of Section 422 of the Code. Section 3.2(b)(ii) of the Company Disclosure Schedule sets forth the conversion rate for each series of Convertible Senior Notes as of the close of business on February 19, 2015.
(c) Except for the Company Convertible Debt, Company Options to purchase not more than 105,199 shares of Company Common Stock, the Warrants to purchase not more than 10,484,343 shares of Company Common Stock and 1,364,351 shares of unvested Company Restricted Stock, there are no options, warrants or other rights, agreements, arrangements, stock appreciation rights, calls or commitments of any character (i) relating to any Equity Interests of the Company or any Company Subsidiary or (ii) obligating the Company or any Company Subsidiary to issue, acquire or sell any Equity Interests of the Company or any Company Subsidiary.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of with respect to the Disclosure LetterCompany Restricted Stock, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value outstanding obligations of the Company or any part thereofCompany Subsidiary (i) restricting the transfer of, (ii) affecting the voting rights of, (iii) requiring the repurchase, redemption or disposition of, or containing any right of first refusal with respect to, (iv) requiring the registration for sale of or (v) granting any preemptive or antidilutive rights with respect to, any shares of Company Common Stock or other Equity Interests (other than the Company Convertible Debt) in the Company or any Company Subsidiary.
(e) Neither the Company nor any Company Subsidiary has outstanding bonds, debentures, notes or other similar obligations, the holders of which have the right to vote (or, other than the Company Convertible Debt, which are convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter.
(f) The Company or another Company Subsidiary owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other Equity Interests of each of the Company Subsidiaries, free and clear of any Liens, and all of such shares of capital stock or other Equity Interests have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights. Except for Equity Interests in the Company Subsidiaries, neither the Company nor any Company Subsidiary owns directly or indirectly any Equity Interest in any Person, or has any obligation or has made any commitment to acquire any such Equity Interest, or to make any investment (in the form of a loan, capital contribution or otherwise) in, any Company Subsidiary or any other Person. Since the close of business on December 31, 2013, no Company Subsidiary has issued any shares of capital stock or other Equity Interests.
Appears in 2 contracts
Sources: Merger Agreement (Salix Pharmaceuticals LTD), Merger Agreement (Valeant Pharmaceuticals International, Inc.)
Capitalization. (a) The whole authorized equity of the allotted Company consists of unlimited Company Common Shares and issued 2,300,000 Company Capital Stock as Preferred Shares. The only beneficiaries of the Relevant Time FUMI Share Trust are the holders of Company Common Shares. The authorized equity of FUMI consists of 100 FUMI Shares, all of which are issued and outstanding and owned by the FUMI Share Trust. As of the date hereof, (i)64,244 shares i) 34,805,912 Company Common Shares and 984,800 Company Preferred Shares were issued and outstanding, all of which Company Common Shares and Company Preferred Shares were validly issued and are fully paid, nonassessable and free of preemptive rights, (ii) -0- Company Common Shares were held in the -32- treasury of the Company, (iii) -0- Company Preferred Shares were held in the treasury of the Company, (iv) 1,000,000 Company Common Shares were reserved for issuance upon exercise of the option or right to purchase Company Common Shares granted under the Company Option Plans or otherwise granted by the Company (each, a "COMPANY OPTION") and Company Warrants issued and outstanding and (v) 11,316,000 Company Common Shares were reserved for issuance upon conversion of the outstanding Company Preferred Shares, all of which were validly issued and are fully paid, nonassessable and free of preemptive rights. Between September 30, 2001 and the date hereof, (i) no Company Common Shares or Company Preferred Shares have been issued, except in connection with the conversion of Company Ordinary Preferred Shares or the exercise of Company Options or Warrants issued and outstanding and (ii) 17,898 no options, warrants, securities convertible into, or commitments with respect to the issuance of, shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect beneficial interests of the Company (nor is there any agreement or arrangement for the creationFUMI Share Trust have been issued, constitution, grant granted or issuance of any Relevant Securities in respect made. As of the Effective Time, there shall be no Company (other than the Sale Shares Options issued and the A Pref Shares))outstanding.
(b) Section 5.3(bExcept for (i) Company Preferred Shares, (ii) Company Options issued and outstanding and (iii) Warrants to purchase a maximum of the Disclosure Letter sets forth 500,000 Company Common Shares, as of the Relevant Time a complete date hereof, there were no outstanding subscriptions, options, calls, contracts, commitments, understandings, restrictions, arrangements, rights or warrants, including any right of conversion or exchange under any outstanding security, instrument or other agreement and accurate list also including any rights plan or other anti-takeover agreement, obligating the Company, the FUMI Share Trust, FUMI or any of the holders of their subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Common Shares, the number of shares of Company Ordinary Preferred Shares, FUMI Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and obligating the Company’s articles of association. To the Company’s knowledge, the shares FUMI Share Trust, FUMI or any of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Lawstheir respective subsidiaries to grant, extend or enter into any such agreement or commitment.
(c) Except as provided in Section 5.3(c6.02(c) of the Company Disclosure Letter sets Schedule, there are no and shall be no obligations, contingent or otherwise, of the Company, the FUMI Share Trust, FUMI or their respective subsidiaries to (i) redeem or otherwise acquire (A) any Company Common Shares, (B) any Company Preferred Shares, (C) any FUMI Shares or (D) the beneficial interests or other equity interests of any subsidiary of the Company, except in connection with the exercise of (X) conversion rights on account of the Company Preferred Shares, (Y) Company Options issued and outstanding or (Z) Warrants issued and outstanding, (ii) pay or distribute any dividend or distribution on the Company Preferred Shares or (iii) provide material funds to, or make any material investment in (in the form of a loan, capital contribution or otherwise), or provide any guarantee with respect to the obligations of, any person. There are no outstanding stock appreciation rights or similar derivative securities or rights of the Company, the FUMI Share Trust, FUMI or any their respective subsidiaries. Furthermore, since the issuance of the Company Preferred Shares, the Company has paid dividends on the Company Preferred Shares in an amount at least equal to $0.525 per Company Preferred Share for each Dividend Period (as defined in the Preferred Certificate).
(d) There are no bonds, debentures, notes or other indebtedness of the Company, the FUMI Share Trust, FUMI or their respective subsidiaries having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of beneficial interests of the Company may vote. Other than the Voting Agreement attached as EXHIBIT A, there are no voting trusts, irrevocable proxies or other agreements or understandings to which the Company, the FUMI Share Trust or any of their respective subsidiaries is a party or is bound with respect to the voting of any Company Common Shares.
(e) The Company has filed with the SEC or previously made available to Gotham complete and correct copies of the Stock Incentive Plan and the 1999 Share Option Plan for Trustees including all amendments thereto (the "COMPANY OPTION PLANS"). The Company has previously made available to Gotham a complete and correct list setting forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granteddate hereof, the number of shares Company Options outstanding and the weighted average exercise price for all such outstanding Company Options.
(f) The "CONVERSION PRICE" (as such term is defined in the certificate of designations of the Company Ordinary Shares subject Preferred Shares, as amended or as may be amended after the date hereof) is equal to such Company Share Option$5.0824. Since March 21, 2000, the exercise priceCompany has not taken any action, nor has there occurred any event or circumstance, that has changed or caused an adjustment to, or (other than in connection with the execution of this Agreement) could reasonably be expected to change or cause an adjustment to, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto)Conversion Price. Section 5.3(c6.02(f) of the Company Disclosure Letter Schedule sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunderdate hereof, the number effects of shares any Adjustment Events (as defined in the Warrant Agreement) pertaining to the Warrants that shall be required on account of Company Ordinary Shares subject to outstanding options thereunder the consummation of this Agreement and the number of shares of Company Ordinary Shares reserved for future issuance thereundertransactions contemplated hereby. Except as set forth on In addition, Section 5.3(c6.02(f) of the Company Disclosure LetterSchedule sets forth, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions as of the applicable Company Share Plan and (ii) has an date hereof, the current exercise price per share of the Warrants. Except for a violation of subsection (i)(B) of Section 6.02(c), which shall be governed solely by Section 6.02(c), the execution, delivery and performance of this Agreement by the Company Ordinary and the FUMI Share equal to Trust and the consummation of the transactions contemplated hereby shall not in any way violate or greater than otherwise breach the fair market value terms of a share the Certificate of Designations for the Company Ordinary Share on the date of such grantPreferred Shares.
(dg) Except as set forth in The execution, delivery and performance of this Section 5.3 or in Section 5.3(d) Agreement by the Company, the FUMI Share Trust and FUMI and the consummation of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or transactions contemplated hereby shall not result in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any a liquidation of the Company Capital Stock or otherwise agreed Company.
(h) The FUMI Share Trust shall terminate and cease to reduce any class of its issued share capital or carried out any transaction having exist immediately after the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofEffective Time.
Appears in 2 contracts
Sources: Merger Agreement (First Union Real Estate Equity & Mortgage Investments), Agreement and Plan of Merger and Contribution (Gotham Partners Lp /Ny/)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time date of this Agreement consists of (i)64,244 shares of Company Ordinary 40,000,000 Class A Common Shares and 4,000,000 Class B Common Shares. The rights and privileges of each class of the Company’s capital stock are as set forth in the Company’s Articles of Incorporation. As of the close of business on the business day prior to the date of this Agreement, (i) 11,388,835 Class A Common Shares were issued and outstanding, (ii) 17,898 shares 1,804,800 Class B Common Shares were issued and outstanding and (iii) 8,239,923 Company Common Shares were held in the treasury of Seed Preferred Shares. The Sale Shares and the shares held Company or by the Previous Sellers constitute the entire issued and to be issued share capital Subsidiary of the Company, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares)).
(b) Section 5.3(b3.2(b) of the Company Disclosure Letter Schedule sets forth as of the Relevant Time a complete and accurate list list, as of the holders date of this Agreement, of:
(i) all stock option plans or other equity-related plans of the Company Capital Stock(the “Company Stock Plans”), showing the number of shares indicating for each Company Stock Plan, as of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Sharesdate, the number of shares Company Common Shares issued under such Plan, the number of Company Ordinary Common Shares (if any) into which subject to outstanding options and other awards under such shares are convertiblePlan, and the number of Company Common Shares reserved for future issuance under such Plan. The Company holds no shares of Company Capital Stock in its treasury. All of has made available to the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a Parent complete and accurate list copies of all holders of Company Stock Plans;
(ii) all outstanding Company Share Stock Options, indicating, indicating with respect to each such Company Share OptionStock Option the name of the holder thereof, the Company Share Stock Plan under which it was granted, the number of shares of Company Ordinary Common Shares subject to such Company Share Stock Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto)schedule. Section 5.3(c) of The Company has made available to the Disclosure Letter sets forth, as of the Relevant Time , a Parent complete and accurate list copies of all forms of stock option agreements evidencing Company Share PlansStock Options; and
(iii) all outstanding Company Restricted Stock Awards, indicating for with respect to each such Company Share Restricted Stock Award the name of the holder thereof, the Company Stock Plan the number of shares of Company Ordinary Shares issued thereunderunder which it was granted, the number of shares and class of Company Ordinary Common Shares subject to outstanding options thereunder such Company Restricted Stock Award, the date of grant, and the number vesting schedule. The Company has made available to the Parent complete and accurate copies of shares all forms of restricted stock agreements evidencing Company Ordinary Shares reserved for future issuance thereunderRestricted Stock Awards. Except as set forth on Section 5.3(c) To the knowledge of the Disclosure LetterCompany, there is no allotted or issued Section 83(b) elections have been made with respect to any outstanding Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Restricted Stock other than Company Ordinary Shares. Each Company Share Option Award.
(c) Except (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d3.2 and (ii) of the Disclosure Letteras reserved for future grants under Company Stock Plans, (iA) there are no allotted equity securities of any class of the Company, or issued any security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding and (B) there are no options, warrants, rights (including conversion equity securities, calls, rights, commitments or preemptive rights and rights agreements of first refusal or similar rights) or agreements, orally or in writing, any character to purchase or acquire from which the Company any or its Subsidiary is a party or by which the Company or its Subsidiary is bound obligating the Company or its Subsidiary to issue, exchange, transfer, deliver or sell, or cause to be issued, exchanged, transferred, delivered or sold, additional shares of capital stock or other equity interests of the Company Capital Stock, or any securities security or rights convertible into or exchangeable or exercisable for any such shares or other equity interests, or obligating the Company or its Subsidiary to grant, extend, accelerate the vesting of, otherwise modify or amend or enter into any such option, warrant, equity security, call, right, commitment or agreement. The Company does not have any outstanding stock appreciation rights, phantom stock, performance based rights or similar rights or obligations. Other than the Company Shareholder Agreement, neither the Company nor its Subsidiary, or, to the knowledge of the Company, any of the Company’s Affiliates, directors or officers, is a party to or is bound by any agreements with respect to the voting (including voting trusts and proxies) or sale or transfer (including agreements imposing transfer restrictions) of any shares of Company Capital Stockcapital stock or other equity interests of the Company. For purposes of this Agreement, the term “Affiliate” when used with respect to any party shall mean any person who is an “affiliate” of that party within the meaning of Rule 405 promulgated under the Securities Act of 1933, as amended (ii) the “Securities Act”). There are no registration rights, and there is no rights agreement or “poison pill” anti-takeover plan to which the Company has or its Subsidiary is a party or by which it or they are bound, with respect to any equity security of any class of the Company.
(d) The holders of Class A Common Shares are not entitled to dissenters’ or appraisal rights under applicable state Law in connection with the Merger. The holders of all of the issued and outstanding Class B Common Shares have executed Company Shareholder Agreements.
(e) All outstanding Company Common Shares are, and all Company Common Shares subject to issuance as specified in Section 3.2(b) above, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be, duly authorized, validly issued, fully paid and nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the RIBCA, the Company’s Articles of Incorporation or By-laws or any agreement to which the Company is a party or is otherwise bound.
(f) There are no obligation (obligations, contingent or otherwise) , of the Company or its Subsidiary to purchaserepurchase, redeem or otherwise acquire any shares Company Common Shares or the capital stock of Capital Stockthe Company or its Subsidiary or to provide funds to or make any investment (in the form of a loan, capital contribution or other equity otherwise) in the Company or voting interest in, the Subsidiary of the Company or any other Person or to pay any dividend or to make any entity, other distribution in respect than guarantees of its Capital Stock, (iii) bank obligations of the Company has not at any time purchased, redeemed or repaid any Subsidiary of the Company Capital Stock or otherwise agreed to reduce any class entered into in the ordinary course of its issued share capital or carried out any transaction having business consistent with past practice (the effect “Ordinary Course of a reduction of capital, and Business”).
(ivg) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price No consent of the holders of Company Capital Stock Options or Company Restricted Stock Awards is required in connection with the value of the Company or any part thereofactions contemplated by Sections 2.1(b) and 6.11.
Appears in 2 contracts
Sources: Merger Agreement (Essilor International /Fi), Merger Agreement (Costa Inc)
Capitalization. (a) The whole authorized capital stock of the allotted Company consists of 100,000,000 Shares and issued 5,000,000 shares of preferred stock. As of January 20, 2008 there were outstanding 34,844,346 Shares (of which an aggregate of 16,150 are Company Capital Restricted Shares), no shares of preferred stock, Company Stock as Options to purchase an aggregate of 4,895,184 Shares (of which options to purchase an aggregate of 3,922,382 Shares were exercisable) and Company Performance Units with respect to 43,104 Shares. All outstanding shares of capital stock of the Relevant Time consists Company have been, and all shares that may be issued upon exercise of Company Stock Options or delivered in settlement of Company Performance Units will be, when issued in accordance with the respective terms thereof, duly authorized and validly issued and fully paid and nonassessable and free of preemptive rights. Section 4.05 of the Company Disclosure Schedule contains a list of (i)64,244 shares i) each outstanding Company Stock Option, including the holder, date of Company Ordinary grant, exercise price, number of Shares subject thereto and the number of such Shares that have vested and (ii) 17,898 shares of Seed Preferred Shares. The Sale all outstanding Company Restricted Shares and Company Performance Units, including with respect to each such share or unit, the shares held by the Previous Sellers constitute the entire issued holder, date of grant and to be issued share capital of the Company, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and validly issuednumber vested, and are fully paid up such list is complete and no sum is outstanding accurate in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))all material respects.
(b) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and Except for the Company’s articles of association. To obligations under the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof Rights Agreement and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share OptionsRights issued pursuant thereto, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except except as set forth in this Section 5.3 or 4.05 and for changes since January 20, 2008 resulting from the exercise of Company Stock Options outstanding on such date and the purchase of Shares pursuant to the Company ESPP in Section 5.3(d) of accordance with its terms as in effect on the Disclosure Letterdate hereof, there are no outstanding (i) there are no allotted shares of capital stock of or issued options, warrants, other voting securities or ownership interests in the Company or (ii) options or other rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company, or other obligation of the Company to issue, any shares of Company Capital Stockcapital stock or other voting securities or ownership interests in, or any securities convertible into or exchangeable or exercisable for shares of capital stock or other voting securities or ownership interests in, the Company Capital Stock, (the items in clauses (i) and (ii) being referred to collectively as the “Company Securities”). There are no outstanding obligations of the Company has no obligation (contingent or otherwise) any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and Securities.
(ivc) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked Except as set forth in any way to the price Section 4.05 of the Company Capital Stock Disclosure Schedule, none of (i) the Shares or the value (ii) Company Securities are owned by any Subsidiary of the Company or any part thereofCompany.
Appears in 2 contracts
Sources: Merger Agreement (Ventana Medical Systems Inc), Merger Agreement (Roche Holding LTD)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock consists of (i) 150,000,000 Company Class A Shares, of which, as of the Relevant Time consists close of business on November 1, 2019 (i)64,244 the “Capitalization Date”), there were 33,983,093 Company Class A Shares outstanding (including 954,067 Company Class A Shares underlying Company Restricted Stock Awards and excluding 0 Company Shares held in treasury), (ii) 30,000,00 Company Class B Shares, of which, as of the Capitalization Date, there were 4,817,394 Company Class B Shares issued and outstanding and (iii) 10,000,000 shares of preferred stock, par value $0.01 per share, of the Company (the “Company Preferred Stock”), of which, as of the Capitalization Date, no shares of Company Ordinary Shares and (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire Stock were issued and outstanding. No Company Subsidiary owns any Company Shares or has any option or warrant to be issued share capital purchase any Company Shares or any other Equity Interest in the Company. All of the Company, are the whole of the allotted and issued shares of outstanding Company Capital Stock and Shares have been duly authorized and validly issued, issued and are fully paid up paid, nonassessable and no sum is outstanding in respect free of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))preemptive rights.
(b) Section 5.3(b) As of the Disclosure Letter sets forth as close of business on the Relevant Time a complete and accurate list of Capitalization Date, the holders Company has no Company Shares or shares of Company Capital StockPreferred Stock subject to or reserved for issuance, showing except for (i) 545,590 Company Class A Shares subject to outstanding Company Stock Options under the number of shares of such Capital StockCompany Equity Plans, and the class or series of such shares, held by each such shareholder and, (ii) 463,728 Company Class A Shares subject to outstanding Company PSU Awards (assuming vesting at target performance levels with respect to shares other than each Company Ordinary SharesPSU Award that is subject to performance-based vesting), (iii) 316,283 Company Class A Shares reserved for future issuance under the number Company Equity Plans for awards not yet granted and (iv) 1,907,550 Company Class B Shares issuable upon the exercise of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasurythe Class B Warrant. All of Company Shares subject to issuance under the allotted Company Equity Plans and issued shares of Company Capital Stock have been offeredthe Class B Warrant, upon issuance prior to the Effective Time on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued issued, fully paid, nonassessable and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) free of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Lawspreemptive rights.
(c) Section 5.3(cAs of the close of business on the Capitalization Date, other than the Company Equity Awards, the Class B Warrant and the preemptive rights set forth in the Company Charter, there are no outstanding Equity Interests or other options, warrants or other rights, relating to or based on the value of any Equity Interests of the Company or any Company Subsidiary or obligating the Company or any Company Subsidiary to issue, acquire or sell any Equity Interests of the Company or any Company Subsidiary. Since the close of business on the Capitalization Date, the Company has not issued any Company Shares, Company Equity Awards or other Equity Interests (including shares of Company Preferred Stock) other than Company Shares issued upon the exercise or settlement of Company Equity Awards outstanding as of the close of business on the Capitalization Date in accordance with their terms.
(d) Other than the Company Equity Awards, the Class B Warrant and the preemptive rights set forth in the Company Charter, there are no obligations (whether outstanding or authorized) of the Disclosure Letter sets forth as Company or any Company Subsidiary requiring the redemption or repurchase of, or containing any right of first refusal with respect to, or granting any preemptive rights with respect to, any Company Shares or other Equity Interests of the Relevant Time Company or any Company Subsidiary. There are no voting trusts or other agreements or understandings to which the Company or any Company Subsidiary is a complete and accurate list of all holders of outstanding Company Share Options, indicating, party with respect to each the voting of Company Share Option, Shares or other Equity Interests of the Company Share Plan under or any Company Subsidiary, other than any such agreements solely between and among the Company and any Company Subsidiary or solely between and among two or more Company Subsidiaries. There are no outstanding bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which it was granted, the number of shares holders of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule may vote.
(including any acceleration provisions with respect thereto). e) Section 5.3(c3.2(e) of the Company Disclosure Letter sets forth, as of the Relevant Time close of business on the Capitalization Date, a complete all Indebtedness of the Company and accurate list the Company Subsidiaries, excluding any Indebtedness with an outstanding principal amount as of the date hereof of less than two million dollars ($2,000,000) individually (provided, that all Company Share Plans, indicating for each Company Share Plan such excluded Indebtedness has an aggregate outstanding principal amount as of the number date hereof of shares less than ten million dollars ($10,000,000)). From the close of Company Ordinary Shares issued thereunderbusiness on the Capitalization Date to the date hereof, the number of shares of Company Ordinary Shares subject has not incurred any Indebtedness that would be required to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as be set forth on Section 5.3(c3.2(e) of the Company Disclosure LetterLetter if such Indebtedness was incurred prior to the close of business on the Capitalization Date. “Indebtedness” means, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for with respect any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option Person: (i) was (A) the amount of indebtedness of such Person for borrowed money and (B) indebtedness of such Person evidenced by any note, bond, debenture or other debt security, in the case of clauses (A) and (B), whether incurred, assigned, granted in compliance with all applicable Laws and all terms and conditions or unsecured (which, for the avoidance of the applicable Company Share Plan and doubt, shall not include accounts payable, accrued liabilities or “earn-outs”); (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date obligations of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights Person with respect to interest rate and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or currency swap arrangements and any other Person arrangements designed to protect against fluctuations in interest or to pay any dividend or to make any other distribution in respect of its Capital Stock, currency rates payable upon termination thereof; and (iii) the Company has not at reimbursement obligations of such Person with respect to any time purchasedperformance bonds, redeemed or repaid any bank overdrafts, letters of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, credit and similar charges (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price extent drawn) (which, for the avoidance of the Company Capital Stock or the value of the Company or any part thereofdoubt, shall not include customer deposits, “earn-outs,” escrow and other similar contingent payment obligations).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (William Lyon Homes), Merger Agreement (Taylor Morrison Home Corp)
Capitalization. (a) The whole As of the allotted and issued Company Capital Stock as close of business on February 29, 2024 (the “Capitalization Date”), the authorized capital stock of the Relevant Time consists Company consisted of (i)64,244 i) 60,000,000 shares of Company Ordinary Shares Common Stock, of which 22,632,843 shares were issued and outstanding and no shares were held in the treasury of the Company and (ii) 17,898 10,000,000 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company’s undesignated preferred stock, par value $0.0001 per share (“Company Preferred Stock”), of which no shares were issued and outstanding. There are the whole no other classes of capital stock of the allotted Company authorized or issued and outstanding. All issued and outstanding shares of the capital stock of the Company Capital Stock and have been are duly authorized and authorized, validly issued, and are fully paid up and non-assessable, and no sum class of capital stock is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))entitled to preemptive rights.
(b) As of the Capitalization Date, the Company has reserved 4,150,470 shares of Company Common Stock for issuance pursuant to the Company Equity Plan. As of the Capitalization Date, there were outstanding (i) Company Options to acquire 1,394,808 shares of Company Common Stock and (ii) Company Warrants to acquire 9,911,397 shares of Company Common Stock. Section 5.3(b3.5(b) of the Company Disclosure Letter sets forth a true and complete list as of the Relevant Time a complete and accurate list Capitalization Date of the holders of outstanding Company Capital StockOptions and Company Warrants, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder andincluding, with respect to shares other than each Company Ordinary SharesOption and Company Warrant, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Common Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offeredissuable thereunder or with respect thereto, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the exercise price (if any), and the Company has granted no other such awards since the Capitalization Date and under applicable securities Lawsprior to the date of this Agreement.
(c) From the close of business on the Capitalization Date through the date of this Agreement, there have been no issuances of shares of Company Common Stock, Company Preferred Stock or any other Equity Interests of the Company other than issuances of shares of Company Common Stock pursuant to the exercise of Company Options, in each case, outstanding as of the Capitalization Date under the Company Equity Plan. Except as set forth in this Section 5.3(c3.5, as of the close of business on the Capitalization Date the Company has not granted any other Equity Interests or any other rights to a third party to acquire capital stock from the Company. Section 3.5(c) of the Company Disclosure Letter sets forth a true and complete list, as of the Relevant Time a complete and accurate list Capitalization Date, of all holders of each outstanding Company Share Options, indicatingOption and, with respect to each such Company Share Option, the Company Share Plan under which it was granted, (i) the number of shares of Company Ordinary Shares Common Stock subject to such Company Share Option, (ii) the exercise pricevesting schedule thereof, including any accelerated vesting provisions, (iii) the status of the Company Option as an incentive stock option within the meaning of Section 422 of the Code, (iv) the name of the holder, (v) the date of grant, and (vi) the vesting schedule expiration date and, (including any acceleration provisions with respect thereto)vii) the exercise price thereof. Not later than five (5) Business Days prior to the Effective Time, the Company shall update Section 5.3(c3.5(c) of the Company Disclosure Letter sets forth, as of the Relevant Time date of such update and provide such updated schedule to Parent. The Company has made available true and complete copies of the Company Equity Plan, a complete and accurate list all forms of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options award agreements thereunder and any agreement for any award under the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of Equity Plan that does not conform in all material respects to the Disclosure Letter, there is no allotted or issued form agreements under the Company Share Option that has not been granted under a Company Share Equity Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was has been granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an a per share exercise price per share of Company Ordinary Share equal to or greater that is less than the fair market value of a share of Company Ordinary Share Common Stock on the date such Company Option was granted. Each Company Option was granted in accordance with the terms of such grantthe applicable Company Equity Plan and applicable Laws. The Company has the requisite power and authority, in accordance with the Company Equity Plan, the applicable award agreements and any other applicable Contract, to take the actions contemplated by Section 2.4.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) As of the Disclosure Letterclose of business on the Capitalization Date, no bonds, debentures, notes or other Indebtedness of the Company having the right to vote (or convertible into or exercisable for securities having the right to vote) on any matters on which holders of capital stock of the Company may vote are issued or outstanding.
(e) As of the date of this Agreement, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights outstanding obligations of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any of its subsidiaries except for purchases, redemptions or other acquisitions of capital stock or other securities (A) required by the terms of the Company Equity Plan, (B) in order to pay Taxes or satisfy withholding obligations in respect of such Taxes in connection with awards under the Company Equity Plan or otherwise, or (C) as required by the terms of, or necessary for the administration of, any plans, arrangements or agreements existing on the date of this Agreement and set forth on Section 3.5(e) of the Company Disclosure Letter between the Company or any of its subsidiaries and any director or employee of the Company or any of its subsidiaries, (ii) there are no outstanding stock-appreciation rights, security-based performance units, restricted stock units, “phantom” stock or other security rights or other agreements, arrangements or commitments of any character (contingent or otherwise) to which the Company is a party, in each case pursuant to which any Person is entitled to receive any payment from the Company based in whole or in part thereofon the value of any capital stock of the Company (other than under the Company Equity Plan), and (iii) there are no outstanding obligations of the Company to accelerate the vesting of any Equity Interests of the Company under any provision of the Company Equity Plan or any Contract or other agreement evidencing any outstanding Company Option.
(f) Except for the Company Voting Agreements, as of the date of this Agreement, there are no outstanding obligations of the Company (i) restricting the transfer of, (ii) affecting the voting rights of, (iii) requiring the sales, issuance, repurchase, redemption or disposition of, or containing any right of first refusal with respect to, (iv) requiring the registration for sale of or (v) granting any preemptive or anti-dilutive rights with respect to any shares of Company Common Stock, Company Preferred Stock or other Equity Interests in the Company.
Appears in 2 contracts
Sources: Merger Agreement (Akari Therapeutics PLC), Merger Agreement (Peak Bio, Inc.)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 400,000,000 shares of Company Ordinary Shares Common Stock and (ii) 17,898 100,000,000 shares of Seed Preferred Sharespreferred stock. The Sale Shares As of July 20, 2012 (the “Measurement Date”), 50,394,437 shares of Company Common Stock are issued and outstanding, no shares of preferred stock are issued and outstanding and no shares of Company Common Stock or preferred stock are held in the shares Company’s treasury or held by the Previous Sellers constitute the entire issued and to be issued share capital a Subsidiary of the Company. All outstanding Shares are, are the whole of the allotted and issued any additional shares of Company Capital Common Stock issued by the Company after the date hereof and have been prior to the Effective Time will be, duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares)).
(b) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stocknonassessable, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares not subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto)preemptive rights. Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or 3.3(a) and for changes after the date hereof resulting from the vesting of awards described in Section 5.3(d3.3(b) and granted pursuant to Company Equity Plans outstanding on the date hereof, there are no outstanding shares of capital stock of or other voting securities or ownership interests in the Company. From the Measurement Date until the date of this Agreement, no shares of Company Common Stock or preferred stock have been issued, other than those shares issuable upon exercise of outstanding awards granted pursuant to the Company Equity Plans.
(b) As of the Disclosure Letter, date hereof (i) there 472,503 Restricted Shares are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, outstanding pursuant to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital StockEquity Plans, (ii) 423,708 Restricted Share Units are outstanding pursuant to the Company has Equity Plans, each such Restricted Share Unit entitling the holder thereof to receive one share of Company Common Stock, and (iii) 2,842,688 shares of Company Common Stock are authorized and reserved for future issuance pursuant to the Company Equity Plans. Section 3.3(b) of the Company Disclosure Letter contains a complete and correct list (which shall be updated not later than five days prior to the Effective Time) of each outstanding award granted pursuant to the Company Equity Plans, including, as applicable, the holder, date of grant, vesting schedule and number of shares of Company Common Stock subject thereto. Except as set forth above in this Section 3.3(b), there are no obligation Company Stock Rights.
(contingent c) There are no outstanding obligations of the Company or otherwise) any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stock, Shares or other equity or voting interest in, the Company or any other Person Stock Rights or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) thereof. There are no voting trusts or other agreements or understandings to which the Company has not at any time purchased, redeemed or repaid any is a party with respect to the voting of stock of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofCompany.
Appears in 2 contracts
Sources: Merger Agreement (Railamerica Inc /De), Merger Agreement (Genesee & Wyoming Inc)
Capitalization. (a) The whole authorized capital stock of the allotted Company consists of 350,000,000 Company Shares and 10,000,000 shares of preferred stock, par value $0.0001 per share (“Company Preferred Stock”). As of November 2, 2015 (the “Company Capitalization Date”), (i)(A) 96,237,408 Company Shares were issued and outstanding (including 319,633 Company Capital Stock as Shares underlying Company RSAs), (B) no Company Shares were held in treasury, (C) no Company Shares were held by the Company Subsidiaries, (D) Company Options covering 7,527,902 Company Shares were outstanding, with a weighted average exercise price per share of $24.24, and (E) Company RSUs covering 3,529,042 Company Shares were outstanding, (ii) 27,701,448 Company Shares were reserved for issuance pursuant to the Company Equity Plans, (iii) such number of Company Shares that may from time to time be issuable upon conversion of the Relevant Time consists Convertible Senior Notes were reserved for issuance by resolution of the Company Board of Directors, (i)64,244 iv) the maximum number of Company Shares issuable pursuant to the Warrants was 7,716,046 Company Shares, and (v) no shares of Company Ordinary Preferred Stock were issued or outstanding. All the outstanding Company Shares are, and (ii) 17,898 shares of Seed Preferred Shares. The Sale all Company Shares and reserved for issuance as noted above shall be, when issued in accordance with the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Companyrespective terms thereof, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and authorized, validly issued, and are fully paid up and no sum is outstanding in respect non-assessable and free of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))pre-emptive rights.
(b) Section 5.3(b4.2(b) of the Company Disclosure Letter sets forth a true and complete list, as of the Relevant Time a complete and accurate list Company Capitalization Date, of (i) each Company Equity Award, (ii) the name of the holders of Company Capital StockEquity Award holder, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, (iii) the number of shares of Company Ordinary Shares Common Stock underlying each Company Equity Award, (if anyiv) into the date on which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance withEquity Award was granted, (v) the Company Equity Plan under which the Company Equity Award was granted, (vi) the vesting schedule with respect to the Company Equity Award, including any right of acceleration of such vesting schedule, (vii) the exercise price of each Company Equity Award, if applicable, and no transfer (or purported transferviii) the expiration date of any shares of each Company Capital Stock has been made at any time in breach ofEquity Award, all if applicable securities Laws and the Company’s articles of association. To the Company’s knowledge(such schedule, the shares of “Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities LawsEquity Schedule”).
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 4.2(a) and Section 4.2(b) above, as of the date hereof: (i) the Company does not have any shares of capital stock or other equity interests issued or outstanding other than the Company Shares that have become outstanding after the Company Capitalization Date, but were reserved for issuance as set forth in Section 5.3(d4.2(a)(ii) of the Disclosure Letterabove, and (iii) there are no allotted or issued outstanding subscriptions, options, warrants, rights (including conversion puts, calls, exchangeable or preemptive rights and rights of first refusal convertible securities or other similar rights) , agreements or agreements, orally or in writing, commitments relating to purchase or acquire from the issuance of capital stock to which the Company or any of the Company Subsidiaries is a party obligating the Company or any of the Company Subsidiaries to (A) issue, transfer or sell any shares in the capital or other equity interests of the Company Capital Stock, or any Company Subsidiary or securities convertible into or exchangeable for such shares of Company Capital Stock, or equity interests (ii) in each case other than to the Company has no obligation or a wholly owned Subsidiary of the Company); (contingent B) grant, extend or otherwiseenter into any such subscription, option, warrant, put, call, exchangeable or convertible securities or other similar right, agreement or commitment; (C) to purchase, redeem or otherwise acquire any such shares of Capital Stock, in its capital or other equity interests; or voting interest (D) provide a material amount of funds to, or make any material investment (in the form of a loan, capital contribution or otherwise) in, the any Company or any other Person or to pay any dividend or to make any other distribution Subsidiary that is not wholly owned. Except as set forth in respect of its Capital StockSection 4.2(a) and Section 4.2(b) above, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value outstanding obligations of the Company or any part thereofCompany Subsidiary (i) restricting the transfer of, (ii) affecting the voting rights of, (iii) requiring the repurchase, redemption or disposition of, or containing any right of first refusal or similar right with respect to, (iv) requiring the registration for sale of or (v) granting any preemptive or anti-dilutive rights with respect to, any shares of capital stock or other equity interests of the Company or any Company Subsidiary.
(d) Neither the Company nor any Company Subsidiary has outstanding bonds, debentures, notes or other similar obligations, the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the Company Stockholders on any matter.
(e) There are no voting trusts or other agreements or understandings to which the Company or any Company Subsidiary is a party with respect to the voting of the capital stock or other equity interest of the Company or any Company Subsidiary.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Homeaway Inc), Agreement and Plan of Reorganization (Expedia, Inc.)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of of: (i)64,244 i) 150,000,000 shares of common stock, par value $0.025 per share (each, a “Company Ordinary Shares Share” and, collectively, the “Company Shares”) and (ii) 17,898 10,000,000 shares of Seed Preferred SharesStock, par value $0.025 per share (“Company Preferred Stock”). The Sale At the close of business on August 20, 2009, (i) 68,974,080 Company Shares were issued and the shares outstanding (and no Company Shares were issued and held by the Previous Sellers constitute Company in its treasury), (ii) 7,451,124 Company Shares were reserved for issuance under the entire issued Company Equity Plans (of which 3,878,932 Company Shares were subject to outstanding Company Options granted under the Company Equity Plans), (iii) no Company Shares were subject to outstanding Company Options granted other than under the Company Equity Plans, (iv) 12,758,343 Company Shares were subject to outstanding Company Warrants and to be issued share capital of the Company, are the whole of the allotted and issued (v) no shares of Company Capital Preferred Stock were issued or outstanding. All Company Shares, and Company Shares reserved for issuance upon exercise of the Company Options or the Company Warrants, have been duly authorized and are, or upon issuance in accordance with the terms of the Company Options will be, validly issued, fully paid, non-assessable and are fully paid up and no sum is outstanding in respect free of any Sale Share or share held by any Previous Sellerpreemptive rights. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect Section 3.02(a) of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares)).
(b) Section 5.3(b) of the Disclosure Letter sets forth a correct and complete list, as of August 20, 2009, of: (i) the Relevant Time a complete and accurate list of the holders of outstanding Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary SharesOptions, the number of shares of Company Ordinary Shares (if any) into which underlying such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws Options and the Company’s articles of association. To the Company’s knowledgeholders, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free exercise prices and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder expiration dates thereof and (ii) the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was grantedWarrants, the number of shares of Company Ordinary Shares subject to underlying such Company Share OptionWarrants and the holders, exercise prices and expiration dates thereof. Since January 1, 2009, the exercise priceCompany has not issued, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares or reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letterissuance, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, its capital stock or any securities convertible into or exchangeable or exercisable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stockits capital stock, or other equity or voting interest in, than pursuant to the Company or any other Person or Options and Company Warrants referred to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any above that are outstanding as of the Company Capital Stock or otherwise agreed to reduce any class date of its issued share capital or carried out any transaction having the effect of a reduction of capital, and this Agreement.
(ivb) there There are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value outstanding contractual obligations of the Company or any part thereofCompany Subsidiary (i) restricting the transfer of, (ii) affecting the voting rights of, (iii) requiring the issuance, sale, repurchase, redemption or disposition of, or containing any right of first refusal with respect to, (iv) requiring the registration for sale of, or (v) granting any preemptive or anti-dilutive right with respect to, any Company Shares or any capital stock of the Company or any Company Subsidiary, except pursuant to the Company Options and the Company Warrants. There are no bonds, debentures, notes or other indebtedness or liabilities of the Company or any Company Subsidiary having the right to vote (or convertible into or exchangeable for securities having the right to vote) on any matters on which the stockholders of the Company or any Company Subsidiary may vote.
Appears in 2 contracts
Sources: Merger Agreement (Ligand Pharmaceuticals Inc), Merger Agreement (Neurogen Corp)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 i) 600,000,000 shares of Company Ordinary Shares Common Stock and (ii) 17,898 50,000,000 shares of Seed preferred stock, par value $0.01 per share (the “Company Preferred Shares. The Sale Shares Stock”).
(b) As of September 25, 2012 (the “Capitalization Date”), (i) 104,692,575 shares of Company Common Stock were issued and the outstanding (which number includes 610,164 shares of Company Common Stock held by the Previous Sellers constitute the entire issued Company in its treasury) and to be issued share capital of the Company, are the whole of the allotted and issued (ii) no shares of Company Capital Preferred Stock were issued and outstanding. Since the Capitalization Date to the date of this Agreement, there have been no issuances of capital stock of the Company except upon exercise of Company Stock Options described in Section 3.5(c). The outstanding shares of Company Common Stock have been duly authorized and validly issued, issued and are fully paid up and no sum is outstanding in respect nonassessable and free of any Sale Share or share held by any Previous Seller. Save for the Sale Shares preemptive rights and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares)).
(b) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and were issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all material respects with all applicable federal and state securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Lawslaws.
(c) As of the Capitalization Date, 6,464,456 shares of Company Common Stock were reserved for issuance under the Company Stock Plans in connection with the exercise of outstanding Company Stock Options. As of the Capitalization Date, there were outstanding Company Stock Options to purchase 6,464,456 shares of Company Common Stock. Section 5.3(c3.5(c) of the Company Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicatingforth, with respect to each tranche of Company Share OptionStock Options, the Company Share Stock Plan under which it such tranche of Company Stock Options was granted, the number of shares of Company Ordinary Shares subject Common Stock issuable under such tranche of Company Stock Options and the exercise price therefor. Since the Capitalization Date, the Company has not granted, committed to grant or otherwise created or assumed any obligation with respect to any Company Stock Options, other than as permitted by Section 5.1(b). All grants of Company Stock Options were validly issued and properly approved by the Company Board (or a committee thereof) in accordance with all applicable Law. With respect to the Company Stock Options, (i) each grant of a Company Stock Option was duly authorized no later than the date on which the grant of such Company Share OptionStock Option was by its terms to be effective (the “Grant Date”) by all necessary corporate action, including, as applicable, approval by the exercise priceCompany Board (or a duly constituted and authorized committee thereof), or a duly authorized delegate thereof, and any required shareholder approval by the date necessary number of grantvotes or written consents, and the vesting schedule award agreement governing such grant (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (iif any) was granted duly executed and delivered by each party thereto no later than the Grant Date, (ii) each such grant was made in compliance accordance with all applicable Laws and all the terms and conditions of the applicable Company Share Plan Stock Plan, the Exchange Act and all other applicable Law, including the rules of the New York Stock Exchange, and (iiiii) has an the per share exercise price per share of each Company Ordinary Share equal to or greater Stock Option was not less than the fair market value of a share of Company Ordinary Share Common Stock on the date applicable Grant Date. The Company has not granted, and there is no and has been no Company policy or practice to grant, Company Stock Options prior to, or otherwise coordinate the grant of such grantCompany Stock Options with, the release or other public announcement of material information regarding the Company or any of its Subsidiaries or their financial results or prospects. No outstanding Company Stock Option, RSU, or Equity Share Unit has been granted pursuant to an agreement which contains terms that conflict with the terms set forth on Section 3.5(c), (d), or (e) and the award agreements set forth on Section 3.15(a) of the Company Disclosure Letter.
(d) As of the Capitalization Date, an aggregate of 624,514.5454 Equity Share Units were outstanding. Section 3.5(d) of the Company Disclosure Letter sets forth, with respect to the Equity Share Units that are outstanding, the Company Stock Plan under which such Equity Share Units were granted, the number of units issuable under such Equity Share Units and the total number of outstanding Equity Share Units. Since the Capitalization Date, the Company has not granted, committed to grant or otherwise created or assumed any obligation with respect to any Equity Share Unit, other than as permitted by Section 5.1(b). All grants of Equity Share Units were validly issued and properly approved by the Company Board (or a committee thereof) in accordance with all applicable Law.
(e) As of the Capitalization Date, an aggregate of 5,988,009 RSUs were outstanding. Section 3.5(e) of the Company Disclosure Letter sets forth, with respect to each tranche of such RSUs, the Company Stock Plan under which such tranche of RSUs was granted, the number of units issuable under such tranche of RSUs and the total number of such unvested RSUs. Since the Capitalization Date, the Company has not granted, committed to grant or otherwise created or assumed any obligation with respect to any RSU, other than as permitted by Section 5.1(b). All grants of RSUs were validly issued and properly approved by the Company Board (or a committee thereof) in accordance with all applicable Law.
(f) As of the Capitalization Date, 221,158,563 shares of Company Common Stock were reserved and available for issuance upon conversion of the Company Convertible Notes.
(g) Except as set forth in this Section 5.3 3.5 or in Section 5.3(d3.5(g) of the Company Disclosure Letter, as of the date of this Agreement, except with respect to shares of Company Common Stock issued upon the exercise of Company Stock Options or issued upon the vesting and/or settlement of Equity Share Units and/or RSUs, in each case, subsequent to the Capitalization Date, there were no (i) there are no allotted outstanding shares of capital stock or issued optionsother voting securities of the Company, warrants, rights (including conversion or preemptive rights and rights ii) securities of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities its Subsidiaries convertible into or exchangeable for shares of capital stock or voting securities of the Company, (iii) options, warrants, calls, phantom stock or other rights to acquire from the Company Capital Stockor its Subsidiaries, or obligation of the Company or its Subsidiaries to issue, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company (the items in clauses (i), (ii) and (iii) are referred to collectively as “Company Securities”), or (iv) outstanding obligations of the Company has no obligation (contingent or otherwise) any Subsidiary of the Company to purchaserepurchase, redeem or otherwise acquire any shares Company Securities. Except (x) as set forth in Section 3.5(g) of Capital Stockthe Company Disclosure Letter or (y) in connection with the repurchase or acquisition of Company Common Stock pursuant to the terms of Company Stock Plans, or other equity or voting interest in, neither the Company nor any of its Subsidiaries is a party to any Contract that (i) obligates the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital StockSubsidiaries to repurchase, redeem or otherwise acquire any Company Securities, (ii) relates to the voting or transfer of, requires registration of, or grants any preemptive rights, anti-dilutive rights, rights of first refusal or other similar rights with respect to, any Company Securities or (iii) otherwise relates to, creates, establishes or defines the terms and conditions of, any Company Securities. There are no director, independent contractor, or employee stock incentive plans or arrangements of the Company, other than the Company has not at Stock Plans, under which any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there Securities are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofoutstanding.
Appears in 2 contracts
Sources: Merger Agreement (Sealy Corp), Merger Agreement (Tempur Pedic International Inc)
Capitalization. The authorized capital stock of the Company consists of 40,000,000 shares of Common Stock and 8,097,660 shares of Preferred Stock ("Preferred Stock"), par value $0.001 per share. As of December 11, 1998 (a) The whole 7,123,577 shares of Common Stock were issued and outstanding and no shares of Preferred Stock were outstanding, (b) Options to purchase an aggregate of 1,792,550 shares of Common Stock were outstanding, 1,792,550 shares of Common Stock were reserved for issuance upon the exercise of outstanding Options and 2,815,714 shares of Common Stock were reserved for future grants under the Stock Option Plans, and there were no stock appreciation rights or limited stock appreciation rights outstanding other than those 12 18 attached to such Options, and (c) no shares of Common Stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 shares of Company Ordinary Shares and (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares were held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller's subsidiaries. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares)).
(b) Section 5.3(b) of the Disclosure Letter Schedule 4.4 sets forth as a list of all Options, the Relevant Time a complete and accurate list name of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, Options and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the first date of grant, exercisability and the vesting schedule (including any acceleration provisions with respect thereto)for each such Option. Section 5.3(c) As of the Disclosure Letter sets forthdate hereof, as except for the Options, the Company has no outstanding shares of preferred stock, bonds, debentures, notes or other obligations or securities entitling the holders thereof to vote (or which are convertible into or exercisable for securities having the right to vote) with the stockholders of the Relevant Time , a complete Company on any matter. All issued and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of outstanding shares of Company Ordinary Shares issued thereunderCommon Stock are duly authorized, the number validly issued, fully paid, nonassessable and free of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunderpreemptive rights. Except as set forth on Section 5.3(c) As of the Disclosure Letterdate hereof, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except except as set forth in this Section 5.3 4.4 or in Section 5.3(d) of the Disclosure Letteron Schedule 4.4, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreementsrights on the part of any holders of any class of securities of the Company, orally or in writingand there are no other shares of capital stock of the Company, to purchase or acquire from no securities of the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stockcapital stock or voting securities of the Company, (ii) and no existing options, warrants, calls, subscriptions, convertible securities, or other rights, agreements or commitments which obligate the Company has or any of its subsidiaries to issue, transfer on its behalf or sell any shares of capital stock of, or equity interests in, the Company or any of its subsidiaries. There are no obligation (contingent outstanding obligations of the Company or otherwise) any subsidiary of the Company to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stockcapital stock of the Company. After the Effective Time, the Surviving Corporation will have no obligation created by the Company prior to the date hereof to issue, transfer on its behalf or sell any shares of capital stock of the Company or the Surviving Corporation. Except as contemplated hereby, there are no voting trusts or other equity agreements or voting interest in, understandings to which the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of subsidiaries is a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way party with respect to the price voting of the Company Capital Stock or the value capital stock of the Company or any part thereofof its subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (C Ats Software Inc), Merger Agreement (Misys PLC)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 50,000,000 shares of Company Ordinary Shares Common Stock and 5,000,000 shares of preferred stock, $1.00 par value per share ("Company Preferred Stock"). As of the close of business on the date immediately preceding the date of this Agreement, (i) 14,258,690 shares of Company Common Stock were issued and outstanding, (ii) 17,898 no shares of Seed Preferred Shares. The Sale Shares and Company Common Stock were held in the shares held treasury of the Company or by the Previous Sellers constitute the entire issued and to be issued share capital Subsidiaries of the Company, are the whole of the allotted and issued (iii) no shares of Company Capital Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares Preferred Stock were issued and the A Pref Shares))outstanding.
(b) Section 5.3(b3.2(b) of the Company Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, Schedule lists the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Common Stock in its treasury. All of the allotted reserved for future issuance pursuant to stock options granted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned outstanding as of the Relevant Time by each record holder listed on Section 5.3(b) date of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof this Agreement and the plans under which such options were granted (collectively, the "Company Stock Plans") and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding options to purchase shares of Company Share Options, indicating, with respect to each Company Share OptionCommon Stock (such outstanding options, the "Company Share Plan Stock Options") under which it was grantedthe Company Stock Plans, indicating the number of shares of Company Ordinary Shares Common Stock subject to such each Company Share Stock Option, and the exercise price, the date of grant, vesting schedule and the vesting schedule (including any acceleration provisions with respect thereto)expiration date thereof. Section 5.3(c3.2(b) of the Company Disclosure Letter sets forth, Schedule shows the number of shares of Company Common Stock reserved for future issuance pursuant to warrants or other outstanding rights to purchase shares of Company Common Stock outstanding as of the Relevant Time date of this Agreement (such outstanding warrants or other rights, the "Company Warrants") and the agreement or other document under which such Company Warrants were granted and sets forth a complete and accurate list of all holders of Company Share Plans, Warrants indicating for each Company Share Plan the number and type of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares Common Stock subject to outstanding options thereunder each Company Warrant, and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letterexercise price, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
grant and the expiration date thereof. Except (dx) Except as set forth in this Section 5.3 or in Section 5.3(d3.2(b) of the Company Disclosure LetterSchedule and (y) as reserved for future grants under Company Stock Plans, (i) there are no allotted equity securities of any class of the Company or issued any of its Subsidiaries, or any security exchangeable into or exercisable for such equity securities, issued, reserved for issuance or outstanding and (ii) there are no options, warrants, rights (including conversion equity securities, calls, rights, commitments or preemptive rights and rights agreements of first refusal or similar rights) or agreements, orally or in writing, any character to purchase or acquire from which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound obligating the Company or any of its Subsidiaries to issue, transfer, deliver or sell, or cause to be issued, transferred, delivered or sold, additional shares of capital stock of the Company Capital Stock, or any securities of its Subsidiaries or any security or rights convertible into or exchangeable or exercisable for any such shares, or obligating the Company or any of its Subsidiaries to grant, extend, accelerate the vesting of, otherwise modify or amend or enter into any such option, warrant, equity security, call, right, commitment or agreement. Neither the Company nor any of its Subsidiaries has issued and outstanding any stock appreciation rights, phantom stock, performance based rights or similar rights or obligations. To the knowledge of the Company, other than the Stockholders Agreements, there are no agreements or understandings with respect to the voting (including voting trusts and proxies) or sale or transfer (including agreements imposing transfer restrictions) of any shares of capital stock of the Company or any of its Subsidiaries.
(c) All outstanding shares of Company Capital StockCommon Stock are, (ii) and all shares of Company 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, will be, duly authorized, validly issued, fully paid and nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the TBCA, the Company's Restated Articles of Incorporation or By-laws or any agreement to which the Company has is a party or is otherwise bound. There are no obligation (obligations, contingent or otherwise) , of Company or any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stockthe Company Common Stock or the capital stock of the Company or any of its Subsidiaries or to provide funds to or make any material investment (in the form of a loan, capital contribution or other equity otherwise) in the Company or voting interest in, any Subsidiary of the Company or any other Person or to pay any dividend or to make any entity, other distribution in respect than guarantees of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any bank obligations of Subsidiaries of the Company Capital Stock entered into in the ordinary course of business.
(d) All of the outstanding shares of capital stock of each of the Company's Subsidiaries are duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights and all such shares are owned, of record and beneficially, by the Company or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price another Subsidiary of the Company Capital Stock free and clear of all security interests, liens, claims, pledges, agreements, limitations in the Company's voting rights, charges or the value other encumbrances of any nature.
(e) No consent of the holders of Company or any part thereofStock Options is required in connection with the conversion of such options contemplated by Section 6.11.
Appears in 2 contracts
Sources: Merger Agreement (Prodigy Communications Corp), Merger Agreement (Prodigy Communications Corp)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of of: (i)64,244 i) One Hundred Million (100,000,000) shares of Company Ordinary Shares Common Stock and (ii) 17,898 Ten Million (10,000,000) shares of Seed preferred stock, par value $0.001 per share, of the Company (the "Preferred SharesStock"). The Sale Shares As of the close of business on February 4, 2011, (A) 6,955,258 shares of Common Stock were issued and the outstanding, including 214,098 restricted shares of Common Stock which were issued as Company Stock Awards, (B) no shares of Common Stock were issued and held by the Previous Sellers constitute the entire Company in its treasury and (C) no shares of Preferred Stock were issued and to outstanding or held by the Company in its treasury, and since February 4, 2011 and through the date hereof, no additional shares of Common Stock or shares of Preferred Stock have been issued other than the issuance of shares of Common Stock upon the exercise or settlement of Company Stock Options, Warrants or Company Stock Awards. All of the outstanding shares of capital stock of the Company are, and all shares of capital stock of the Company which may be issued share capital of the Companyas contemplated or permitted by this Agreement will be, are the whole of the allotted and issued shares of Company Capital Stock and have been when issued, duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of non-assessable and not subject to any Sale Share or share held by any Previous Sellerpre-emptive rights. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect No Subsidiary of the Company (nor is there owns any agreement or arrangement for the creation, constitution, grant or issuance shares of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))Common Stock.
(b) As of the date of this Agreement, (i) an aggregate of 191,439 shares of Common Stock were subject to issuance pursuant to Company Stock Options granted under the Company's 2002 Employee Benefit and Consulting Services Compensation Plan and the Company's 2009 Employee Benefit and Consulting Services Compensation Plan (the plans referred to immediately above and the award or other applicable agreements entered into thereunder, in each case as amended, are collectively referred to herein as the "Company Stock Plans") and (ii) an aggregate of 1,196 shares of Common Stock were subject to issuance pursuant to Warrants. Section 5.3(b4.5(b) of the Company Disclosure Letter sets forth as of the Relevant Time date of this Agreement a complete and accurate list of each outstanding Company Stock Award granted by the holders Company under the Company Stock Plans or otherwise and each Warrant and (A) the name of the holder of such Company Capital StockEquity Award or Warrant, showing (B) the number of shares of Common Stock subject to such Capital Stockoutstanding Company Equity Award or Warrant, (C) the exercise price, purchase price or similar pricing of such Company Equity Award, (D) the date on which such Company Equity Award or Warrant was granted or issued, (E) the applicable vesting schedule, and the class extent to which such Company Equity Award or series Warrant is vested and exercisable as of such sharesthe date hereof, held by each such shareholder and, and (F) with respect to shares other than Company Ordinary SharesStock Options, the number of date on which such Company Stock Option expires. All shares of Common Stock subject to issuance under the Company Ordinary Shares (if any) into Stock Plans or the Warrants, upon issuance in accordance with the terms and conditions specified in the instruments pursuant to which such shares they are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offeredissuable, will be duly authorized, validly issued issued, fully paid and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Lawsnon-assessable.
(c) Section 5.3(c) Except for the Company Stock Plans and the Company Equity Awards granted outside of such Company Stock Plans, there are no Contracts to which the Company is a party obligating the Company to accelerate the vesting of any Company Equity Award as a result of the Disclosure Letter sets forth as transactions contemplated by this Agreement (whether alone or upon the occurrence of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, any additional or subsequent events). Other than the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grantEquity Awards, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forthWarrants, as of the Relevant Time date hereof, a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted outstanding (A) securities of the Company or issued any of its Subsidiaries convertible into or exchangeable for shares of capital stock of the Company, (B) options, warrants, rights (including conversion warrants or preemptive rights and rights of first refusal other agreements or similar rights) or agreements, orally or in writing, commitments to purchase or acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any shares of Company Capital Stock, capital stock of (or any securities convertible into or exchangeable for shares of Company Capital Stock, (iicapital stock of) the Company has or (C) restricted shares, restricted stock units, stock appreciation rights, performance shares, profit participation rights, contingent value rights, "phantom" stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any shares of capital stock of the Company, in each case that have been issued by the Company or its Subsidiaries (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as "Company Securities"). All outstanding shares of Common Stock, all outstanding Company Equity Awards, all outstanding Warrants and all outstanding shares of capital stock, voting securities or other ownership interests in any Subsidiary of the Company, have been issued or granted, as applicable, in compliance in all material respects with all Applicable Laws.
(d) There are no obligation (contingent outstanding Contracts requiring the Company or otherwise) any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stock, Company Securities or other equity or voting interest in, Company Subsidiary Securities. Neither the Company or nor any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, Subsidiaries is a party to any voting agreement with respect to any Company Securities or Company Subsidiary Securities.
(iiie) None of (i) the Shares or (ii) Company has not at Securities are owned by any time purchased, redeemed or repaid any Subsidiary of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofCompany.
Appears in 2 contracts
Sources: Merger Agreement (Emergent Group Inc/Ny), Merger Agreement (Universal Hospital Services Inc)
Capitalization. (a) The whole As of September 30, 2023 (the “Capitalization Date”), the authorized capital stock of the allotted Company consists of (i) 50,000,000 shares of Company Common Stock, 19,649,611 of which were issued and outstanding, (ii) 5,000,000 shares of preferred stock, par value $0.01 per share (“Preferred Stock”), of which 10 shares were designated as 18% Senior Redeemable Series D Preferred Stock, none of which were issued and outstanding and (iii) 1,066,005 shares of Company Capital Common Stock subject to Company Equity Awards (for this purpose, with Company PSUs measured assuming achievement of performance metrics at the maximum levels) (the securities referred to in clauses (i) through (iii), including for clarity, Company Common Stock, Preferred Stock, Company RSUs and Company PSUs, the “Company Securities”). Since the Capitalization Date through the date hereof, the Company has not (1) issued any Company Securities or incurred any obligation to make any payments to any Person based on the price or value of any Company Securities, other than in connection with any Company Equity Awards outstanding as of the Relevant Time consists close of business on the Capitalization Date in accordance with their terms, or (i)64,244 2) established a record date for, declared, set aside for payment or paid any dividend on, any Company Securities. As of the date hereof, no dividends have accrued or been declared but are unpaid on any Company Securities, and the Company is not subject to any obligation (contingent or otherwise) to pay any dividend to any current or former holder of any Company Securities.
(b) The issued and outstanding shares of Company Ordinary Shares and Common Stock (iii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and validly issued, issued and are fully paid up and no sum is outstanding nonassessable and (ii) were issued in respect of any Sale Share or share held by any Previous Sellercompliance with all applicable U.S. federal and state securities Laws in all material respects. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect As of the Company (nor is there any agreement or arrangement for the creationdate hereof, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Sharesas set forth above in Section 3.2(a)).
(b) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares the Company and each wholly-owned Subsidiary of the Company, there are no existing and outstanding (A) options, warrants, calls, subscriptions or other than rights, convertible securities, agreements or commitments of any character to which the Company Ordinary Sharesor any of such Subsidiaries is a party obligating the Company or such Subsidiaries to issue, the number of transfer or sell to any Third Party any shares of capital stock or other equity interests in the Company Ordinary Shares (if any) or securities convertible into which or exchangeable for such shares are convertible. The or equity interests, (B) contractual obligations of the Company holds no shares or any of such Subsidiaries to repurchase, redeem or otherwise acquire any capital stock of the Company Capital Stock in its treasury. or (C) voting trusts or similar agreements to which the Company or any of such Subsidiaries is a party with respect to the voting of the capital stock of the Company or such Subsidiary.
(i) All of the allotted issued and issued outstanding shares of Company Capital Stock have been offeredcapital stock, or membership interests or other ownership interests of each Significant Subsidiary of the Company, as applicable, are validly issued issued, fully paid and sold nonassessable (to the extent applicable) and are owned of record and beneficially by the Company, directly or indirectly; and (ii) the Company in compliance or a Subsidiary of the Company has, as of the date of this Agreement and accordance withshall have on the Closing Date, valid and no transfer (or purported transfer) marketable title to all of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned capital stock of, or membership interests or other ownership interests in, as applicable, each Significant Subsidiary of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned Company, free and clear of all any material Liens, other than Permitted Liens except for or any restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under imposed by applicable securities Laws.
(cd) The Company does not have outstanding any bonds, debentures, notes or other indebtedness the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter.
(e) Section 5.3(c3.2(e) of the Company Disclosure Letter sets forth a correct and complete list of each holder of a Company Equity Award as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share OptionsCapitalization Date, indicating, with respect to which schedule shows for each Company Share OptionEquity Award, as applicable, the date such Company Share Plan under which it Equity Award was granted, the number of shares of Company Ordinary Shares Common Stock subject to such Company Share Option, the exercise price, the date of grant, Equity Award (and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all for Company Share Plans, indicating for each Company Share Plan PSUs the number of shares of Company Ordinary Shares issued thereunderCommon Stock assume both target and maximum attainment of the applicable performance criteria), the number of shares of Company Ordinary Shares subject to outstanding options thereunder applicable vesting schedule (and the number terms of shares of Company Ordinary Shares reserved any acceleration rights thereof), for future issuance thereunder. Except as set forth on Section 5.3(c) each holder who is not a current employee of the Disclosure LetterCompany or any of its Subsidiaries whether such Person has ever been an employee of the Company or any of its Subsidiaries, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable and the holder’s state of residence or, for any class or series holder who is not a resident of the United States, country of residence. With respect to each Company Capital Stock other than Equity Award, except as would not be material to the Company Ordinary Shares. Each Company Share Option and its Subsidiaries, taken as a whole, (i) each such grant was granted duly authorized no later than the date on which the issuance of such grant was by its terms effective (the “Grant Date”) by all necessary corporate action, (ii) each such grant was made in compliance in all material respects with all applicable Laws (including all applicable securities Laws) and all of the material terms and conditions of the applicable Company Share Equity Plan, and (iii) no material modifications have been made to any Company Equity Award following the Grant Date. All Company Equity Awards are evidenced by award agreements in the forms materially consistent with forms previously made available to Parent. There are no commitments in any offer letter, Contract, Company Benefit Plan or otherwise that contemplate a grant of, or right to purchase or receive restricted stock units, phantom units or other equity that are not set forth on Section 3.2(e) of the Company Disclosure Letter.
(f) Section 3.2(f) of the Company Disclosure Letter sets forth (i) the aggregate value (in U.S. dollars) of principal outstanding under all indebtedness for borrowed money of the Company and its Subsidiaries (other than intercompany indebtedness) as of August 31, 2023 or any guarantees of any thereof and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights each surety bond and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, performance bond by which the Company or any other Person or to pay any dividend or to make any other distribution in respect its Subsidiaries are bound and the principal amount thereof as of its Capital StockAugust 31, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereof2023.
Appears in 2 contracts
Sources: Merger Agreement (SP Plus Corp), Merger Agreement (SP Plus Corp)
Capitalization. (a) The whole As of the allotted and issued date of this Agreement, the authorized capital stock of the Company Capital Stock consists of (i) 150,000,000 shares of Company Common Stock, of which, as of the Relevant Time consists close of (i)64,244 business on December 30, 2016, 71,591,768 shares of Company Ordinary Shares were issued and outstanding and (ii) 17,898 15,000,000 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital preferred stock of the Company, are the whole par value $0.01 per share (“Company Preferred Stock”), of which, as of the allotted date of this Agreement, no shares were issued and issued outstanding. As of the date of this Agreement, no shares of Company Capital Common Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect shares of any Sale Share or share Company Preferred Stock were held by any Previous Seller. Save for the Sale Shares and the shares in the Company’s treasury. In addition, as of close of business on December 30, 2016, there were outstanding Existing Company held by the Previous Sellers, no Relevant Restricted Stock Awards with respect to an aggregate of 480,573 shares of Company Common Stock and Company Convertible Securities exist in with respect to an aggregate of the 10,975,650 shares of Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))Common Stock.
(b) As of the close of business on December 30, 2016, an aggregate of 3,023,281 shares of Company Common Stock were reserved for issuance but not yet granted under the Alon USA Energy, Inc. Second Amended and Restated 2005 Incentive Compensation Plan and 388,681 shares of Company Common Stock were reserved for issuance but not yet granted under the Alon USA Energy, Inc. 2016 Fair Market Value Stock Purchase Plan. Since December 30, 2016 and through the date of this Agreement, no awards have been granted and no additional shares of Company Common Stock have become subject to issuance under any Company Equity Plan. Section 5.3(b4.2(b) of the Company Disclosure Letter sets forth as of the Relevant Time date of this Agreement a complete and accurate list of each outstanding award granted under any Company Equity Plan and: (A) the holders name of Company Capital Stock, showing the number of shares holder of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Existing Company Ordinary Shares, Restricted Stock Award; (B) the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Common Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such outstanding Existing Company Share OptionRestricted Stock Award; (C) if applicable, the exercise price, purchase price, or similar pricing of such Existing Company Restricted Stock Award; (D) the date on which such Existing Company Restricted Stock Award was granted or issued; and (E) the applicable vesting, repurchase, or other lapse of grantrestrictions schedule, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, extent to which such Existing Company Restricted Stock Award is vested and exercisable as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of date hereof. All shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares Common Stock subject to outstanding options thereunder and issuance under any Company Equity Plan, upon issuance in accordance with the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of specified in the applicable Company Share Plan instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid, and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grantnon-assessable.
(dc) Except as set forth in this Section 5.3 or in Section 5.3(d4.2(c) of the Company Disclosure Letter, since December 30, 2016, and prior to the date of this Agreement, the Company has not issued any shares of Company Common Stock or Company Preferred Stock, has not granted any restricted stock, options, warrants, preemptive rights, subscriptions, calls or other rights, convertible securities, or exchangeable securities, or entered into any other agreements or commitments of any character that might require it to issue any shares of Company Common Stock or Company Preferred Stock, or granted any other awards in respect of any shares of Company Common Stock or Company Preferred Stock and has not split, combined or reclassified any of its shares of capital stock, other than shares of Company Common Stock or Company Preferred Stock issuable upon lapse of the Existing Company Restricted Stock Awards or upon the conversion of Company Convertible Securities.
(d) All of the issued and outstanding shares of Company Common Stock and Company Preferred Stock (i) have been duly authorized and validly issued in accordance with applicable Laws and the Company Certificate, (ii) are fully paid and nonassessable and (iii) are not subject to and were not issued in violation of any option, right of first refusal, preemptive right, subscription right or any similar right or any provision of applicable Law, the Company Certificate, the Company Bylaws or any contract to which the Company is a party or by which it is otherwise bound. At the time of issuance, all such shares that may be issued upon the exercise or vesting of, or pursuant to, Existing Company Restricted Stock Awards or upon the conversion of the Company Convertible Securities (i) will be duly authorized and validly issued in accordance with applicable Laws and the Company Certificate, (ii) will be fully paid and nonassessable and (iii) will not be subject to or issued in violation of (A) any option, right of first refusal, preemptive right, subscription right or any similar right or (B) any provision of applicable Law, the Company Certificate, the Company Bylaws or any contract to which the Company is a party or by which it is otherwise bound.
(e) Except as set forth in Section 4.2(e) of the Company Disclosure Letter, the Company or another of its wholly owned Subsidiaries is the record and beneficial owner of all the outstanding shares of capital stock or other equity ownership interests of each Subsidiary (other than Astro Partners) of the Company (except for directors’ qualifying shares or the like), free and clear of any lien, mortgage, pledge, charge, irrevocable proxy, security interest or encumbrance of any kind (each, a “Lien”), other than Liens arising under the Company Revolving Credit Agreement, and all of such shares or equity ownership interests (i) are duly authorized and validly issued in accordance with applicable Laws and the organizational documents of such Subsidiary, (ii) are fully paid and nonassessable and (iii) are not subject to or were not issued in violation of any option, right of first refusal, preemptive right, subscription right or any similar right under any provision of applicable Law, the organizational documents of such Subsidiary or any contract to which such Subsidiary is a party or by which it is otherwise bound.
(f) As of the date of this Agreement, except for the Existing Company Restricted Stock Awards, the Company Convertible Securities and except for equity securities owned by the Company in its Subsidiaries (other than Astro Partners), and except as set forth in Section 4.2(f) of the Company Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stockcapital stock, or any securities convertible into or exchangeable for shares of Company Capital Stockpartnership interests, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, limited liability company interests or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value securities of the Company or any part thereofof its Subsidiaries issued or authorized and reserved for issuance and (ii) there are no outstanding shares of restricted stock or Rights, or any commitment to authorize, issue or sell the same or any such equity securities, except pursuant to this Agreement.
(g) Except as set forth in Section 4.2(g) of the Company Disclosure Letter, the Company does not own beneficially, directly or indirectly, any capital stock or other equity ownership interests of any Person or any interest in a partnership or joint venture of any kind.
(h) As of the date of this Agreement, no bonds, debentures, notes or other indebtedness of the Company having the right to vote on any matters on which Company Stockholders may vote are issued or outstanding (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of Company Common Stock may vote, other than the Company Convertible Notes. As of the date of this Agreement, the Conversion Rate (as defined in the Company Convertible Notes Indenture as in effect on the date of this Agreement) is 73.1710 shares of Common Stock (as defined in the Company Convertible Notes Indenture as in effect on the date of this Agreement) per $1,000 principal amount of Company Convertible Notes.
(i) As of the date of this Agreement, the issued and outstanding limited partnership interests of Astro Partners consists of 62,520,220 common units, of which 51,000,000 were owned directly or indirectly by the Company. The sole general partner of Astro Partners is Alon USA Partners GP, LLC, which is a wholly owned subsidiary of the Company. All of the outstanding equity interests of Astro Partners were duly authorized and validly issued, free and clear of all Liens except for Liens set forth in Section 4.2(i) of the Company Disclosure Letter, in accordance with the Astro Partnership Agreement and are fully paid (to the extent required by such agreement) and non-assessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware Revised Uniform Limited Partnership Act ). Each Subsidiary of Astro Partners is wholly owned by Astro Partners.
(j) As of the close of business on December 30, 2016, an aggregate of 3,104,764 common units of Astro Partners were reserved for issuance but not yet granted under the Astro Partners LTIP. As of the close of business on December 30, 2016, 14,185 common units of Astro Partners were reserved for issuance pursuant to outstanding award agreements under the Astro Partners LTIP. Since June 30, 2016 and through the date hereof, no awards have been granted and no additional common units of Astro Partners have become subject to issuance under the Astro Partners LTIP. Section 4.2(j) of the Company Disclosure Letter sets forth as of the date of this Agreement a list of each outstanding award granted under the Astro Partners LTIP and: (A) the name of the holder of such award; (B) the number of common units of Astro Partners subject to such outstanding award; (C) if applicable, the exercise price, purchase price, or similar pricing of such award; (D) the date on which such award was granted or issued; (E) the applicable vesting, repurchase, or other lapse of restrictions schedule, and the extent to which such award is vested and exercisable as of the date hereof; and (F) the date on which such award expires, if applicable. All common units subject to issuance under the Astro Partners LTIP, upon issuance in accordance with the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized and validly issued, free and clear of all Liens, and will be fully paid (to the extent required by such agreement) and non-assessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware Revised Uniform Limited Partnership Act ).
Appears in 2 contracts
Sources: Merger Agreement (Delek US Holdings, Inc.), Merger Agreement (Alon USA Energy, Inc.)
Capitalization. (a) The whole As of the allotted and issued Company Capital Stock as date hereof, the authorized capital stock of the Relevant Time Company consists of (i)64,244 150,000,000 shares of Company Ordinary Shares and (ii) 17,898 Common Stock, of which 76,106,805 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire were issued and to be outstanding as of July 17, 2003 and 250 shares are issued share capital and held in the treasury of the Company, are the whole . As of the allotted date hereof, 22,700,000 shares were reserved for issuance pursuant to the Company Option Plans, and issued 17,764,694 shares of Company Capital Common Stock are reserved for issuance pursuant to outstanding Company Stock Options as of July 17, 2003. As of the date hereof, 5,250,000 shares are reserved for issuance pursuant to the Company's 2002 Stock Option Plan and have been 2002 Director Option Plan, and no options to acquire shares of the Company Common Stock are outstanding under the 2002 Stock Option Plan and the 2002 Director Option Plan. As of the date hereof, there are no warrants outstanding to purchase shares of Company Common Stock. All of the outstanding shares of the Company Common Stock are, and all shares of Company Common Stock which may be issued pursuant to the exercise of outstanding Company Stock Options, prior to the Company Merger Effective Time will be, when issued in accordance with the terms thereof, duly authorized and authorized, validly issued, and are fully paid up and no sum is outstanding in respect of non-assessable and not subject to any Sale Share preemptive or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))similar rights.
(b) Section 5.3(b3.2(b) of the Company Disclosure Letter Schedule sets forth a complete list of options under the 1999 Stock Option Plan and the 2000 Stock Option Plan (collectively, the "Company Option Plans") outstanding as of the Relevant Time a complete and accurate list of the holders of Company Capital Stockdate hereof, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and whether or not such Company Stock Option is intended to be an incentive stock option or a non-qualified stock option, the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) exercise price of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunderStock Option, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunderCommon Stock issuable upon exercise of each Company Stock Option. Except All of such Company Stock Options have been granted to employees, directors, or consultants of the Company or a Company Subsidiary in the ordinary course of business consistent with past practices. All Company Stock Options granted under the Company Option Plans have been granted pursuant to option award agreements in substantially the form attached as set forth on an exhibit to Section 5.3(c3.2(b) of the Company Disclosure Letter, there is no allotted Schedule. The Company has made available to Parent or issued its counsel complete and correct copies of the Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws Plans and all terms and conditions forms of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grantoption agreements.
(dc) Except as set forth in this Section 5.3 There are no bonds, debentures, notes or in Section 5.3(dother indebtedness having general voting rights or which are convertible into or exchangeable for equity securities (any of the foregoing, "Convertible Debt") of the Disclosure LetterCompany or any Company Subsidiary issued and outstanding as of the date hereof. As of the date hereof, (i) there are no allotted or issued existing options, warrants, rights (including conversion calls, pre-emptive rights, subscriptions or preemptive rights and rights of first refusal or similar other rights) or , agreements, orally arrangements or in writing, commitments of any kind relating to purchase the issued or acquire from unissued capital stock of the Company or any Company Subsidiary obligating the Company or any Company Subsidiary to issue, transfer or sell or cause to be issued, transferred or sold any shares of Company Capital Stockcapital stock or Convertible Debt of, or other equity interest in, the Company or any Company Subsidiary or securities convertible into or exchangeable for such shares of or equity interests, or obligating the Company Capital Stockor any Company Subsidiary to grant, extend or enter into any such option, warrant, call, subscription or other right, agreement, arrangement or commitment, and (ii) there are no outstanding contractual obligations of the Company has no obligation (contingent or otherwise) any Company Subsidiary to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofCompany Subsidiary or any affiliate of the Company or to provide funds to make any investment (in the form of a loan, capital contribution or otherwise) in any Company Subsidiary or any other entity.
(d) All outstanding shares of Company Common Stock, all outstanding Company Stock Options and all outstanding shares of capital stock of each Company Subsidiary have been issued and granted in compliance with (i) all applicable laws, including applicable securities laws, and (ii) all material requirements set forth in applicable agreements or instruments.
Appears in 2 contracts
Sources: Merger Agreement (Business Objects Sa), Merger Agreement (Crystal Decisions Inc)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 42,000,000 shares of Company Ordinary Shares Common Stock and 3,000,000 shares of undesignated stock. As of January 20, 2005, (i) 17,841,620 shares of Company Common Stock are issued and outstanding, (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued 218,884 shares of Company Capital Common Stock and have been duly authorized and validly issuedare reserved for issuance upon exercise of awards granted pursuant to the Company's 2000 Employee Stock Purchase Plan (the "Company ESPP"), (iii) 1,991,491 shares of Company Common Stock are reserved for issuance upon exercise of awards granted pursuant to the Company's 1997 Stock Incentive Plan (the "1997 Plan"), and (iv) no shares of undesignated stock are fully paid up issued and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))outstanding.
(b) Section 5.3(b4.3(b) of the Company Disclosure Letter Schedule sets forth a true, complete and correct list of all persons who, as of the Relevant Time a complete and accurate list of the holders of Company Capital StockJanuary 20, showing the number of shares of such Capital Stock, and the class or series of such shares, 2005 held by each such shareholder and, with respect outstanding options to shares other than Company Ordinary Shares, the number of acquire shares of Company Ordinary Shares Common Stock (if any) into which such shares are convertible. The the "Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by Options" under the Company in compliance and accordance with, and no transfer (Stock Plans or purported transfer) under any other equity incentive plan or arrangement of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Optionsits Subsidiaries, indicating, with respect to each Company Share OptionStock Option then outstanding, the Company Share Plan tax status of such option under which it was grantedSection 422 of the Code, the number of shares of Company Ordinary Shares Common Stock subject to such Company Share Stock Option, the name of the plan under which such Company Stock Option was granted and the exercise price, the date of grant, and the vesting schedule (and expiration date thereof, including to the extent to which any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, vesting has occurred as of the Relevant Time date of this Agreement and whether (and to what extent) the vesting of such Company Stock Option will be accelerated in any way by the consummation of the transactions contemplated by this Agreement or by the termination of employment or engagement or change in position of any holder thereof following or in connection with the consummation of the Acquisition Merger. The Company has made available to Parent true, a complete and accurate list correct copies of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder Stock Plans and the number 1997 Plan and the forms of shares all stock option agreements evidencing outstanding Company Stock Options.
(c) Except as described in Section 4.3(a), no capital stock of the Company Ordinary Shares or any of its Subsidiaries or any security convertible or exchangeable into or exercisable for such capital stock, is issued, reserved for future issuance thereunderor outstanding as of the date of this Agreement. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or described in Section 5.3(d) of the Disclosure Letter4.3(a), (i) there are no allotted or issued options, preemptive rights, warrants, calls, rights, commitments, agreements, arrangements or understandings of any kind to which the Company or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries is bound, obligating the Company or any of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock of the Company or any of its Subsidiaries or obligating the Company or any of its Subsidiaries to grant, extend or accelerate the vesting of or enter into any such option, warrant, call, right, commitment, agreement, arrangement or understanding. There are no shareholder agreements, voting trusts, proxies or other similar agreements, arrangements or understandings to which the Company or any of its Subsidiaries is a party, or by which it or they are bound, obligating the Company or any of its Subsidiaries with respect to any shares of capital stock of the Company or any of its Subsidiaries. There are no rights or obligations, contingent or otherwise (including conversion or preemptive rights and rights of first refusal in favor of the Company), of the Company or similar rights) or agreements, orally or in writingany of its Subsidiaries, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofof its Subsidiaries or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any such Subsidiary or any other entity. There are no registration rights or other similar agreements, arrangements or understandings to which the Company or any of its Subsidiaries is a party, or by which it or they are bound, obligating the Company or any of its Subsidiaries with respect to any shares of Company Common Stock or shares of capital stock of any such Subsidiary.
(d) All outstanding shares of the Company's capital stock are, and all shares of Company Common Stock reserved for issuance as specified above will be, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, duly authorized, validly issued, fully paid and nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the MBCA, the Company Charter or the Company Bylaws or any agreement to which the Company is a party or is otherwise bound. None of the outstanding shares of Company Common Stock have been issued in violation of any federal or state securities Laws. All of the outstanding shares of capital stock of each of the Company's Subsidiaries are duly authorized, validly issued, fully paid and nonassessable, and all such shares are owned by the Company or a Subsidiary of the Company free and clear of all security interests, liens, claims, pledges, agreements, limitations in voting rights, charges or other encumbrances of any nature whatsoever (collectively, "Liens"). There are no accrued and unpaid dividends with respect to any outstanding shares of capital stock of the Company or any of its Subsidiaries.
(e) The Company Common Stock constitutes the only class of securities of the Company or its Subsidiaries registered or required to be registered under the Securities Exchange Act of 1934, as amended (the "Exchange Act").
Appears in 2 contracts
Sources: Merger Agreement (Nanometrics Inc), Merger Agreement (Nanometrics Inc)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 shares of Company Ordinary i) Twenty Million (20,000,000) Shares and (ii) 17,898 Five Million (5,000,000) shares of Seed Preferred preferred stock, par value $0.10 per share. As of March 31, 2006: (A) 7,115,204 Shares were issued and outstanding, (B) no shares of preferred stock were issued and outstanding and (C) there were 2,403,000 Treasury Shares. The Sale All outstanding Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and validly issued, fully paid, nonassessable and are fully paid up and no sum is outstanding in respect free of any Sale Share or share held by any Previous Sellerpreemptive rights. Save for the Sale Shares and the shares in Since March 31, 2006, the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there has not issued any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (Shares other than pursuant to the Sale Shares and the A Pref Shares))exercise of Stock Options granted under an Equity Compensation Plan.
(b) Section 5.3(b) The Company has reserved 1,610,000 Shares for issuance under the Equity Compensation Plans, of which 10,000 Shares have been reserved for issuance pursuant to Equity Compensation Plans other than the Disclosure Letter sets forth as of the Relevant Time a complete Company’s Second Amended and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, Restated Stock Option Plan for Executive and Key Employees and the class or series Company’s Equity Incentive Plan of such shares2004. As of March 31, held by each such shareholder and2006, with respect to shares the Equity Compensation Plans, there were outstanding Stock Options with respect to 652,000 Shares and, since such date, the Company has not granted, committed to grant or otherwise created or assumed any obligation with respect to any Stock Options, other than as permitted by Section 5.1(b) or other rights or awards under any of the Equity Compensation Plans. Section 3.4(b) of the Company Ordinary SharesDisclosure Schedule sets forth a true, complete and correct list of all outstanding Stock Options, the number of shares Shares subject to each such Stock Option and the grant dates, expiration dates, exercise prices and vesting schedule of Company Ordinary Shares (if any) into which each such shares are convertible. The Company holds no shares of Company Capital Stock in its treasuryOption. All outstanding Stock Options are evidenced by the Stock Option agreements set forth in Section 3.4(b) of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance withDisclosure Schedule, and no transfer (Stock Option agreement contains terms that are inconsistent with, or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledgeaddition to, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Lawsterms contained therein.
(c) Section 5.3(c) The Company has reserved 436,000 Shares for issuance pursuant to certain warrants to purchase Company Common Stock, of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance 100,000 Shares have been reserved for issuance pursuant to that certain Warrant to Purchase Common Stock, dated April 25, 2004, held by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ with all applicable Laws and all terms and conditions an exercise price of the applicable Company Share Plan $7.82 per share and (ii) has 336,000 Shares have been reserved for issuance pursuant to those certain Warrants to Purchase Common Stock, dated November 12, 2004, held by various holders with an exercise price of $10.66 per share (the items in clauses (i) and (ii) being referred to collectively as the “Warrants”). As of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date hereof, except as disclosed in Section 3.4(c) of the Company Disclosure Schedule, no portion of the Warrants has been exercised by the holders thereof and other than pursuant to such grantWarrants, the Company has not granted, committed to grant or otherwise created or assumed any obligation with respect to any warrants for the purchase of the capital stock of the Company. Copies of the Warrants have been filed with the SEC, and no existing warrant agreement contains terms that are inconsistent with, or in addition to, the terms contained therein.
(d) Except as set forth in this Section 5.3 3.4 or as disclosed in Section 5.3(d3.4(d) of the Company Disclosure LetterSchedule, there are (i) there are no allotted outstanding shares of capital stock of, or issued other equity or voting interest in, the Company, (ii) no outstanding securities of the Company convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, the Company (including any Voting Company Debt), (iii) no outstanding options, warrants, rights (including conversion or preemptive rights and rights of first refusal other commitments or similar rights) or agreements, orally or in writing, agreements to purchase or acquire from the Company, or that obligates the Company to issue, any shares of Company Capital Stockcapital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stockcapital stock of, or other equity or voting interest in, the Company, (iv) no obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other Person similar agreement or commitment relating to pay any dividend capital stock of, or to make other equity or voting interest (including any other distribution Voting Company Debt) in, the Company (the items in respect of its Capital Stockclauses (i), (ii), (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted), issued or authorized together with the capital stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company, being referred to collectively as “Company Capital Stock Securities”) or the value of (v) no other obligations by the Company or any part thereofof its Subsidiaries to make any payments based on the price or value of the Shares. There are no outstanding agreements of any kind which obligate the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Company Securities.
(e) Except as disclosed in Section 3.4(c) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries is a party to any agreement restricting the transfer of, relating to the voting of, requiring registration of, or granting any preemptive rights, antidilutive rights or rights of first refusal or similar rights with respect to any securities of the Company.
Appears in 2 contracts
Sources: Merger Agreement (Herbst Gaming Inc), Merger Agreement (Sands Regent)
Capitalization. (a) The whole of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 shares of Company Ordinary Shares and (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued authorized share capital of the Company, are the whole Company is US$20,000 divided into 1,000,000,000 Shares of a par value of US$0.00002 per share. As of the allotted date of this Agreement, (i) 711,520,160 Shares are issued and issued shares outstanding, all of Company Capital Stock and which have been duly authorized and are validly issued, and are fully paid up and non-assessable, (ii) 42,207,780 Shares are held in the treasury of the Company, and (iii) 2,831,820 Shares are reserved for future issuance pursuant to outstanding Company Equity Awards granted pursuant to the Share Incentive Plans. Except as set forth in this Section 3.03, there are no sum is outstanding in respect options, warrants, preemptive rights, conversion rights, redemption rights, share appreciation rights, repurchase rights or other rights, agreements, arrangements or commitments of any Sale Share character relating to the issued or unissued share held by capital of any Previous SellerGroup Company or obligating any Group Company to issue or sell any shares or securities of, or other equity interests in, any Group Company. Save The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the Sale Shares and right to vote) with the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect shareholders of the Company (nor is there on any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))matter.
(b) Section 5.3(b3.03(b) of the Company Disclosure Letter Schedule sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, following information with respect to each Company Share Option, Equity Award outstanding as of the date hereof: (i) the name of the Company Share Plan under which it was granted, Equity Award recipient; (ii) the number of shares of Company Ordinary Shares subject to such Company Share Option, Equity Award; (iii) the exercise price, or purchase price of such Company Equity Award; (iv) the date of grant, on which such Company Equity Award was granted; and (v) the vesting schedule (including any acceleration provisions with respect thereto)date on which such Company Equity Award expires. Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares Each grant of Company Ordinary Shares Equity Award was validly issued thereunder, and properly approved by the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(cBoard (or a duly authorized committee or subcommittee thereof) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions recorded on the financial statements of the applicable Company contained in the Company SEC Reports in accordance with GAAP consistently applied. Except for the Company Equity Awards as set forth in Section 3.03(b) of the Company Disclosure Schedule, there are no commitments or agreements of any character to which any Group Company is bound obligating such Group Company to accelerate or otherwise alter the vesting of any Company Equity Award as a result of the Transactions.
(c) The Company has made available to Parent accurate and complete copies of (x) the Share Plan Incentive Plans pursuant to which the Company has granted the Company Equity Awards that are currently outstanding, and (iiy) has an exercise price per share the form of all award agreements evidencing such Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grantEquity Awards.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there There are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights outstanding contractual obligations of first refusal or similar rights) or agreements, orally or in writing, any Group Company to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchaserepurchase, redeem or otherwise acquire any shares share capital or registered capital, as the case may be, of Capital Stockany Group Company or to provide funds to, or other equity make any investment (in the form of a loan, capital contribution or voting interest otherwise) in, any of the Company Company’s Subsidiaries or any other Person or to pay any dividend or to make any person, other distribution in respect than the acquisition by the Company of its Capital Stocksecurities in connection with the forfeiture of Company Options or repurchase of unvested Company Restricted Shares, (iii) the acquisition by the Company has not at of its securities in connection with the net exercise of Company Options in accordance with the terms thereof, the forfeiture of shares to satisfy tax withholding with respect to any time purchased, redeemed Company Equity Awards or repaid any the transfer or other disposition of securities between or among the Company Capital Stock and its direct or otherwise agreed to reduce any class of its issued indirect wholly owned Subsidiaries.
(e) The outstanding share capital or carried out registered capital, as the case may be, of each of the Company’s Subsidiaries is duly authorized, validly issued, fully paid and non-assessable, and the portion of the outstanding share capital or registered capital, as the case may be, of each of the Company’s Subsidiaries is owned by the relevant Group Company free and clear of all Liens of any transaction having nature whatsoever other than Permitted Encumbrances. Such Group Company has the effect of a reduction of capitalunrestricted right to vote, and (ivsubject to limitations imposed by applicable Law) there are no allottedto receive dividends and distributions on, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofall such equity securities.
Appears in 2 contracts
Sources: Merger Agreement (Wang Benson Haibing), Merger Agreement (Taomee Holdings LTD)
Capitalization. (a) The whole authorized capital stock of the allotted Company consists of 10,000,000 shares of stock, par value $0.001 per share, of which 7,500,000 shares have been designated as common stock and issued Company Capital Stock 2,500,000 shares have been designated as preferred stock, of which 2,000,000 shares have been designated as 10.00% Series B Cumulative Preferred Stock, par value $0.001 per share. As of the Relevant Time consists close of business on April 30, 2019 (i)64,244 the “Capitalization Date”), there were 2,576,219 shares of Company Ordinary Shares Common Stock outstanding and (ii) 17,898 597,139 shares of Seed Series B Preferred Sharesoutstanding. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital As of the Companyclose of business on the Capitalization Date, are the whole of the allotted and issued no shares of Company Capital Common Stock or Series B Preferred were reserved or to be made available for issuance, except as set forth in Section 4.2(a) of the Company Disclosure Schedule. All of the issued and outstanding shares of Company Common Stock and Series B Preferred have been duly authorized and validly issued, issued and are fully paid up paid, nonassessable and free of preemptive rights, with no sum is outstanding in respect of any Sale Share or share held by any Previous Sellerpersonal liability attaching to the ownership thereof. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect Section 4.2(a) of the Company Disclosure Schedule sets forth, as of the date of this Agreement: (nor i) all outstanding awards under the Company’s stock plans, equity incentive plans and similar arrangements set forth in Section 4.2(a) of the Company Disclosure Schedule (collectively, and in each case as the same may be amended to the date hereof, the “Company Stock Plans”), and (ii) any outstanding subscriptions, options, warrants, calls, commitments or agreements of any character which the Company has or by which the Company is there any agreement or arrangement bound calling for the creationpurchase, constitutionsale, grant repurchase, redemption or issuance of any Relevant Securities in respect shares of Company Common Stock, Series B Preferred, any other equity securities of the Company, any Voting Debt (defined below), any phantom equity or similar rights or any securities representing the right to purchase or otherwise receive any shares of the Company capital stock (including any rights plan or agreement). Section 4.2(a) of the Company Disclosure Schedule sets forth a true, complete and correct list of the aggregate number of shares of Company Common Stock issuable upon the exercise of each stock option or subject to each restricted stock award granted under the Company Stock Plans that was outstanding as of the Capitalization Date, the exercise price for each such stock option and any other material terms applicable to such equity awards of the Company. All outstanding shares of Company Securities, all outstanding options to purchase any securities of the Company and Company Restricted Shares, and all outstanding shares of capital stock, voting securities, or other ownership interests in any Subsidiary of the Company, have been issued or granted, as applicable, in compliance in all material respects with all applicable securities laws. Since the Capitalization Date, the Company has not (i) issued or repurchased any shares of its capital stock or any securities convertible into or exercisable for any shares of its capital stock, other than upon the Sale Shares exercise of employee stock options granted prior to such date and disclosed in Section 4.2(a) of the A Pref SharesCompany Disclosure Schedule or pursuant to the surrender of shares to the Company or the withholding of shares by the Company to cover tax withholding obligations under the Company Stock Plans, or (ii) issued or awarded any options, restricted shares or other equity-based awards under the Company Stock Plans. No bonds, debentures, notes, or other indebtedness issued by the Company or any of its Subsidiaries: (i) having the right to vote on any matters on which shareholders or equityholders of the Company or any of its Subsidiaries may vote (or which is convertible into, or exchangeable for, securities having such right); or (ii) the value of which is directly based upon or derived from the capital stock, voting securities, or other ownership interests of the Company or any of its Subsidiaries, are issued or outstanding (collectively, “Voting Debt”).
(b) Section 5.3(b4.2(b) of the Company Disclosure Letter sets forth as Schedule lists the name, jurisdiction of organization, authorized and outstanding shares of capital stock and record and beneficial owners of such capital stock for each Subsidiary of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on in Section 5.3(c4.2(b) of the Company Disclosure LetterSchedule, there is no allotted neither the Company nor any of its Subsidiaries own, directly or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for indirectly, any class equity or series of Company Capital Stock similar interest in, or any interest convertible into or exchangeable for, any equity or similar interest in, any corporation, partnership, joint venture or other similar business association or entity (other than Company Ordinary Sharesits wholly owned Subsidiaries). Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d4.2(b) of the Company Disclosure LetterSchedule, the Company owns, directly or indirectly, all of the issued and outstanding shares of capital stock of or all other equity interests in each of the Company’s Subsidiaries free and clear of any liens, charges, encumbrances, adverse rights or claims and security interests whatsoever (i) there “Liens”), and all of such shares are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights, with no allotted personal liability attaching to the ownership thereof. Neither the Company nor any of its Subsidiaries has or issued is bound by any outstanding subscriptions, options, warrants, rights (including conversion calls, commitments or preemptive rights and rights agreements of first refusal any character calling for the purchase, repurchase, sale, redemption or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company issuance of any shares of Company Capital Stockcapital stock, any other equity security, any Voting Debt, any phantom equity or similar rights of any Subsidiary of the Company, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) representing the Company has no obligation (contingent or otherwise) right to purchase, redeem purchase or otherwise acquire receive any shares of Capital Stock, or other equity or voting interest in, the Company capital stock or any other Person or to pay equity security of any dividend or to make any other distribution such Subsidiary. Except as set forth in respect of its Capital Stock, (iiiSection 4.2(b) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capitalDisclosure Schedule, and (iv) there are no allotted, issued or authorized restrictions on the Company with respect to voting the stock appreciation rights, phantom stock awards or other rights that are linked in of any way to the price Subsidiary of the Company Capital Stock or the value of the Company or any part thereofCompany.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (ATRM Holdings, Inc.), Merger Agreement (Digirad Corp)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of of: (i)64,244 i) 200,000,000 shares of Company Ordinary Shares Common Stock and (ii) 17,898 10,000,000 shares of Seed Preferred Sharespreferred stock, par value $0.001 per share, all of which are undesignated. The Sale Shares As of the date hereof, (i) 53,939,431 shares of Company Common Stock were issued and the outstanding, (ii) 6,706,432 shares of Company Common Stock were subject to issuance pursuant to Company Options, (iii) 3,618,722 shares of Company Common Stock were subject to issuance pursuant to unvested Company Restricted Stock Awards, and (iv) 0 shares of Company Common Stock were held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))as treasury shares.
(b) Section 5.3(b4.4(b) of the Company Disclosure Letter Schedule sets forth forth, as of the Relevant Time date hereof, a complete and accurate list of (i) all outstanding Company Options, including the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Sharesgrant date, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Common Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect subject to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grantaward, and the vesting schedule exercise price per share and (ii) all outstanding Company Restricted Stock Awards, including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder grant date and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(cCommon Stock subject to each such award.
(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option Compensatory Award was (i) was granted in accordance with the terms of the applicable Company Equity Incentive Plan and applicable Law, and (ii) validly issued and properly approved by the board of directors of the Company (or a duly authorized committee or subcommittee thereof) no later than the date of grant in material compliance with all applicable Laws legal requirements and all terms and conditions of recorded on the applicable Company’s financial statements in accordance with GAAP. Each Company Share Plan and (ii) has Option was granted with an exercise price per share of Company Ordinary Share Common Stock equal to or greater than the fair market value of a share of the Company Ordinary Share Common Stock on the date of such grant.
(d) Except (i) None of the outstanding Company Common Stock is entitled or subject to any preemptive right, right of repurchase, right of participation, or any similar right; (ii) none of the outstanding Company Common Stock is subject to any right of first refusal in favor of any of the Acquired Companies; and (iii) there is no contract to which any of the Acquired Companies is a party relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging, or otherwise disposing of (or from granting any option or similar right with respect to), any Company Common Stock. None of the Acquired Companies is under any obligation, nor is any of the Acquired Companies bound by any contract pursuant to which it will become obligated, to repurchase, redeem, or otherwise acquire any outstanding Company Common Stock. No Subsidiary of the Company owns any shares of Company Common Stock.
(e) There are no bonds, debentures, notes, or other indebtedness of the Acquired Companies having the right to vote (or convertible or exercisable or exchangeable for securities having the right to vote) on any matters on which stockholders of the Company may vote.
(f) As of the date hereof, and except as set forth in this Section 5.3 or in Section 5.3(dSections 4.4(a) of the Disclosure Letterand (b), there is no: (i) there are no allotted outstanding subscription, option, call, warrant, or issued options, warrants, rights other right (including conversion whether or preemptive rights and rights of first refusal or similar rightsnot currently exercisable) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stockthe capital stock, restricted stock unit, stock-based performance unit, shares of phantom stock, stock appreciation right, profit participation right, or any securities other right that is linked to, or the value of which is based on or derived from, the value of any shares of capital stock of the Company; (ii) outstanding security, instrument, bond, debenture or note that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the Acquired Companies; or (iii) stockholder rights plan (or similar plan commonly referred to as a “poison pill”) or Contract under which any Acquired Company is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities.
(g) All of the outstanding shares of Company Capital StockCommon Stock have been duly authorized and validly issued, and are fully paid and nonassessable.
(h) Section 4.4(h) of the Company Disclosure Schedule sets forth the name, the number, and type of outstanding equity interests and jurisdiction of incorporation or organization of each (i) Company Subsidiary and (ii) entity (other than the Company has Subsidiaries) in which the Company or any Company Subsidiary owns any equity interest. All of the outstanding equity interests or other ownership interests in each Company Subsidiary have been validly issued, fully paid, and nonassessable, and are owned by the Company, free and clear of all Encumbrances, other than transfer restrictions imposed under applicable securities Laws. There are no obligation (contingent options, warrants, rights, calls, puts, convertible or otherwise) exchangeable securities, stock-based performance units or other rights to purchaseacquire shares of capital stock of any Company Subsidiary or Contracts to which any Company Subsidiary is a party or by which any Company Subsidiary is bound obligating any Company Subsidiary to issue, redeem deliver, or otherwise acquire sell, or cause to be issued, delivered, or sold, additional shares of capital stock of, or any security convertible or exchangeable for any shares of Capital Stockcapital stock of, any Company Subsidiary. Except as set forth on Section 4.4(h) of the Company Disclosure Schedule, the Company does not own, directly or indirectly, any capital stock, membership interest, partnership interest, joint venture interest, voting interest, or other equity interest in any Person (other than the Company Subsidiaries), nor does the Company nor any Company Subsidiary have any obligation, contingent, or voting interest otherwise, to participate in, the Company provide funds to, make any loan, capital contribution, guarantee, or consummate any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked investment in any way to the price of the Company Capital Stock or the value of the Company or any part thereofPerson.
Appears in 2 contracts
Sources: Merger Agreement (Harmony Biosciences Holdings, Inc.), Merger Agreement (Zynerba Pharmaceuticals, Inc.)
Capitalization. (a) The whole authorized capital stock of STFC consists of 100,000,000 Shares, 2,500,000 Class A Preferred Shares and 2,500,000 Class B Preferred Shares. As of the allotted close of business on July 7, 2021 (the “Measurement Date”), (i) 44,115,990 Shares are issued and outstanding, (of which 25,000 were STFC RSAs assuming attainment of all applicable performance-based vesting requirements at the maximum payout levels), (ii) no Class A Preferred Shares and no Class B Preferred Shares are issued Company Capital and outstanding, (iii) 3,329,519 Shares were issuable in respect of outstanding STFC RSUs, assuming attainment of all applicable performance-based vesting requirements at the maximum payout levels, (iv) 570,275 Shares were subject to outstanding STFC Stock Options, and (v) 6,914,512 shares are held in STFC’s treasury and no Shares are held by a Subsidiary of STFC. Except as set forth in this Section 5.03(a), as of the Relevant Time consists of (i)64,244 Measurement Date, there are no outstanding shares of Company Ordinary capital stock of or other voting securities or ownership interests in STFC. From the close of business on the Measurement Date through the date of this Agreement, there have been no (I) issuances of any Shares and (ii) 17,898 shares or any other equity or voting securities or interests in STFC other than issuances of Seed Preferred Shares. The Sale Shares and pursuant to the shares held by the Previous Sellers constitute the entire issued and to be issued share capital exercise, vesting or settlement, as applicable, of STFC Equity Awards outstanding as of the Company, are close of business on the whole Measurement Date in accordance with the terms of such STFC Equity Awards in effect as of the allotted Measurement Date or (II) grants of any STFC Equity Awards or any other equity or equity-based awards that could result in the issuance of Shares.
(b) Other than 423,252 Shares reserved for issuance under the ESPP or pursuant to the terms of the MSPP as in effect on the date of this Agreement, there are no outstanding contractual obligations of STFC or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Shares or STFC Share Rights or to pay any dividend or make any other distribution in respect thereof (other than quarterly cash dividends paid by STFC on the Shares not in excess of $0.10 per Share, per quarter). There are no shareholder agreements, voting trusts or other agreements or understandings to which STFC or any of its Subsidiaries is a party with respect to the holding, voting, registration, redemption, repurchase or disposition of, or that restricts the transfer of, any capital stock or other voting securities or equity interests of STFC. All outstanding Shares are, and any additional Shares issued shares of Company Capital Stock by STFC after the date hereof and have been prior to the Effective Time will be, duly authorized and validly issued, and are fully paid up and no sum is outstanding nonassessable, and not subject to or issued in respect violation of any Sale Share purchase option, call option, right of first refusal, preemptive right, subscription right or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares)).
(b) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Lawssimilar right.
(c) With respect to each STFC Equity Award, Section 5.3(c5.03(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the STFC Disclosure Letter sets forth, as of the Relevant Time Measurement Date, a complete and accurate list the name of all Company Share Plans, indicating for each Company Share Plan the number holder of shares of Company Ordinary Shares issued thereundersuch STFC Equity Award, the number of shares vested and unvested Shares covered by such STFC Equity Award (assuming attainment of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions performance-based vesting requirements at the maximum payout levels), the date of grant, the vesting schedule applicable Company Share Plan and (ii) has an to the STFC Equity Awards, the cash exercise price or ▇▇▇▇▇ ▇▇▇▇▇ per share of Company Ordinary Share equal such STFC Equity Award, if applicable, and the applicable expiration date. No STFC Stock Option is subject to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) 409A of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights Code and rights of first refusal or similar rights) or agreements, orally or in writing, each STFC Stock Option intended to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any qualify as an “incentive stock option” under Section 422 of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofCode so qualifies.
Appears in 2 contracts
Sources: Merger Agreement (State Auto Financial CORP), Merger Agreement
Capitalization. (a) The whole As of December 22, 2006 (the “Capitalization Date”), the authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of consisted entirely of: (i)64,244 i) 16,000,000 shares of Company Ordinary Shares Common Stock, of which 9,532,029 shares of Company Common Stock were issued and outstanding; and (ii) 17,898 1,000,000 shares of Seed Serial Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire Stock, par value $1.00 per share, none of which were issued and to be issued share capital outstanding or held in the treasury of the Company, are the whole . All issued and outstanding shares of capital stock of the allotted Company and issued its Subsidiaries are validly issued, fully paid and nonassessable. As of the Capitalization Date, there were (x) Company Stock Options representing in the aggregate the right to acquire 439,520 shares of Company Capital Common Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale (y) Company Restricted Shares and the shares relating to in the aggregate 320,318 shares of Company held by the Previous Sellers, no Relevant Securities exist in respect of Common Stock under the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of Stock Plans. Schedule 3.2(a) to the Company (other than the Sale Shares and the A Pref Shares)).
(b) Section 5.3(b) of the Disclosure Letter Schedule sets forth a correct and complete list, as of the Relevant Time a complete and accurate list Capitalization Date, of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Common Stock subject to Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares unvested Company Restricted Shares or other rights to purchase or receive Company Common Stock, or benefits based on the value of Company Ordinary Shares subject to such Common Stock, granted under the Company Share OptionStock Plans, the exercise price, the date of grantEmployee Benefit Plans or otherwise, and the vesting schedule holders who are executive officers of the Company (including any acceleration provisions with respect thereto). Section 5.3(c) breakdowns by individuals for holders who are directors or executive officers of the Disclosure Letter sets forthCompany), as the dates of grant and the exercise prices thereof. No bonds, debentures, notes or other indebtedness of the Relevant Time Company having the right to vote (or convertible into, a complete and accurate list or exchangeable for, securities having the right to vote) on any matters on which holders of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) capital stock of the Disclosure Letter, there is Company may vote (“Company Voting Debt”) are issued or outstanding. There are no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions outstanding obligations of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal or its Subsidiaries to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stock, capital stock or other equity interests of the Company or any of its Subsidiaries. Except as set forth above, no shares of capital stock or other voting securities of the Company have been issued or reserved for issuance or are outstanding, other than the shares of Company Common Stock reserved for issuance under the Company Stock Plans. Except as set forth above, there are no options, warrants, rights, convertible or exchangeable securities, “phantom” stock rights, stock appreciation rights, stock-based performance units, commitments, Contracts, arrangements or undertakings of any kind to which the Company or any of its Subsidiaries is a party or by which any of them is bound: (A) obligating the Company or any of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or other equity interests in, or any security convertible or exercisable for or exchangeable into any capital stock of or other equity interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, Subsidiaries or any Company Voting Debt; (iiiB) obligating the Company has not at any time purchased, redeemed or repaid any of its Subsidiaries to issue, grant, extend or enter into any such option, warrant, call, right, security, unit, commitment, Contract, arrangement or undertaking; or (C) giving any Person the Company Capital Stock right to receive any economic benefit or otherwise agreed right similar to reduce any class or derived from the economic benefits and rights accruing to holders of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofof its Subsidiaries.
(b) Except as set forth on Schedule 3.2(b) to the Company Disclosure Schedule, the Company owns, directly or indirectly, all of the issued and outstanding shares of capital stock and other equity interests of its Subsidiaries, free and clear of all liens, pledges, charges, encumbrances and other security interests of any nature whatsoever (collectively, “Liens”). A correct and complete list of all of the Company’s Subsidiaries, together with the jurisdiction of incorporation or organization of each Subsidiary and the percentage of each Subsidiary’s outstanding capital stock or other equity interests owned by the Company or another of its Subsidiaries, is set forth in Schedule 3.2(b)-1 to the Company Disclosure Schedule. A correct and complete list of all corporations, partnerships, limited liability companies, associations and other entities (excluding the Company’s Subsidiaries) in which the Company or any Subsidiary of the Company owns any joint venture, partnership, strategic alliance or similar interest, together with the jurisdiction of incorporation or organization of each such entity and the percentage of each such entity’s outstanding capital stock or other equity interests owned by the Company or any of its Subsidiaries, is set forth in Schedule 3.2(b)-2 to the Company Disclosure Schedule. Except for its interest in the Subsidiaries, joint venture or similar entities as set forth in Schedule 3.2(b)-2 to the Company Disclosure Schedule, the Company does not own, directly or indirectly, any capital stock interest, equity membership interest, partnership interest, joint venture interest or other equity interest in any Person. Neither the Company nor any of its Subsidiaries is obligated to make any contribution to the capital of, make any loan to or guarantee the debts of any joint venture or similar entity (excluding the Company’s wholly-owned Subsidiaries).
(c) Parent has prior to the date of this Agreement received a correct and complete copy of each Company Stock Plan.
Appears in 2 contracts
Sources: Merger Agreement (Cenveo, Inc), Merger Agreement (Cadmus Communications Corp/New)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as consists of 40,000,000 Shares. As of the Relevant Time consists date of this Agreement, (i)64,244 shares i) 6,733,245 Shares are issued and outstanding, all of Company Ordinary Shares which are validly issued, fully paid and nonassessable, (ii) 17,898 shares of Seed Preferred Shares. The Sale zero Shares and are held in the shares held by the Previous Sellers constitute the entire issued and to be issued share capital treasury of the Company, (iii) zero Shares are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares)).
(b) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital StockSubsidiaries, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary (iv) 1,303,814 Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunderpursuant to outstanding Company Stock Options and other purchase rights (the “Company Stock Awards”) granted pursuant to the Company Stock Option Plans. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 3.03, there are no options, warrants or in other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock of the Company or any Subsidiary or obligating the Company or any Subsidiary to issue or sell any shares of capital stock of, or other equity interests in, the Company or any Subsidiary. Section 5.3(d) 3.03 of the Disclosure Letter, Schedule sets forth the following information with respect to each Company Stock Award outstanding on the date of this Agreement: (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights the name and rights address of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, Stock Award recipient; (ii) the particular plan pursuant to which such Company Stock Award was granted; (iii) the number of shares of Company common stock subject to such Company Stock Award; (iv) the exercise or purchase price of such Company Stock Award; (v) the date on which such Company Stock Award was granted; (vi) the applicable vesting schedule; (vi) the date on which such Company Stock Award expires; (vii) the tax status (i.e., incentive stock options or non-qualified stock options) and (viii) whether the exercisability of or right to repurchase of such Company Stock Award will be accelerated in any way by the transactions contemplated by this Agreement. No options to purchase Company common stock from the Company are outstanding other than options granted pursuant to the Company Stock Option Plans. The Company has made available to Parent accurate and complete copies of all Company Stock Option Plans. All Shares subject to issuance as aforesaid, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable. There are no obligation (contingent outstanding contractual obligations of the Company or otherwise) any Subsidiary to purchaserepurchase, redeem or otherwise acquire any Shares or any capital stock of any Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Subsidiary or any other person. There are no commitments or agreements of any character to which the Company is bound obligating the Company to accelerate the vesting of any Company Stock Option as a result of the Merger. All outstanding shares of Capital StockCompany common stock, or all outstanding Company Stock Options and all outstanding shares of capital stock of each Subsidiary have been issued and granted in compliance in all material respects with (i) all applicable securities laws and other equity or voting interest inapplicable Laws and (ii) all requirements set forth in applicable contracts.
(b) Each outstanding share of capital stock of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable, and each such share is owned by the Company or another Subsidiary free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on the Company’s or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation Subsidiary’s voting rights, phantom stock awards or charges and other rights that are linked in encumbrances of any way to the price of the Company Capital Stock or the value of the Company or any part thereofnature whatsoever.
Appears in 2 contracts
Sources: Merger Agreement (Bio Logic Systems Corp), Merger Agreement (Natus Medical Inc)
Capitalization. (a) The whole As of the allotted and issued date hereof, the Company Capital Stock as is authorized to issue up to 650,000,000 ordinary shares, each of no par value. As of August 7, 2023 (the Relevant Time consists of “Company Capitalization Date”), (i)64,244 shares of A) 116,138,350 Company Ordinary Shares were issued and outstanding (not including shares held in treasury), (B) 109,627,881 Company Ordinary Shares were held in the Company’s treasury, (C) Company Options covering 191,967 Company Ordinary Shares were outstanding, (D) Company RSUs covering 3,921,056 Company Ordinary Shares were outstanding, (E) Company PSUs covering 368,932 Company Ordinary Shares were outstanding (assuming achievement of the applicable performance goals at the target level), and (iiF) 17,898 shares of Seed Preferred Shares4,138,694 Company Ordinary Shares were reserved for issuance but not yet granted pursuant to the Company Equity Plan. The Sale All the outstanding Company Ordinary Shares are, and all Company Ordinary Shares reserved for issuance as described above shall be, when issued in accordance with the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Companyrespective terms thereof, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and authorized, validly issued, and are fully paid up and no sum is outstanding in respect nonassessable and free of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))preemptive rights.
(b) Section 5.3(b3.2(b) of the Company Disclosure Letter sets forth a true and complete list, as of the Relevant Time a complete and accurate list Company Capitalization Date, of (i) each Company Equity Award, (ii) the name or employee identification number of the holders of Company Capital StockEquity Award holder, showing (iii) the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares underlying each Company Equity Award (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock assuming that applicable performance metrics in its treasury. All respect of the allotted and issued shares of Company Capital Stock have been offeredPSUs are achieved at “target” levels), validly issued and sold by (iv) the date on which the Company in compliance and accordance withEquity Award was granted, (v) the ordinary vesting schedule with respect to the Company Equity Award, (vi) the exercise price of each Company Option, and no transfer (or purported transfervii) the expiration date of any shares of each Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities LawsOption.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or 3.2(a) and Section 3.2(b), and other than the Company Ordinary Shares that have become outstanding after the Company Capitalization Date that were reserved for issuance under the Company Equity Plan and issued in Section 5.3(d) accordance with the terms of the Disclosure LetterCompany Equity Plan and applicable Company Equity Award, in each case in effect as of the date hereof: (i) the Company does not have any ordinary shares or other equity or equity-based interests issued or outstanding and (ii) there are no allotted or issued outstanding subscriptions, options, phantom equity rights, share appreciation, restricted share unit awards, warrants, puts, calls, exchangeable or convertible securities or other similar rights (including conversion or preemptive rights and rights of first refusal agreements or similar rights) or agreements, orally or in writing, any other Contract to purchase or acquire from which the Company or any shares of Company Capital StockSubsidiary is a party or is otherwise bound obligating the Company or any Company Subsidiary (other than transactions solely among wholly owned Company Subsidiaries and/or the Company) to (A) issue, transfer or sell, or make any payment with respect to, any ordinary shares or other equity interests of the Company or any Company Subsidiary or securities convertible into or into, exchangeable for or exercisable for such shares of Company Capital Stockor equity interests, (iiB) the Company has no obligation grant, extend or enter into any such subscription, option, warrant, put, call, exchangeable or convertible securities or other similar right or agreement or (contingent or otherwiseC) to purchase, redeem or otherwise acquire any ordinary shares of Capital Stock, or other equity interests. Except as set forth in Section 3.2(a) and Section 3.2(b), and other than the Company Ordinary Shares that have become outstanding after the Company Capitalization Date that were reserved for issuance under the Company Equity Plan and issued in accordance with the terms of the Company Equity Plan and applicable Company Equity Award, in each case in effect as of the date hereof, there are no outstanding subscriptions, options, phantom equity rights, share appreciation, restricted share unit awards, warrants, puts, calls, exchangeable or voting interest in, convertible securities or other similar rights or agreements or any other Contract to which the Company or any Company Subsidiary is a party or is otherwise bound obligating the Company or any Company Subsidiary (other Person or to pay any dividend or than transactions solely among wholly owned Company Subsidiaries and/or the Company) to make any investment (in the form of a loan, capital contribution or similar form) in any Company Subsidiary that is not wholly owned or in any other distribution Person. There are no outstanding obligations of the Company nor, except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, any Company Subsidiary (other than in respect of its Capital Stocktransactions solely among wholly owned Company Subsidiaries and/or the Company) (1) restricting the transfer of, (iii2) affecting the Company has not at voting rights of, (3) requiring the repurchase, redemption or disposition of, or containing any time purchasedright of first refusal, redeemed right of first offer or repaid similar right with respect to, (4) requiring the registration for sale of or (5) granting any of the Company Capital Stock preemptive or otherwise agreed to reduce anti-dilutive rights with respect to, any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards ordinary shares or other rights that are linked in any way to the price of the Company Capital Stock or the value equity interests of the Company or any part thereofCompany Subsidiary.
(d) Neither the Company nor any Company Subsidiary has outstanding bonds, debentures, notes or other similar obligations, the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the Company Shareholders on any matter.
Appears in 2 contracts
Sources: Merger Agreement (Tapestry, Inc.), Agreement and Plan of Merger (Capri Holdings LTD)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 i) 250,000,000 shares of Company Ordinary Shares Common Stock and (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued 20,000,000 shares of Company Capital Preferred Stock. As of the close of business on March 9, 2022 (the “Capitalization Reference Date”), (A) 182,274,641 shares of Company Common Stock were issued and have been duly authorized outstanding, and (B) no shares of Company Preferred Stock were issued and outstanding. All outstanding shares of Company Common Stock were validly issued, fully paid, nonassessable and are fully paid up and no sum is outstanding in respect free of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))preemptive rights.
(b) Section 5.3(b3.04(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time Capitalization Reference Date, a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan (i) the aggregate number of shares of Company Ordinary Shares issued thereunderCommon Stock that are subject to Company Options, (ii) the aggregate number of shares of Company Ordinary Shares Common Stock that are subject to outstanding options thereunder Company Warrants, and (iii) the aggregate number of shares of Company Ordinary Shares Common Stock that are subject to Company RSUs (assuming maximum levels of achievement). As of the Capitalization Reference Date, 35,108,527 shares of Company Common Stock were reserved for future issuance thereunderpursuant to the Company Stock Plans. Except as set forth on Section 5.3(cAll Company Equity Awards have been, in all material respects, validly issued and properly approved by the Company Board (or a duly authorized committee or subcommittee thereof) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance accordance with all applicable Laws Applicable Law and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grantStock Plan.
(dc) Except as set forth in this Section 5.3 3.04(a) or in as set forth on Section 5.3(d3.04(b) of the Company Disclosure Letter and except for shares of Company Common Stock that have become outstanding after the Capitalization Reference Date but were reserved for issuance as set forth in Section 3.04(b) or as set forth on Section 3.04(b) of the Company Disclosure Letter, as of the date hereof there are (i) there are no allotted outstanding shares of capital stock of, or issued other equity or voting interest in, the Company, (ii) no outstanding securities of the Company convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, the Company, (iii) no outstanding options, stock appreciation rights, warrants, restricted stock units, rights (including conversion or preemptive rights and rights of first refusal other commitments or similar rights) or agreements, orally or in writing, agreements to purchase or acquire from the Company, or that obligates the Company to issue, any shares of Company Capital Stockcapital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stockcapital stock of, or other equity or voting interest in, the Company, (iv) no obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other Person similar agreement or commitment (whether payable in equity, cash or otherwise) relating to pay any dividend capital stock of, or to make other equity or voting interest (including any other distribution voting debt) in, the Company (the items in respect of its Capital Stockclauses (i), (ii), (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv), together with the capital stock of the Company, being referred to collectively as “Company Securities”) there are and (v) no allotted, issued other obligations by the Company or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way of its Subsidiaries to make any payments based on the price of the Company Capital Stock or the value of the Company Securities. Except as set forth in this Section 3.04, there are no outstanding Contracts of any kind which obligate the Company or any part thereofof its Subsidiaries to repurchase, redeem or otherwise acquire any Company Securities.
(d) Other than the Company’s certificate of incorporation, the Company’s bylaws and this Agreement, neither the Company nor any of its Subsidiaries is a party to any Contracts restricting the transfer of, relating to the voting of, requiring registration of, or granting any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any securities of the Company.
Appears in 2 contracts
Sources: Merger Agreement (Bioceres Crop Solutions Corp.), Merger Agreement (Marrone Bio Innovations Inc)
Capitalization. (a) The whole authorized capital of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 990,000,000 shares of Company Ordinary Shares Common Stock and 10,000,000 shares of undesignated Company Preferred Stock. At the close of business on January 25, 2017, (i) 500,121,178 shares of Company Common Stock were issued and outstanding, (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued 583,333 shares of Company Capital Common Stock were reserved for issuance pursuant to outstanding Company Options, (iii) 2,380,950 shares of Company Common Stock were reserved for issuance pursuant to outstanding Company Warrants, and (iv) no shares of Company Common Stock were reserved for issuance pursuant to outstanding Company Restricted Stock Units. All outstanding shares of Company Common Stock have been duly authorized and validly issued, issued and are fully paid up paid, nonassessable and no sum is outstanding in respect free of any Sale Share or share held by any Previous Sellerpreemptive rights. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect Section 2.6(a) of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares)).
(b) Section 5.3(b) of the Disclosure Letter Schedule sets forth a true, complete and correct list, as of the Relevant Time a complete and accurate list close of the holders business on January 25, 2017, of all Company Capital StockOptions, showing the number of shares of such Capital StockCompany Warrants, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary SharesRestricted Stock Units, the number of shares of Company Ordinary Shares (if any) into which such shares are convertibleCommon Stock subject thereto, the grant dates, expiration dates and the exercise or base prices. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by With respect to the Company in compliance Options and accordance withCompany Restricted Stock Units, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) each grant of a Company Option and Company Restricted Stock Unit was granted duly authorized no later than the date on which the grant of such Company Option or Company Restricted Stock Unit was by its terms to be effective (the “Grant Date”) by all necessary corporate action, including, as applicable, approval by the Board, or a committee thereof, (ii) each such grant was made in compliance accordance with all applicable Laws and all the terms and conditions of the applicable Company Share Plan Equity Compensation Plan, the Exchange Act and all other applicable Law, (iiiii) has an the per share exercise price per share of each Company Ordinary Share equal to or greater Option and Company Restricted Stock Unit was not less than the fair market value of a share of Company Ordinary Share Common Stock on the date applicable Grant Date, and (iv) each such grant was properly accounted for in all material respects in accordance with GAAP in the financial statements (including the related notes) of such grantthe Company.
(db) Except as set forth in this Section 5.3 or in Section 5.3(d2.6(b) of the Company Disclosure LetterSchedule, and except for the Company Options, the Company Warrants, and the Company Restricted Stock Units, there are on the date hereof no outstanding (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights securities of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stockcapital stock or voting securities or ownership interests in the Company, (ii) options, warrants, rights or other agreements or commitments requiring the Company has to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (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, voting securities or other ownership interests in the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of the Company, being referred to collectively as “Company Securities”), or (iv) obligations by the Company or any Company Subsidiary to make any payments based on the price or value of the shares of Company Common Stock. Other than pursuant to the Company Option Plan, there are no obligation (contingent outstanding obligations of the Company or otherwise) any Company Subsidiary to purchase, redeem or otherwise acquire any shares of Capital Stock, Company Securities. There are no voting trusts or other equity agreements or voting interest in, understandings to which the Company or any other Person or Company Subsidiary is a party with respect to pay any dividend or to make any other distribution in respect the voting of its Capital Stock, (iii) capital stock of the Company has not at any time purchased, redeemed or repaid any Company. All outstanding securities of the Company Capital Stock or otherwise agreed to reduce have been offered and issued in compliance in all material respects with all applicable Securities Laws and any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, applicable U.S. state securities and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereof“blue sky” laws.
Appears in 2 contracts
Sources: Merger Agreement (Bearing Resources Ltd.), Merger Agreement (Li3 Energy, Inc.)
Capitalization. (ai) The whole of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 shares of Company Ordinary Shares and (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share authorized capital of the Company, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect stock of the Company consists of 25,000,000 Shares of Company Common Stock and 1,000,000 shares, $.01 par value per share, of preferred stock (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect "Company Preferred Stock"). As of the Company date of this Agreement: (other than the Sale A) 13,623,394 Shares and the A Pref Shares)).
(b) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital StockCommon Stock were issued and outstanding, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if anyB) into which such shares are convertible. The Company holds no shares of Company Capital Preferred Stock were issued or outstanding, and (C) no Shares of Company Common Stock were held by the Company in its treasury. All of the allotted issued and issued shares outstanding Shares of Company Capital Common Stock have been offeredduly authorized and are validly issued, validly issued and sold by the Company in compliance and accordance withfully paid, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereundernonassessable. Except as set forth on Section 5.3(c) of the Disclosure Letterindicated in Schedule 3(b), there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted outstanding or issued authorized options, warrants, purchase rights, subscription rights, conversion rights, exchange rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, or other equity contracts or voting interest in, commitments that could require the Company or any other Person Subsidiary thereof to issue, sell, or otherwise cause to pay become outstanding any dividend or to make any other distribution in respect of its Capital Stockcapital stock or the capital stock of any Subsidiary thereof. There are no outstanding or authorized stock appreciation, (iii) phantom stock, profit participation or similar rights with respect to the Company has not at or any time purchased, redeemed or repaid any of its Subsidiaries. All shares of capital stock of Subsidiaries of the Company Capital Stock are wholly owned directly or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having indirectly by the effect of a reduction of capitalCompany and have been duly authorized and are validly issued, fully paid and nonassessable.
(ivii) Except as provided in Schedule 3(b), there are no allotted, issued voting trusts or authorized stock appreciation rights, phantom stock awards shareholder agreements to which the Company or other rights that are linked in any way Subsidiary thereof is a party with respect to the price voting of the Company Capital Stock or the value capital stock of the Company or any part Subsidiary thereof.
(iii) The Class A Warrants and Class B Warrants expire on July 28, 1998 and the Class C Warrants expire on January 11, 2000. Upon consummation of the Transactions, the Warrants, Substitute Options and Anchor Bay Option shall have been adjusted so that, in the case of each Warrant (other than any Warrant that has expired in accordance with its terms) or applicable Option, upon exercise and payment of the exercise price, any holder thereof shall have the right to receive only $5 per share, and in no event shall have the right to receive any shares of capital stock of the Company or the Surviving Corporation.
Appears in 2 contracts
Sources: Merger Agreement (Analog Acquisition Corp), Merger Agreement (Allied Digital Technologies Corp)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of of: (i)64,244 i) 20,000,000 shares of Company Ordinary Shares Common Stock; and (ii) 17,898 1,000,000 shares of Seed preferred stock, par value $.01 per share (“Preferred SharesStock”). The Sale Shares As of the close of business on December 22, 2009, (x) 2,997,456 shares of Common Stock were issued (and not held in the shares held by the Previous Sellers constitute the entire issued and to be issued share capital treasury of the Company) and outstanding, are the whole of the allotted and issued (y) 362,905 shares of Company Capital Common Stock were issued and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect treasury of the Company and (nor is there any agreement z) no shares of Preferred Stock were issued and outstanding or arrangement for held in the creationtreasury of the Company. Since December 22, constitution2009 through the date hereof, grant no shares of Common Stock or shares of Preferred Stock have been issued other than the issuance of any Relevant Securities in respect shares of Common Stock upon the exercise or settlement of Company Equity Awards. As of the close of business on December 22, 2009, an aggregate of 526,518 shares of Common Stock were subject to and reserved for issuance upon (1) exercise of Company Stock Option Awards or (2) lapse of restrictions of Company Restricted Stock Units or director deferred shares granted under the 2006 Non-Employee Directors’ Stock Plan, and since December 22, 2009 and through the date hereof, no Company Equity Awards have been granted, and no additional shares of Common Stock have become subject to issuance under the Company Stock Plans. Section 3.2(a) of the Company (other than the Sale Shares and the A Pref Shares)).
(b) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a complete close of business on December 22, 2009 each outstanding Company Equity Award granted under the Company Stock Plans and accurate list (i) the name of the holders holder of such Company Capital StockEquity Award, showing (ii) the number of shares of Common Stock subject to such Capital Stockoutstanding Company Equity Award, (iii) the exercise price or base price of such Company Equity Award, (iv) the date on which such Company Equity Award was granted or issued, (v) the applicable vesting schedule, and the class or series extent to which such Company Equity Award is vested and exercisable as of such sharesthe date hereof, held by each such shareholder and, and (vi) with respect to shares other than Company Ordinary SharesStock Options, the number of date on which such Company Stock Option expires. All shares of Common Stock subject to issuance under the Company Ordinary Shares Stock Plans, upon issuance in accordance with the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid and nonassessable.
(if anyb) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted issued and issued outstanding shares of Company Capital Common Stock have been offeredduly authorized, validly issued and sold are fully paid and nonassessable and are not subject to any preemptive rights or rights of first refusal created by statute, the Certificate of Incorporation or Bylaws or any Contract to which the Company in compliance and accordance with, and no transfer (is a party or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunderis bound. Except as set forth on in Section 5.3(c3.2(b) of the Company Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock pursuant to this Agreement and other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure LetterTop-Up Option, (i) there are no allotted subscription, warrant, option, conversion, exchange or issued options, warrants, rights other right (including conversion contingent or preemptive rights and rights of first refusal or similar rightsotherwise) or agreements, orally or in writing, to purchase or otherwise acquire from the Company any shares of capital stock of the Company Capital Stock, is authorized or any securities convertible into or exchangeable for shares of Company Capital Stockoutstanding, (ii) the Company has no obligation, contract or commitment (contingent or otherwise) to issue any subscription, warrant, option, conversion, exchange or other such right or to issue, transfer, deliver, sell or cause to be outstanding, directly or indirectly, any shares of its capital stock or any evidences of indebtedness of the Company and (iii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company its capital stock or any other Person interest therein or to pay any dividend or to make any other distribution in respect thereof. No debt securities of its Capital Stockthe Company are issued and outstanding.
(c) Each outstanding share of capital stock or other equity interest of each Subsidiary of the Company is duly authorized, (iii) validly issued, fully paid, nonassessable and free of preemptive rights and is held, directly or indirectly, by the Company or another Subsidiary of the Company free and clear of all Encumbrances. There are no subscriptions, options, warrants, rights, calls, contracts or other commitments, understandings, restrictions or arrangements relating to the issuance or sale with respect to any shares of capital stock or other ownership interests of any Subsidiary of the Company, including any right of conversion or exchange under any outstanding security, instrument or Contract. No Subsidiary of the Company has any obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of its capital stock or any interest therein. Except for each Subsidiary, the Company does not at own or control, directly or indirectly, any time purchasedshares of capital stock of any other corporation or any interest in any partnership, redeemed joint venture, limited liability company or repaid similar third party business enterprise or Person, nor does the Company have the right to acquire, directly or indirectly, any outstanding capital stock of, or other equity interests in, any other entity or Person. No Subsidiary of the Company Capital Stock or otherwise agreed to reduce owns any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofCompany.
Appears in 2 contracts
Sources: Merger Agreement (Crane Co /De/), Merger Agreement (Merrimac Industries Inc)
Capitalization. (a) The whole authorized capital stock of the allotted Company consists of 40,000,000 Shares, par value $0.01 per share. As of December 1, 2016 (the “Company Capitalization Date”), (i) 17,568,445 Shares were issued and issued outstanding, including 355,104 Restricted Shares, (ii) 1,129,984 Shares were reserved and available for issuance pursuant to the Company Capital Stock Plans (of which 492,500 Shares were subject to outstanding Company Options) and 696,097 Shares were reserved and available for issuance pursuant to the ESPP (with 407 participants in the ESPP as of the Relevant Time consists Company Capitalization Date and an aggregate of (i)64,244 shares $169,780.91 committed pursuant to outstanding rights under the ESPP as of the Company Ordinary Shares Capitalization Date) and (iiiii) 17,898 no preferred shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company’s capital stock were issued and outstanding. All the outstanding Shares are duly authorized, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect nonassessable and free of any Sale Share or share held by any Previous Sellerpreemptive rights. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect Section 3.2(a) of the Company (nor is there any agreement or arrangement for the creationDisclosure Schedule contains a correct and complete list, constitution, grant or issuance of any Relevant Securities in respect as of the Company (other than Capitalization Date, of all outstanding Company Options and Restricted Shares, including, in each case, the Sale name of the Company Stock Plan under which such Company Options or Restricted Shares were granted, the name of the holder, and the A Pref Shares))exercise price of such Company Options.
(b) Except as set forth in Section 5.3(b3.2(a) of the Disclosure Letter sets forth above, as of the Relevant Time a complete and accurate list date of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares this Agreement (if anyi) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of does not have any shares of capital stock issued, reserved for issuance or outstanding other than the Shares that were outstanding on the Company Capital Stock has been made at any time Capitalization Date or that have become outstanding after the Company Capitalization Date but were reserved for issuance as set forth in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned Section 3.2(a) above as of the Relevant Time Company Capitalization Date, and (ii) there are no outstanding subscriptions, options, shares of restricted stock, restricted stock units, “phantom” stock rights, performance units, warrants, puts, calls, exchangeable or convertible securities issued or granted by each record holder listed on Section 5.3(b) Company or any of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder Company Subsidiaries or any Contracts, rights, agreements between the holder thereof and or commitments to which the Company and under applicable or any of the Company Subsidiaries is a party or otherwise obligating the Company or any of the Company Subsidiaries to (A) issue, transfer or sell any Shares or other equity interests of the Company or any Company Subsidiary or securities Lawsconvertible into or exchangeable for such shares or equity interests (in each case other than to the Company or a wholly owned Company Subsidiary), (B) issue, grant, extend or enter into any such subscription, option, warrant, put, call, exchangeable or convertible securities or such Contract, right, agreement or commitment, (C) redeem or otherwise acquire any Shares or other equity interests of the Company or any Company Subsidiary, or (D) make any payment to any Person the value of which is derived from or calculated based on the value of the Shares or other equity interests of the Company or any Company Subsidiary. Since the Company Capitalization Date until the date of this Agreement, the Company has not granted any Company Options, Restricted Shares or other equity or equity-based award to any of the directors, employees or independent contractors of the Company or any Company Subsidiaries.
(c) Section 5.3(c) All Company Options have been granted having a per share exercise price at least equal to the fair market value of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, on the date of grant, and have not otherwise been subject to a “modification” or “extension” within the vesting schedule (including any acceleration provisions with respect thereto). meaning of Section 5.3(c) 409A of the Disclosure Letter sets forth, as of Code and the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares Treasury Regulations thereunder. All grants of Company Ordinary Shares Options were validly issued thereunder, and properly approved by the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(cBoard (or compensation committee thereof) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance accordance with all applicable Laws and all terms and conditions of the applicable Company Share Stock Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grantapplicable Laws.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there There are no allotted or issued optionsbonds, warrantsdebentures, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, notes or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value Indebtedness of the Company or any part thereofCompany Subsidiary having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of Shares may vote. As of the date of this Agreement, the Company and the Company Subsidiaries have no outstanding indebtedness for borrowed money (and do not guarantee the outstanding Indebtedness for borrowed money of any other Person) other than indebtedness for borrowed money between the Company and any wholly owned Company Subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Vascular Solutions Inc), Merger Agreement (Teleflex Inc)
Capitalization. (a) The whole authorized Capital Stock of the allotted Company consists of 450,100,000 shares of Company Common Stock and 50,000,000 shares of Company Preferred Stock. As of the date hereof, (i) 151,472,853 shares of Company Common Stock are issued and outstanding, including 10,765,688 Company Restricted Shares, all of which have been duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, other than as disclosed in Section 5.02 of the Company Disclosure Schedule, (ii) 33,367,187 shares of Company Preferred Stock are issued and outstanding, all of which have been duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, and (iii) 6,794,510 shares of Company Common Stock are reserved for issuance upon vesting and settlement of outstanding Company Plans (in addition to Company Restricted Shares outstanding). The outstanding shares of Company Common Stock, the Company Preferred Stock, the Company Restricted Shares and the Company Plans have been issued in compliance with all applicable securities Laws. Since the date hereof, except as permitted by this Agreement or as disclosed in Section 5.02(a) of the Company Disclosure Schedule, (x) no shares of Capital Stock of the Company have been issued, and (y) no options, warrants or securities convertible into, or commitments with respect to the issuance of, shares of Capital Stock of the Company have been issued, granted or made. Section 5.02(a) of the Company Disclosure Schedule sets forth a true, correct and complete list of the holders of record of Company Common Stock and Company Preferred Stock as of the Relevant Time consists of (i)64,244 shares of Company Ordinary Shares and (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))date hereof.
(b) Section 5.3(b5.02(b) of the Company Disclosure Letter Schedule sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share PlansStock Plans and all holders of Company Restricted Shares, indicating for with respect to each Company Share Plan the number of shares of Company Ordinary Shares issued thereunderRestricted Share, the number of shares of Company Ordinary Shares Common Stock subject to outstanding options thereunder such Company Restricted Shares, the date of grant, settlement terms, vesting period and the number expiration date thereof. The Company has delivered or made available to Yuma accurate and complete copies of all Company Stock Plans, the standard forms of the Company Restricted Share Agreement evidencing Company Restricted Shares, and any Company Restricted Share Agreements evidencing a Company Restricted Share that deviates in any material manner from the Company’s standard forms of the Company Restricted Share Agreement.
(c) Except for the shares of the Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of Preferred Stock and the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan Stockholder Agreement, there are no outstanding subscriptions, options, calls, contracts, commitments, understandings, restrictions, arrangements, rights or warrants, including any right of conversion or exchange under any outstanding security, instrument or other agreement and (ii) has an exercise price per share also including any rights plan or other anti-takeover agreement, obligating any DPAC Company to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of the Capital Stock of any DPAC Company Ordinary Share equal or obligating any DPAC Company to grant, extend or greater than enter into any such agreement or commitment. There are no outstanding stock appreciation rights or similar derivative securities or rights of any DPAC Company. Except for the fair market value Company Stockholder Agreement, there are no voting trusts, irrevocable proxies or other agreements or understandings to which any DPAC Company is a party or is bound with respect to the voting of a share any shares of Company Ordinary Share on Capital Stock of the date of such grantCompany.
(d) Except All of the issued and outstanding shares of Capital Stock (or equivalent equity interests of entities other than corporations) of each of the Company’s Subsidiaries are owned, directly or indirectly, by the Company free and clear of any liens, other than statutory liens for Taxes not yet due and payable, such other restrictions as set forth may exist under applicable securities Law, and liens in this favor of the Company’s lenders as listed on Section 5.3 or in Section 5.3(d5.02(d) of the Company Disclosure LetterSchedule, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any all such shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest inownership interests have been duly authorized, the Company or any other Person or to pay any dividend or to make any other distribution in respect validly issued and are fully paid and non-assessable and free of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation preemptive rights, phantom stock awards or other rights that are linked in any way with no personal liability attaching to the price of the Company Capital Stock or the value of the Company or any part ownership thereof.
Appears in 2 contracts
Sources: Merger Agreement (Yuma Energy, Inc.), Agreement and Plan of Merger and Reorganization (Yuma Energy, Inc.)
Capitalization. (a) The whole As of the allotted and issued Company Capital Stock as date hereof, the authorized capital stock of the Relevant Time Company consists of (i)64,244 10,000,000 shares of Company Ordinary Shares Common Stock and 5,000,000 shares of Company Preferred Stock. As of the date hereof, (i) 3,827,658 shares of Company Common Stock are issued and outstanding (excluding treasury stock), (ii) 17,898 158,151 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire Company Common Stock are issued and to be issued share capital held in the treasury of the Company, and (iii) there are the whole of the allotted and issued no shares of Company Capital Preferred Stock issued and outstanding. From April 30, 2014 through the date hereof, no additional shares of capital stock have been issued (except for shares of Company Common Stock and have been options therefore issued pursuant to Company Equity Plans). As of the date of this Agreement, 294,823 shares of Company Common Stock are reserved for issuance pursuant to the Company Equity Plans of which 287,537 shares of Company Common Stock are issuable pursuant to outstanding Company Stock Options and 7,286 shares are subject to Restricted Stock Awards. All the outstanding shares of the Company’s capital stock are duly authorized and authorized, validly issued, fully paid, and are fully paid up and no sum is outstanding non-assessable. Except as disclosed in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect Section 2.2(a) of the Company Disclosure Letter, as of the date hereof, there are no existing (nor is there any agreement i) options, warrants, calls, subscriptions or arrangement for the creationother rights, constitutionconvertible securities, grant agreements or issuance commitments of any Relevant Securities in respect character obligating the Company or any of its Subsidiaries to issue, transfer or sell any shares of capital stock or other equity interest in, the Company or any of its Subsidiaries or securities convertible into or exchangeable for such shares or equity interests, (ii) contractual obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any capital stock of the Company or any of its Subsidiaries or (other than iii) voting trusts or similar agreements to which the Sale Shares and Company is a party with respect to the A Pref Shares)).
(b) voting of the capital stock of the Company. Section 5.3(b2.2(a) of the Company Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share OptionsStock Options and Restricted Stock Awards, indicatingindicating (i) the holder thereof, with respect to each Company Share Option, the Company Share Plan under which it was granted, (ii) the number of shares of Company Ordinary Shares Common Stock subject to such each Company Share OptionStock Option and each Restricted Stock Award, and (iii) the exercise price, expiration date and whether the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating Stock Option is an incentive stock option for each Company Share Plan Stock Option. All Company Stock Options and Restricted Stock Awards have been documented with the number Company’s standard form(s) of shares option agreement or restricted stock award agreement under the Company Equity Plans without material deviation or amendment, modification, or supplement. Complete and correct copies of the Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder Equity Plans and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(cstandard form(s) of option agreement and restricted stock award agreement under the Disclosure Letter, there is no allotted or issued Company Share Option that has not Equity Plans have been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal made available to or greater than the fair market value of a share of Company Ordinary Share on the date of such grantParent.
(db) Except as set forth in this Section 5.3 All of the outstanding shares of capital stock (or in Section 5.3(dequivalent equity interests of entities other than corporations) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any each of the Company Capital Stock Company’s Subsidiaries are owned of record and beneficially, directly or otherwise agreed to reduce indirectly, by the Company, free and clear of any class of its issued share capital liens, charges, encumbrances, adverse rights or carried out any transaction having the effect of a reduction of capital, claims and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofsecurity interests.
Appears in 2 contracts
Sources: Merger Agreement (Elecsys Corp), Merger Agreement (Lindsay Corp)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 shares i) 250,000,000 Shares, of Company Ordinary which, as of September 8, 2014 (the “Measurement Date”), 66,536,149 Shares were issued and outstanding, and (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued 50,000,000 shares of Company preferred stock, par value $0.001 per share (together with the Shares, the “Company Capital Stock and have been duly authorized and validly issuedStock”), and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellerswhich, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares)).
(b) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a complete Measurement Date, no shares were issued and accurate list outstanding. As of the holders Measurement Date, no Shares were held in the Company’s treasury. As of the Measurement Date, 3,525,415 Shares were reserved for issuance under the Company Capital Stock, showing the number of shares of such Capital StockAcquisition Corporation 2012 Equity Stock Plan, and up to 5,000,000 Shares were reserved for issuance under the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasuryTaminco Corporation 2013 Long Term Incentive Plan. All of the allotted issued and issued outstanding shares of Company Capital Stock have been offered, duly authorized and validly issued and sold by are fully paid, nonassessable and free of preemptive rights. The Company has provided Parent with a list of each Company Stock Option outstanding and unexercised as of the date hereof pursuant to the Company in compliance and accordance withStock Plans, which list specifies (A) the name of the holder of such Company Stock Option, (B) the number of Shares subject to such Company Stock Option, (C) the exercise price of such Company Stock Option, and no transfer (D) the date on which such Company Stock Option was granted. Except pursuant to this Agreement, the Company Stock Plans or purported transfer) as set forth in this Section 3.2, as of the Measurement Date, the Company does not have and is not bound by any outstanding subscriptions, options, warrants, calls, commitments or agreements of any character calling for the purchase, issuance or registration of any shares of Company Capital Stock has been made at or any time in breach of, all applicable other equity securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of Company or any securities representing the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, right to purchase or acquire from the Company otherwise receive any shares of Company Capital Stock.
(b) As of the Measurement Date, no bonds, debentures, notes or other indebtedness having the right to vote on any matters on which stockholders of the Company may vote are issued or outstanding as of the date of this Agreement.
(c) All of the issued and outstanding shares of capital stock or other equity ownership interests of each “significant subsidiary” (as such term is defined under Regulation S-X of the SEC) of the Company are owned by the Company, directly or indirectly, free and clear of any liens, pledges, mortgages, claims, charges and security interests and similar encumbrances (“Liens”), and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights. No such significant subsidiary has or is bound by any outstanding subscriptions, options, warrants, calls, commitments or agreements of any character calling for the purchase or issuance of any shares of capital stock or any other equity security of such subsidiary or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) representing the Company has no obligation (contingent or otherwise) right to purchase, redeem purchase or otherwise acquire receive any shares of Capital Stock, or other equity or voting interest in, the Company capital stock or any other Person or to pay any dividend or to make any other distribution in respect equity security of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofsuch subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Eastman Chemical Co), Agreement and Plan of Merger (TAMINCO Corp)
Capitalization. (a) The whole of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 shares of Company Ordinary Shares and (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued authorized share capital of the Company consists of 50,000,000 Company Ordinary Shares. As of the close of business on October 20, 2006, there were outstanding (i) 20,559,134 Company Ordinary Shares (of which 382,075 were Company Restricted Shares), (ii) no shares of preferred stock of the Company, are (iii) no shares were held by the whole Company as dormant shares (Menayot Redumot), and (iv) stock options to purchase an aggregate of 3,437,437 Company Ordinary Shares. All outstanding Company Ordinary Shares have been, and all Company Ordinary Shares that may be issued pursuant to the allotted and Company Option Plans will be, when issued shares of Company Capital Stock and have been in accordance with the respective terms thereof, duly authorized and validly issuedissued and are, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares or, in the case of shares that may be issued pursuant to the Company held by Option Plans, will be when issued in accordance with the Previous Sellersrespective terms thereof, no Relevant Securities exist in respect fully paid. No Subsidiary of the Company (nor is there owns any agreement or arrangement for the creation, constitution, grant or issuance shares of any Relevant Securities in respect capital stock of the Company. The Company (other than the Sale Shares has furnished to Parent a true and the A Pref Shares)).
(b) Section 5.3(b) of the Disclosure Letter sets forth complete list, as of the Relevant Time a complete and accurate list close of the holders of Company Capital Stockbusiness on October 20, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear 2006 of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, including with respect to each Company Share Optionsuch option, the Company Share Plan under which it was granted, name of the number of shares of Company Ordinary Shares subject to such Company Share Optionholder, the exercise price, the grant date of grant, and the vesting schedule (including any acceleration provisions schedule, and with respect theretoto all such Company Options granted to Israeli taxpayers, whether each such option was granted under any of the following sections of the Israeli Income Tax Ordinance: Section 3(i); Section 102 (prior to January 1, 2003); or Section 102 (on or after January 1, 2003, and in such event pursuant to which subsection of Section 102). Section 5.3(c) The Company is not a party to any voting agreement with respect to the voting of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(db) Except as set forth in this Section 5.3 4.05 and for changes since October 20, 2006 resulting from the exercise of Company Options outstanding on such date or in Section 5.3(d) the issuance of the Disclosure LetterCompany Options or Company Ordinary Shares as permitted by this Agreement, there are no outstanding (i) there are no allotted shares of capital stock of, or issued optionsother voting securities or ownership interests in, warrantsthe Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock of, or other voting securities or ownership interests in, the Company, or (iii) options or other rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company, or other obligation of the Company to issue, any shares of Company Capital Stockcapital stock of, or other voting securities or ownership interests in, or any securities convertible into or exchangeable for shares for, capital stock of, or other voting securities or ownership interests in, the Company. There are no outstanding obligations of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stockthe items listed in clauses (i), or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (ii) and (iii) above, except from former employees, directors and consultants in accordance with currently effective agreements providing for the Company has not at repurchase of shares in connection with any time purchased, redeemed termination of service to it or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofSubsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Powerdsine LTD), Merger Agreement (Microsemi Corp)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 i) 500,000,000 shares of Company Ordinary Shares Common Stock, of which, as of January 25, 2012 (the “Measurement Date”), 122,250,050 shares were issued and outstanding, and (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued 100,000,000 shares of Company Capital Stock and preferred stock, par value $0.01 per share, of which 30,000 shares have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in designated as Series A Participating Preferred Stock (together with the Company held by Common Stock, the Previous Sellers“Company Capital Stock”), no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creationwhich, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares)).
(b) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a complete Measurement Date, no shares were issued and accurate list outstanding. As of the holders of Company Capital StockMeasurement Date, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of 1,247,183 shares of Company Ordinary Shares (if any) into which such shares are convertibleCommon Stock were held in the Company’s treasury. The Company holds no As of the Measurement Date, 10,840,000 shares of Company Capital Common Stock in its treasurywere reserved for issuance under the Company Equity Incentive Plan, including shares that would be issued upon the exercise of Company Stock Options and Company RSUs, and 4,481,250 shares of Company Common Stock were reserved for issuance upon exercise of issued and outstanding Company Warrants. All of the allotted issued and issued outstanding shares of Company Capital Stock have been offered, duly authorized and validly issued and sold by are fully paid, nonassessable and free of preemptive rights. The Company has provided Parent with a list of (i) each Company Stock Option outstanding and unexercised as of the date hereof pursuant to the Company in compliance and accordance withEquity Incentive Plan, which list specifies (A) the name of the holder of such Company Stock Option, (B) the number of shares of Company Common Stock subject to such Company Stock Option, (C) the exercise price of such Company Stock Option, (D) the date on which such Company Stock Option was granted, (E) the applicable vesting schedule, and no transfer (F) the date on which such Company Stock Option expires, (ii) the aggregate number of all shares of Company Restricted Stock which list specifies (A) the name of the holder of such shares of Company Restricted Stock, (B) the number of shares of Company Restricted Stock, (C) the date on which such shares of Company Restricted Stock were granted, and (D) the applicable vesting schedule, (iii) the aggregate number of all Company Performance Shares which list specifies (A) the name of the holder of such Company Performance Shares, (B) the number of Company Performance Shares, (C) the date on which such Company Performance Shares were granted, and (D) the applicable vesting schedule, and (iv) the aggregate number of Company RSUs, which list specifies (A) the name of the holder of such Company RSUs, (B) the number of Company RSUs, (C) the date on which such Company RSUs were granted, and (D) the applicable vesting schedule, in each case of (i), (ii), (iii) and (iv), outstanding as of the Measurement Date; since the Measurement Date through the date of this Agreement, the Company has not issued or purported transfer) awarded any options, restricted stock, restricted stock units under the Company Equity Incentive Plan. Except pursuant to this Agreement, the Company Equity Incentive Plan or as set forth in this Section 3.2, as of the Measurement Date, the Company does not have and is not bound by any outstanding subscriptions, options, warrants, calls, commitments or agreements of any character calling for the purchase, issuance or registration of any shares of Company Capital Stock has been made at or any time in breach of, all applicable other equity securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of Company or any securities representing the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, right to purchase or acquire from the Company otherwise receive any shares of Company Capital Stock.
(b) As of the Measurement Date, no bonds, debentures, notes or other indebtedness having the right to vote on any matters on which stockholders of the Company may vote are issued or outstanding as of the date of this Agreement.
(c) All of the issued and outstanding shares of capital stock or other equity ownership interests of each “significant subsidiary” (as such term is defined under Regulation S-X of the SEC) of the Company are owned by the Company, directly or indirectly, free and clear of any material liens, pledges, charges and security interests and similar encumbrances (“Liens”), and all of such shares or equity ownership interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights. No such significant subsidiary has or is bound by any outstanding subscriptions, options, warrants, calls, commitments or agreements of any character calling for the purchase or issuance of any shares of capital stock or any other equity security of such subsidiary or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) representing the Company has no obligation (contingent or otherwise) right to purchase, redeem purchase or otherwise acquire receive any shares of Capital Stock, or other equity or voting interest in, the Company capital stock or any other Person or to pay any dividend or to make any other distribution in respect equity security of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofsuch subsidiary.
Appears in 2 contracts
Sources: Merger Agreement (Eastman Chemical Co), Merger Agreement (Solutia Inc)
Capitalization. (a) The whole of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 is authorized to issue 70,000,000 shares of Company Ordinary Shares and (ii) 17,898 Common Stock, of which 55,035,739 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire were issued and to be issued share capital outstanding as of May 25, 2007. All of the Company, are the whole of the allotted issued and issued outstanding shares of Company Capital Common Stock and have been are duly authorized and authorized, validly issued, fully paid, nonassessable and are fully paid up and no sum is outstanding in respect free of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))pre emptive rights.
(b) The Company has reserved 8,250,000 shares of Company Common Stock for issuance pursuant to all of the Company Options. Company Options to purchase 5,980,584 shares of Company Common Stock were outstanding as of May 25, 2007. Section 5.3(b3.3(b) of the Company Disclosure Letter sets forth Schedule includes a true and complete list of all Company Options outstanding as of May 25, 2007, which schedule shows the Relevant Time a underlying shares that have vested, the applicable vesting and acceleration provisions, the expiration date, and whether any option is an incentive stock option. True and complete and accurate list copies of all instruments (or the forms of such instruments) referred to in this section have been furnished to Parent. Except as set forth in Section 3.3(b) of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary SharesDisclosure Schedule, the number Company is not obligated to accelerate the vesting of shares any Company Options as a result of Company Ordinary Shares (if any) into which such shares are convertiblethe transactions contemplated hereby. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer Option Plan (or purported transferincluding all amendments) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and duly approved by the Company’s articles of associationstockholders. To the Company’s knowledge, the shares of Company Capital Stock owned Except as of the Relevant Time by each record holder listed on set forth in Section 5.3(b3.3(b) of the Company Disclosure Letter are owned free and clear Schedule, all Company Options were granted with an exercise price not less than fair market value of all Liens except for restrictions Company Common Stock on transfer under customary shareholder agreements between the holder thereof and date of the Company and under applicable securities Lawsgrant.
(c) The Company has reserved 849,148 shares of Company Common Stock for issuance pursuant to all of the Company Warrants. Company Warrants to purchase 849,148 shares of Company Common Stock were outstanding as of May 25, 2007. Section 5.3(c3.3(c) of the Company Disclosure Letter sets forth as of the Relevant Time Schedule includes a true and complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share PlansWarrants outstanding as of May 25, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder2007, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of which schedule shows the applicable Company Share Plan expiration date. True and complete copies of all instruments (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date forms of such grantinstruments) referred to in this section have been furnished to Parent.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d3.3(d) of the Company Disclosure LetterSchedule, the Company does not have an employee stock purchase plan or similar arrangement and has never issued performance units or restricted shares under the Company Stock Option Plan or otherwise.
(e) The Company is authorized to issue 20,000,000 shares of Preferred Stock (“Company Preferred Stock”), of which 2,250,000 shares are issued and outstanding shares of Company Convertible Preferred Stock and 500,000 shares have been designated as Series A Junior Participating Preferred Stock, all of which were reserved for issuance upon exercise of preferred stock purchase rights (the “Company Rights”) issuable pursuant to the Rights Agreement, dated as of November 17, 2004, between the Company and American Stock Transfer & Trust Company, as rights agent (the “Company Rights Agreement”).
(f) Except for (i) shares of Company Common Stock indicated as issued and outstanding on May 25, 2007 in Section 3.3(a), (ii) shares issued after such date upon (A) the exercise of outstanding Company Options listed in Section 3.3(b) of the Company Disclosure Schedule, or (B) the exercise of outstanding Company Warrants listed in Section 3.3(c) of the Company Disclosure Schedule, and (iii) shares of Company Preferred Stock indicated as issued and outstanding on May 25, 2007 in Section 3.3(e), there are no allotted or issued optionsnot as of the date hereof, warrantsand at the Effective Time there will not be, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares Stock issued and outstanding.
(g) The Company’s authorized capital stock consists solely of Company Capital Stock, (ii) the Company has no obligation (contingent Common Stock described in Section 3.3(a) and the Company Preferred Stock described in Section 3.3(e). There are not as of the date hereof, and at the Effective Time there will not be, authorized or otherwise) to purchaseoutstanding any subscriptions, redeem options, conversion or otherwise acquire any shares of Capital Stockexchange rights, warrants, repurchase or redemption agreements, or other equity agreements, claims or voting interest in, commitments of any nature whatsoever obligating the Company to issue, transfer, deliver or any other Person sell, or cause to pay any dividend be issued, transferred, delivered, sold, repurchased or to make any other distribution in respect of its Capital Stockredeemed, (iii) the Company has not at any time purchased, redeemed or repaid any additional shares of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value securities of the Company or obligating the Company to grant, extend or enter into any part thereofsuch agreement, other than Company Options listed in Section 3.3(b) of the Company Disclosure Schedule and Company Warrants listed in Section 3.3(c) of the Company Disclosure Schedule. To the knowledge of the Company, there are no stockholder agreements, voting trusts, proxies or other agreements, instruments or understandings with respect to the voting of the capital stock of the Company. For purposes of this Agreement, “knowledge of the Company” and words of similar import shall mean the actual knowledge, after reasonable inquiry of the employees of the Company who are primarily responsible for the matter(s) in question, of the individuals listed in Section 3.3(g) of the Company Disclosure Schedule.
(h) The Company has no outstanding bonds, debentures, notes or other indebtedness that have the right to vote on any matters on which stockholders may vote.
Appears in 2 contracts
Sources: Merger Agreement (Genzyme Corp), Merger Agreement (Bioenvision Inc)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 i) 50,000,000 shares of Company Ordinary Shares Common Stock, par value $0.0025 per share, and (ii) 17,898 1,000,000 shares of Seed preferred stock, par value $0.01 per share, all of which are designated Series A Junior Participating Preferred SharesStock. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital As of the CompanyAugust 31, are the whole of the allotted and issued 2007, (A) 16,048,654 shares of Company Capital Common Stock were issued and have been duly authorized outstanding, (B) no shares of preferred stock were issued and outstanding and (C) those shares set forth in Section 3.3(a) of the Company Disclosure Letter were reserved for issuance and issuable upon or otherwise deliverable under the Company 2006 Stock Incentive Plan, the Company 2004 Equity Incentive Plan, the Company 2001 Employee Stock Purchase Plan, the Company 2003 Director Equity Plan, the Company 2000 Director Stock Option Plan, the Company 1994 Equity Incentive Plan and the 1996 Sinper Stock Option Plan (collectively, the “Company Stock Plans”) in connection with the exercise of outstanding Company Options as of such date. All of the issued and outstanding shares of Company Common Stock are, and all shares of Company Common Stock which may be issued pursuant to the Company Stock Plans, when issued in accordance with the terms of those plans, will be, validly issued, and are fully paid up and non-assessable. Between August 31, 2007 and the date of this Agreement, no sum is outstanding in respect shares of any Sale Share or share held by any Previous SellerCompany Common Stock have been issued, other than upon exercise of Company Options. Save Except for the Sale Shares Company Common Stock and the shares in the Company held by the Previous SellersOptions, there are no Relevant Securities exist in respect outstanding bonds, debentures, notes or other indebtedness or other securities of the Company or any Subsidiary having the right to vote (nor is there or convertible into, exercisable, or exchangeable for, securities having the right to vote) on any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect matters on which stockholders of the Company (may vote, including the Merger. As of the date hereof, except for Company Options outstanding on the date hereof under the Company Stock Plans, there are no existing options, warrants, calls, subscriptions, convertible securities or other than securities, agreements, commitments, or obligations which would require the Sale Shares and Company or any of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or sold shares of common stock, preferred stock or any other equity securities, or securities convertible into or exchangeable or exercisable for shares of common stock, preferred stock or any other equity securities of the A Pref Shares))Company or any of its Subsidiaries.
(b) Section 5.3(b3.3(b) of the Company Disclosure Letter sets forth forth, as of August 31, 2007, (x) a complete list of the Relevant Time number of shares of Company Common Stock subject to Company Options, the dates of grant and (to the extent applicable) the exercise prices thereof and (y) a complete and accurate list of the holders names of each holder of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary SharesOptions, the number of shares of Company Ordinary Shares Common Stock subject to Company Options, the dates of grant and (if anyto the extent applicable) into which such shares are convertiblethe exercise prices thereof. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (is not obligated to purchase or purported transfer) of redeem or otherwise acquire any shares of Company Capital Common Stock has been made at or the capital stock of any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Lawsits Subsidiaries.
(c) Section 5.3(c) There are no stockholders’ 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 registration of any shares of capital stock of the Disclosure Letter sets forth as Company or any preemptive rights with respect thereto. As of the Relevant Time date hereof, the record and, to the knowledge of the Company, beneficial ownership of and voting power in respect of, the capital stock of the Company with respect to the signatories to the Tender and Voting Agreements set forth in the Tender and Voting Agreements, is accurate in all material respects.
(d) Other than exceptions that have not had and are not reasonably likely to result in, individually or in the aggregate, a complete and accurate list of all holders of outstanding Company Share Options, indicatingMaterial Adverse Effect, with respect to the Company Options, (i) each Company Share OptionOption intended to qualify as an “incentive stock option” under Section 422 of the Code so qualifies, (ii) each grant of a Company Option was duly authorized no later than the date on which the grant of such Company Option was by its terms to be effective (the “Grant Date”) by all necessary corporate action, including, as applicable, approval by the Company Share Plan under which it was grantedBoard (or a duly constituted and authorized committee thereof), or a duly authorized delegate thereof, and any required stockholder approval by the necessary number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grantvotes or written consents, and the vesting schedule award agreement governing such grant (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (iif any) was granted duly executed and delivered by each party thereto no later than the Grant Date, (iii) each such grant was made in compliance accordance with all applicable Laws and all the terms and conditions of the applicable Company Share Plan Stock Plan, the Exchange Act and all other Applicable Law, including the listing requirements and rules of any relevant exchange, (iiiv) has an the per share exercise price per share of each Company Ordinary Share equal to or greater Option was not less than the fair market value of a share of Company Ordinary Share Common Stock on the date of applicable Grant Date and (v) each such grant.
grant was properly accounted for in all material respects in accordance with GAAP in the financial statements (d) Except as set forth in this Section 5.3 or in Section 5.3(dincluding the related notes) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights Company and rights of first refusal or similar rights) or agreements, orally or disclosed in writing, to purchase or acquire from the Company any shares of SEC Reports in accordance with the Exchange Act and all other Applicable Laws. The Company Capital Stockhas an option grant policy that has been in effect since October 24, or any securities convertible into or exchangeable for shares of Company Capital Stock2006, (ii) and the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution complied in respect of all material respects with such policy since its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofadoption.
Appears in 2 contracts
Sources: Merger Agreement (Cognos Inc), Merger Agreement (Applix Inc /Ma/)
Capitalization. (a) The whole authorized capital stock of the allotted Company consists of 25,000,000 Company Shares, and 5,000,000 shares of Company preferred stock, no par value. As of the date hereof, (i) 4,134,682 Company Shares are issued and outstanding, all of which are validly issued and fully paid, including 401,163.4 Company Capital Stock Shares held by the ESOP Trust, nonassessable and free of preemptive rights (and were not issued in violation of preemptive rights), (ii) no Company Shares are held in the treasury of the Company or by its Subsidiaries, (iii) 150,413 Company Shares are issuable (and such number is reserved for issuance) upon exercise of the Company Options outstanding as of the Relevant Time consists of date hereof (i)64,244 the “Company Option Shares”) and (iv) no shares of Company Ordinary Shares preferred stock have been issued or are outstanding. All of the issued and (ii) 17,898 outstanding shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued shares of Company Capital Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share stock or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect other Equity Interests of the Company have been issued in compliance with applicable federal and state securities laws. The authorized capital stock of the Bank consists of 500 shares of common stock. As of the date hereof, 50 shares of common stock of the Bank are issued and outstanding, all of which are validly issued and fully paid, nonassessable, and free of preemptive rights (nor is there any agreement and were not issued in violation of preemptive rights). There are no other Equity Interests in the Bank outstanding. All of the issued and outstanding shares of capital stock or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect other Equity Interests of the Company (other than the Sale Shares and the A Pref Shares))Bank have been issued in compliance with applicable federal and state securities Laws.
(b) Section 5.3(bExcept for the Company Options and arrangements and agreements set forth on Schedule 4.3(b) of the Company Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure LetterSchedule, there is are no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions options, warrants or other rights, agreements, arrangements or commitments of any character to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound relating to the issued or unissued capital stock or other Equity Interests of the applicable Company Share Plan and or any of its Subsidiaries, (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stocksuch capital stock or other Equity Interests, (ii) or obligating the Company has no obligation (contingent or otherwise) any of its Subsidiaries to purchase, redeem issue or otherwise acquire sell any shares of Capital Stockits capital stock or other Equity Interests, or (iii) securities convertible into or exchangeable for such capital stock of, or other equity or voting interest Equity Interests in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Subsidiaries. The Company has not provided Acquiror with a true and complete list of the prices at any time purchasedPALOALTO 66463 v1 (2K) -19- which outstanding Company Options are exercisable, redeemed the number of Company Option Shares outstanding at each such price and the date of grant, expiration date and type (qualified or repaid any non-qualified under Section 422 of the Code) of each such Company Option. All of the Company Capital Stock or otherwise agreed Option Shares, upon their issuance on the terms and conditions specified in the instruments pursuant to reduce any class which they are issuable, will be duly authorized, validly issued, fully paid, nonassessable and free of its preemptive rights and will not be issued share capital or carried out any transaction having the effect in violation of a reduction of capitalpreemptive rights.
(c) Except for this Agreement, and (ivexcept as set forth on Schedule 4.3(c) of the Company Disclosure Schedule, there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value outstanding contractual obligations of the Company or any part thereofof its Subsidiaries (i) restricting the transfer of, (ii) affecting the voting rights of, (iii) requiring the repurchase, redemption or disposition of, or containing any right of first refusal with respect to, (iv) requiring the registration for sale of, or (v) granting any preemptive or antidilutive right with respect to, any Company Shares or any capital stock of, or other Equity Interests in, the Company or any of its Subsidiaries. To the knowledge of the Company, other than the Voting Agreements, there are no proxies, voting agreements, voting trusts, rights plans, anti-takeover plans or registration rights agreements with respect to any shares of the capital stock, equity or voting interests in the Company.
(d) The Company does not have outstanding any bonds, debentures, notes or other obligations the holders of which have the right to vote (or that are convertible into or exercisable for securities having the right to vote) with the Company Shareholders on any matter.
Appears in 2 contracts
Sources: Merger Agreement (BWC Financial Corp), Merger Agreement (BWC Financial Corp)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 i) 250,000,000 shares of Company Ordinary Shares Common Stock and (ii) 17,898 5,000,000 shares of Seed Company Preferred SharesStock. The Sale Shares As of March 31, 2015 (the “Capitalization Reference Date”), (A) 56,865,368 shares of Company Common Stock were issued and the outstanding, (B) no shares of Company Preferred Stock were issued and outstanding or held by the Previous Sellers constitute Company as treasury shares and (C) no shares of Company Common Stock were held by the entire Company as treasury shares. All outstanding shares of Company Common Stock were validly issued, fully paid, nonassessable and free of any preemptive rights. Since the Capitalization Reference Date through (and including) the date of this Agreement, the Company has not issued and to be issued share capital of the Company, are the whole of the allotted and issued any shares of Company Capital Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect other than pursuant to Company Restricted Stock Units or the exercise of any Sale Share Company Options or share held by any Previous Seller. Save for the Sale Shares and the shares in pursuant to the Company held ESPP or any 401(k) plans maintained by the Previous Sellers, no Relevant Securities exist in respect Company or any of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))its Subsidiaries.
(b) Section 5.3(b3.4(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time Capitalization Reference Date, a complete and accurate list (i) the aggregate number of all shares of Company Share PlansCommon Stock that are subject to Company Options, indicating for (ii) the aggregate number of shares of Company Common Stock that are subject to Company Restricted Stock Units, (iii) the name or identification number of each Company Share Plan holder, (iv) the number of shares of Company Ordinary Shares issued thereunderCommon Stock subject to each Company Option and Company Restricted Stock Unit, (v) the grant date of each Company Option and Company Restricted Stock Unit and (vi) the exercise price for each Company Option (in the case of clauses, (iii), (iv) and (v), on a holder-by-holder basis). The Company shall provide Parent, within three (3) Business Days prior to the anticipated Closing Date, a complete and correct list, as of such date, of all holders of Company Options and Company Restricted Stock Units, specifying, on a holder-by-holder basis, (i) the name of each holder, (ii) the number of Shares subject to each Company Option and Company Restricted Stock Unit, (iii) the grant date of each Company Option and Company Restricted Stock Unit, (iv) the exercise price for each Company Option, (v) the vesting schedule of each Company Option and Company Restricted Stock Unit, (vi) the settlement schedule of each Company Restricted Stock Unit, (vii) the Company Stock Plan under which each Company Option and Company Restricted Stock Unit was issued and (viii) the expiration date of each Company Option. Since the Capitalization Reference Date through (and including) the date of this Agreement, the Company has not granted any Company Compensatory Awards. Each outstanding Company Compensatory Award was granted subject to the terms of a Company Plan. As of the Capitalization Reference Date, 2,397,441 shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares Common Stock were reserved for future issuance thereunderpursuant to stock awards not yet granted under the Company Plans. Except as set forth All Company Compensatory Awards have been, in all material respects, validly issued and properly approved by the Company Board in accordance with all Applicable Law, and the Company Plans and all Company Compensatory Awards have been, in all material respects, properly accounted for in accordance with GAAP on Section 5.3(c) the consolidated audited financial statements of the Disclosure Letter, there is no allotted Company and its Subsidiaries filed in or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance furnished with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grantSEC Reports.
(dc) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter3.4, there are (i) there are no allotted outstanding shares of capital stock of, or issued other equity or voting interest in, the Company, (ii) no outstanding securities of the Company convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, the Company, (iii) no outstanding options, stock appreciation rights, warrants, restricted stock units, rights (including conversion or preemptive rights and rights of first refusal other commitments or similar rights) or agreements, orally or in writing, agreements to purchase or acquire from the Company, or that obligates the Company to issue, any shares of Company Capital Stockcapital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stockcapital stock of, or other equity or voting interest in, the Company, (iv) no obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other Person similar agreement or commitment (whether payable in equity, cash or otherwise) relating to pay any dividend capital stock of, or to make other equity or voting interest (including any other distribution voting debt) in, the Company (the items in respect of its Capital Stockclauses (i), (ii), (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv), together with the capital stock of the Company, being referred to collectively as “Company Securities”) there are and (v) no allotted, issued other obligations by the Company or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way of its Subsidiaries to make any payments based on the price of the Company Capital Stock or the value of the Company Securities. There are no outstanding Contracts of any kind which obligate the Company or any part thereofof its Subsidiaries to repurchase, redeem or otherwise acquire any Company Securities.
(d) Other than this Agreement or the Voting Agreements, neither the Company nor any of its Subsidiaries is a party to any Contracts restricting the transfer of, relating to the voting of, requiring registration of, or granting any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any securities of the Company.
Appears in 2 contracts
Sources: Merger Agreement (Microchip Technology Inc), Merger Agreement (Micrel Inc)
Capitalization. The authorized capital stock of the Company consists solely of 100,000,000 shares of Common Stock and 25,000,000 shares of preferred stock. As of the close of business on August 30, 2004, (a) The whole 19,650,329 Shares were issued and outstanding, all of the allotted which were duly authorized, validly issued, fully paid and nonassessable and none of which were issued Company Capital Stock as in violation of the Relevant Time consists of any preemptive or similar rights, (i)64,244 b) 432,727 shares of Company Ordinary Shares and (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and Common Stock were held in the shares held by the Previous Sellers constitute the entire issued and to be issued share capital treasury of the Company, are the whole of the allotted and issued (c) no shares of Company Capital Common Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share or share were held by any Previous Seller. Save of the Subsidiaries, (d) no shares of preferred stock were outstanding, (e) 3,850,776 shares of Common Stock were reserved for the Sale Shares future issuance pursuant to stock options granted and the shares in outstanding pursuant to the Company held by Stock Option Plans and (f) 400,498 shares of Common Stock were reserved for future issuance pursuant to the Previous SellersEmployee Stock Purchase Plan (the Employee Stock Purchase Plan, no Relevant Securities exist together with the Company Stock Option Plans, being referred to hereinafter collectively as the "Stock Incentive Plans"). Since August 30, 2004, the Company has not issued any shares of its capital stock, other than any shares of Common Stock issued upon the valid exercise of Company Options in respect accordance with the terms thereof, or granted any stock options. Set forth on Schedule 3.03-1 of the Company (nor Disclosure Schedule is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares)).
(b) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list description of the holders of Company Capital Stockgrant date, showing the vesting schedule, number of shares of such Capital StockCommon Stock available under, strike or exercise price and holder of each outstanding grant of options to acquire shares of Common Stock pursuant to the Company Stock Option Plans and the class Company Stock Option Plan and related program, if applicable, under which such options were granted. Each outstanding grant of options under any of the Company Stock Option Plans is evidenced by a Stock Option Agreement. Parent has been furnished with a true and complete copy of each form of Stock Option Agreement evidencing an outstanding option grant. No outstanding grant of options has been made which varies from such forms. Each election to purchase shares of Common Stock under the Employee Stock Purchase Plan is evidenced by an enrollment form as prescribed by the plan administrator of the Employee Stock Purchase Plan. Except for the options and rights to purchase shares of Common Stock granted under the Stock Incentive Plans as expressly set forth in this Section 3.03 and except as set forth on Schedule 3.03-2 of the Company Disclosure Schedule, there are no outstanding options, warrants or series other rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock of the Company or any Subsidiary (provided that such shares, held by each such shareholder and, representation with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All issued capital stock of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by or any Subsidiary shall be made to the Company's knowledge where neither the Company in compliance and accordance withnor any Subsidiary is party to such option, and no transfer (warrant or purported transferother right, agreement, arrangement or commitment) of or obligating the Company or any Subsidiary to issue or sell any shares of Company Capital Stock has been made at any time in breach capital stock of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Optionor other equity interests in, the Company Share Plan under which it was granted, the number of or any Subsidiary. All shares of Company Ordinary Shares Common Stock subject to such Company Share Optionissuance as aforesaid, upon issuance on the exercise priceterms and conditions specified in the agreements pursuant to which they are issuable, the date of grantwill be duly authorized, validly issued, fully paid and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereundernonassessable. Except as set forth on Section 5.3(c) Schedule 3.03-3 of the Company Disclosure LetterSchedule, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter, (i) there are no allotted or issued options, warrants, rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, contractual or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value obligations of the Company or any part thereofSubsidiary to repurchase, redeem, otherwise acquire or pay any amounts in connection with any Shares or any capital stock of, or any other equity interests in, any Subsidiary. Each outstanding share of capital stock of each Subsidiary is duly authorized, validly issued, fully paid and nonassessable and, except as set forth on Schedule 3.03-4 of the Company Disclosure Schedule, each such share owned by the Company or any Subsidiary is free and clear of all security interests, liens, claims, pledges, options, tag along rights, rights of first refusal, agreements, limitations on the Company's or such other Subsidiary's voting rights, charges and other encumbrances of any nature whatsoever.
Appears in 2 contracts
Sources: Merger Agreement (Computer Access Technology Corp), Merger Agreement (Lecroy Corp)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 i) 100,000,000 shares of Company Ordinary Shares Common Stock and (ii) 17,898 5,000,000 shares of Seed preferred stock, par value $0.01 per share (the “Company Preferred SharesStock”). The Sale Shares rights and privileges of the Company Common Stock and the shares held by Company Preferred Stock are as set forth in the Previous Sellers constitute Company’s Restated Certificate of Incorporation. At the entire close of business on October 30, 2015, (i) 31,844,970 Shares were issued and outstanding, (ii) Company Stock Options to be purchase an aggregate of 4,002,294 Shares were issued share capital and outstanding, (iii) Company RSUs in respect of the Company, are the whole an aggregate of the allotted 1,288,600 Shares were issued and issued outstanding and (iv) no shares of Company Capital Preferred Stock were issued and outstanding. All outstanding shares of capital stock of the Company have been been, and all Shares that may be issued pursuant to any Company Stock Plan will be, when issued in accordance with the respective terms thereof, duly authorized and validly issued and are (or, in the case of shares that have not yet been issued, will be) fully paid, nonassessable and are fully paid up and no sum is outstanding in respect free of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))preemptive rights.
(b) Section 5.3(b4.06(b)(i) of the Company Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter Schedules sets forth, as of the Relevant Time close of business on October 30, 2015, a complete and accurate correct list of (i) all outstanding Company Share PlansStock Options, indicating for each Company Share Plan including the number of shares of Company Ordinary Shares issued thereundersubject to such award, the number name of shares of Company Ordinary Shares subject to outstanding options thereunder the holder, the grant date, the vesting schedule, the expiration date thereof and the number exercise or purchase price per share and (ii) all outstanding Company RSUs, including the name of shares of the holder, the vesting schedule, and the grant date. The Company Ordinary Shares reserved for future issuance thereunder. Except as stock plans set forth on Section 5.3(c4.06(b)(ii) of the Company Disclosure LetterSchedules (the “Company Stock Plans”) are the only plans or programs the Company or any of the Company Subsidiaries maintains under which stock options, there is restricted stock, restricted stock units, stock appreciation rights or other compensatory equity and equity-based awards are outstanding and no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock such awards other than Company Ordinary SharesStock Options and Company RSUs were granted under the Company Stock Plans or otherwise. Each With respect to each grant of Company Share Option Stock Options, (i) each such grant was granted made in compliance accordance with all applicable Laws and all the terms and conditions of the applicable Company Share Stock Plan and Applicable Law (including rules of Nasdaq), (ii) each such grant was properly accounted for in accordance with GAAP and all Applicable Laws in the Company SEC Documents (including financial statements), and (iii) each Company Stock Option has an exercise price per share of Company Ordinary Share Common Stock equal to or greater than the fair market value of a share of the Company Ordinary Share Common Stock on the date of such grant. The Company has Made Available each form of award agreement under the Company Stock Plans, as well as copies of any award agreement, including those which have performance conditions, under the Company Stock Plans that deviates materially from any such form of award agreement.
(dc) Except as set forth in this Section 5.3 or in Section 5.3(d) 4.06, as of the Disclosure Letterdate of this Agreement, there are no outstanding (i) there are no allotted shares of capital stock or issued voting securities of the Company, (ii) securities of the Company or the Company Subsidiaries convertible into or exchangeable for shares of capital stock or voting securities of the Company or any of the Company Subsidiaries, (iii) options, warrants, warrants or other rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, arrangements to purchase or acquire from the Company or any shares of the Company Capital StockSubsidiaries, or other obligations or commitments of the Company or any of the Company Subsidiaries to issue, any capital stock or other voting securities or ownership interests in, or any securities convertible into or exchangeable for capital stock or other voting securities or ownership interests in, the Company or any of the Company Subsidiaries, (iv) restricted shares, restricted stock units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company or any of the Company Subsidiaries (the items in clauses (i)-(iv) being referred to collectively as the “Company Securities”), (v) voting trusts, proxies or other similar agreements or understandings to which the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is bound with respect to the voting of any shares of Company Capital Stock, (ii) capital stock of the Company has or any of the Company Subsidiaries, or (vi) contractual obligations or commitments of any character restricting the transfer of, or requiring the registration for sale of, any shares of capital stock of the Company or any of the Company Subsidiaries. There are no obligation (contingent outstanding obligations or otherwise) commitments of any character of the Company or any of the Company Subsidiaries to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company Securities or any of the capital stock of the Company Subsidiaries (other Person or to pay than withholding for Taxes in the ordinary course for settlements of Company RSUs). No Company Subsidiary owns any dividend or to make any other distribution in respect of its Capital StockCompany Securities.
(d) Since January 1, (iii) 2015, the Company has not at declared or paid any time purchaseddividend, redeemed or repaid declared or made any distribution on, or authorized the creation or issuance of, or issued (other than issuances resulting from the exercise of Company Stock Options, issuances under the Company ESPP, or settlements of Company RSUs), or authorized or effected any split-up or any other recapitalization of, any Company Securities, or directly or indirectly redeemed, purchased or otherwise acquired any Company Securities. Other than the Company Common Stock, there are no outstanding bonds, debentures, notes or other indebtedness or securities of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capitalright to vote (or, and (ivother than the outstanding Company Stock Options, convertible into, or exchangeable for, securities having the right to vote) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in on any way to the price matters on which stockholders of the Company Capital Stock or the value of the Company or any part thereofmay vote.
Appears in 2 contracts
Sources: Merger Agreement (Constant Contact, Inc.), Merger Agreement (Endurance International Group Holdings, Inc.)
Capitalization. (a) The whole As of the allotted and issued date hereof, the authorized capital stock of Company Capital Stock as of the Relevant Time consists of (i)64,244 i) 7,500,000 shares of common stock, $0.01 par value per share ("Company Ordinary Shares Common Stock"), of which 3,450,825 shares are issued and outstanding and 952,978 shares are held as treasury shares; and (ii) 17,898 1,000,000 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire preferred stock, $0.01 par value per share, none of which are issued and outstanding, but 7,500 shares of which are reserved for issuance pursuant to be issued share capital the terms and conditions of the CompanyRights Agreement dated July 28, are 1997, between Company and ▇▇▇▇▇▇ Trust and Savings Bank, as Rights Agent (the whole "Rights Agreement"). All of the allotted issued and issued outstanding shares of Company Capital Common Stock and have been duly and validly authorized and validly issued, and are fully paid up and no sum is non-assessable. None of the outstanding shares of Company Common Stock has been issued in respect violation of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect preemptive rights of the Company (nor is there any agreement current or arrangement for the creation, constitution, grant or issuance past stockholders of any Relevant Securities in respect Company. All of the outstanding shares of Company (other than the Sale Shares Common Stock have been issued in compliance with all federal and the A Pref Shares))state securities laws.
(b) Section 5.3(b) As of the date hereof, Company has reserved 30,903 shares of Company Common Stock for issuance under various stock option and stock incentive plans disclosed in Disclosure Schedule 4.05 of the Disclosure Letter sets forth Schedule of Company for the benefit of the employees, directors, former employees and former directors of Company (collectively, the "Company Stock Option Plan") pursuant to which options covering 551,952 shares of Company Common Stock (each, a "Company Stock Option") are outstanding and unexercised as of the Relevant Time a complete and accurate list date hereof. As of the holders of Company Capital Stockdate hereof, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of 1,107 shares of Company Ordinary Shares (if any) into which such shares Common Stock are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company outstanding under Company's Bank Incentive Plan disclosed in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) Disclosure Schedule 4.05 of the Disclosure Letter are owned free and clear Schedule of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunderCompany. Except as set forth on Section 5.3(c) of in the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws Rights Agreement and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in Section 5.3(d) of the Disclosure Letter4.05, (i) there are no allotted shares of capital stock or issued other equity securities of Company outstanding and no outstanding options, warrants, scrip, rights (including conversion to subscribe to, calls or preemptive commitments of any character whatsoever relating to, or securities or rights and convertible into or exchangeable for, shares of the capital stock of Company, or contracts, commitments, understandings, or arrangements by which Company is or may be bound to issue additional shares of its capital stock or options, warrants, or rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company any additional shares of Company Capital Stock, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofstock.
Appears in 2 contracts
Sources: Merger Agreement (First Midwest Bancorp Inc), Merger Agreement (Covest Bancshares Inc)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of 20,000,000 shares of common stock, par value $0.10 per share (i)64,244 “Company Common Stock”) and 100,000 shares of preferred stock, par value $1.00 per share (“Company Preferred Stock”). As of July 20, 2023 (the “Capitalization Date”), there were outstanding (i) 9,506,344 shares of Company Ordinary Shares Common Stock (which excludes the shares of Company Common Stock relating to Company RSAs, Company PSAs and Company Options), (ii) 17,898 shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital of the Company, are the whole of the allotted and issued no shares of Company Capital Preferred Stock, (iii) Company RSAs relating to an aggregate of 65,695 shares of Company Common Stock (inclusive of shares issued pursuant to awards that were formally Company PSAs but the applicable performance goals have already been satisfied), (iv) Company PSAs (assuming maximum achievement of any applicable performance goals) relating to an aggregate of 21,160 shares of Company Common Stock and (v) Company Options to purchase an aggregate of 184,904 shares of Company Common Stock. All outstanding shares of capital stock of the Company have been been, and all shares that may be issued pursuant to any Company RSAs, Company PSAs and Company Options will be, when issued, duly authorized and authorized, validly issued, and are fully paid up and no sum is outstanding in respect non-assessable and free of any Sale Share preemptive or share held by any Previous Sellersimilar rights. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect As of the Company (nor is there any agreement or arrangement for the creationCapitalization Date, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and items listed in clauses (i) through (v) of the A Pref Sharessecond sentence of Section 4.05(a)), there are no issued or outstanding Company Securities.
(b) Section 5.3(b4.05(b) of the Company Disclosure Letter Schedule sets forth a true and complete list of all Company RSAs, Company PSAs and Company Options outstanding as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital StockCapitalization Date, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shareseach such award, the name or employee identification number of the holder, the number of shares of Company Ordinary Shares (if anyCommon Stock subject to such award, the grant date, the vesting schedule or date(s) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of and, to the allotted and issued shares of Company Capital Stock have been offeredextent applicable, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws per share exercise price and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Lawsexpiration date thereof.
(c) Section 5.3(c) As of the Disclosure Letter sets forth as date of this Agreement, there are no outstanding bonds, debentures, notes or other indebtedness of the Relevant Time a complete and accurate list of all Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Common Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grantmay vote.
(d) Except as expressly set forth in this Section 5.3 Section 4.05(a), and for changes since the Capitalization Date resulting from vesting or the satisfaction of performance conditions applicable to any Company RSAs or Company PSAs or the exercise of Company Options, in Section 5.3(d) each case, that were outstanding on the Capitalization Date, as of the Disclosure Letterdate hereof, there are no issued, reserved for issuance or outstanding (i) there are no allotted shares of capital stock or issued optionsother voting securities of or ownership interests in the Company, (ii) securities of the Company or its Subsidiaries convertible or exchangeable into or exercisable for shares of capital stock or other voting securities of or ownership interests in the Company, (iii) warrants, calls, options or other rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company or its Subsidiaries, or other obligation of the Company or its Subsidiaries to issue, any shares of Company Capital Stock, capital stock or other voting securities or ownership interests in or any securities convertible into or exchangeable for shares capital stock or other voting securities or ownership interests in the Company, or (iv) stock options, restricted shares, stock appreciation rights, performance units or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock or voting securities or ownership interests of Company Capital Stock, (ii) the Company has (the items in clauses (i) through (iv) being referred to collectively as the “Company Securities”). There are no obligation (contingent outstanding contractual obligations or otherwise) commitments of the Company of any character relating to purchaseany Company Securities, including any voting trusts, proxies or any other contracts or understandings with respect to the voting of, or any agreements restricting transfer of, requiring the registration for sale of, or granting any preemptive rights, subscription rights, anti-dilutive rights, rights of first refusal or any similar rights with respect to, any Company Securities. There are no outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Securities. There are no declared or accrued but unpaid dividends or distributions with respect to any Company Common Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and Company Preferred Stock.
(ive) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price None of the Company Capital Stock or the value Securities are owned by any Subsidiary of the Company or any part thereofCompany.
Appears in 2 contracts
Sources: Merger Agreement (Chase Corp), Merger Agreement (Chase Corp)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 1,000,000,000 shares of Company Ordinary Shares Stock and 5,000,000 shares of preferred stock, par value $0.01 per share (of which 1,000,000 shares have been designated as Series A Junior Participating Preferred Stock and reserved for issuance upon exercise of the Company Rights). As of the close of business on September 29, 2005, there were outstanding (i) 245,568,588 shares of Company Stock (not including any treasury shares or restricted shares), (ii) 17,898 the Company Rights (which have not separated from the Company Stock), (iii) no shares of Seed Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire issued and to be issued share capital preferred stock of the Company, are the whole of the allotted and issued (iv) 1,474 treasury shares of Company Capital Stock, (v) stock options to purchase an aggregate of 9,273,916 shares of Company Stock, (vi) 92,793 restricted shares of Company Stock, and (vii) 245,000 stock appreciation rights of the Company. All outstanding shares of capital stock of the Company have been, and all shares that may be issued pursuant to the Company’s 2004 Stock Incentive Plan (the “Company Stock Plan”) and have been the Company Long-Term Incentive Plan will be, when issued in accordance with the respective terms thereof, duly authorized and validly issued, and are are, or, in the case of shares that may be issued pursuant to the Company Stock Plan or the Company Long-Term Incentive Plan, will be when issued in accordance with the respective terms thereof, fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Sellernonassessable. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect No Subsidiary of the Company (nor is there owns any agreement or arrangement for shares of capital stock of the creation, constitution, grant or issuance of any Relevant Securities in respect Company. Section 4.05(b) of the Company (other than the Sale Shares and the A Pref Shares)).
(b) Section 5.3(b) of the Disclosure Letter Schedule sets forth as of the Relevant Time close of business on September 29, 2005 a true and complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if anyi) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Stock Options, indicating, including with respect to each Company Share Optionsuch option, the Company Share Plan under which it was grantedname of the holder, whether the number of shares of Company Ordinary Shares subject to such Company Share Optionoption is an incentive stock option or a non-qualified stock option, the exercise price, the grant date of grant, and the vesting schedule schedule, (ii) all outstanding restricted shares of Company Stock, including any acceleration provisions with respect thereto). Section 5.3(c) to each such restricted share, the name of the Disclosure Letter sets forthholder, the grant date and the vesting schedule, and (iii) all outstanding stock appreciation rights of the Company, including with respect to each such stock appreciation right, the name of the holder, the base price, the grant date and the vesting schedule. A true and complete copy of the Company Rights Agreement as in effect as of the Relevant Time , date hereof has been made available to Parent prior to the date hereof. The Company is not a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan party to any voting agreement with respect to the number of shares voting of Company Ordinary Shares issued thereunder, the number of shares of Stock. The Company Ordinary Shares subject to outstanding options thereunder Stock Plan and the number Company Long-Term Incentive Plan are the only plans or programs the Company or any of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letterits Subsidiaries has maintained under which stock options, there is no allotted restricted stock, stock appreciation rights or issued Company Share Option that has not other compensatory equity-based awards have been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grantmay be granted.
(db) Except as set forth in this Section 5.3 4.05 and for changes since September 29, 2005 resulting from the exercise of Company Stock Options outstanding on such date or in Section 5.3(d) the issuance of the Disclosure LetterCompany Stock Options or shares of Company Stock as permitted by this Agreement, there are no outstanding (i) there are no allotted shares of capital stock of, or issued optionsother voting securities or ownership interests in, warrantsthe Company, (ii) securities of the Company or any Subsidiary of the Company convertible into or exchangeable for shares of capital stock of, or other voting securities or ownership interests in, the Company, (iii) options or other rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company or any shares Subsidiary of the Company, or other obligation of the Company Capital Stockor any Subsidiary of the Company to issue, any capital stock of, or other voting securities or ownership interests in, or any securities convertible into or exchangeable for shares of Company Capital Stockfor, capital stock of, or other voting securities or ownership interests in, the Company, or (iiiv) restricted shares, stock appreciation rights, performance units, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock of, or other voting securities or ownership interests in, the Company has (the items in clauses (i)-(iv) being referred to collectively as the “Company Securities”). There are no obligation (contingent outstanding obligations of the Company or otherwise) any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stock, or other equity or voting interest in, the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value of the Company or any part thereofSecurities.
Appears in 2 contracts
Sources: Merger Agreement (Telewest Global Inc), Merger Agreement (NTL Inc)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 shares of i) 200,000,000 Company Ordinary Shares and (ii) 17,898 10,000,000 shares of Seed Company Preferred SharesStock. The Sale As of the close of business on May 26, 2015 (the “Capitalization Date”), (A) 25,647,582 Company Shares and the shares held by the Previous Sellers constitute the entire were issued and to be outstanding, (B) no shares of Company Preferred Stock were issued share capital of the Companyand outstanding, are the whole of the allotted and issued (C) no shares of Company Capital Stock and have been duly authorized and were held by the Company as treasury shares. All outstanding Company Shares are validly issued, fully paid, non-assessable and are fully paid up and no sum is outstanding in respect free of any Sale Share or share held by any Previous Sellerpreemptive rights. Save for Since the Sale Shares and close of business on the shares in Capitalization Date, the Company held by the Previous Sellers, no Relevant Securities exist in respect has not issued any shares of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (Capital Stock other than pursuant to the Sale Shares and exercise of Company Options, Company Warrants or the A Pref Shares))settlement of Company RSUs granted under a Company Stock Plan.
(b) Section 5.3(b3.5(b)(i) of the Company Disclosure Letter Schedule sets forth as a listing of all equity plans of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertibleCompany. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b3.5(b)(ii) of the Company Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter Schedule sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicatingforth, with respect to each outstanding Company Share OptionOption and Company Warrant as of the close of business on the Capitalization Date, the Company Share Plan under which it was grantedname of the holder of such option or warrant, the number of shares Company Shares issuable upon the exercise of such option or warrant, the exercise price of such option or warrant, the date on which such option was granted or such warrant was issued, the vesting schedule for such option (including any acceleration provisions with respect thereto and any performance-based vesting terms and conditions), including the extent unvested and vested as of the close of business on the Capitalization Date whether such option is intended to qualify as an incentive stock option as defined in Section 422 of the Code, and whether such option is subject to Section 409A of the Code. Section 3.5(b)(iii) of the Company Disclosure Schedule sets forth, with respect to each outstanding Company RSU as of the close of business on Capitalization Date, the name of the holder of such award, the number of Company Ordinary Shares subject to such Company Share Option, the exercise priceaward, the date of grantgrant of such award, and the applicable vesting and/or settlement schedule (including any acceleration provisions with respect theretothereto and any performance-based vesting terms and conditions), and whether such Company RSU is subject to Section 409A of the Code). Section 5.3(c) As of the Disclosure Letter sets forthclose of business on the Capitalization Date, as of the Relevant Time , a complete and accurate list of all 3,137,966 Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares were reserved for future issuance thereunderpursuant to stock awards not yet granted under the Company Stock Plans and, since such date, the Company has not granted, committed to grant or otherwise created or assumed any obligation with respect to any Company Options, other than as permitted by Section 5.2(b). Except as set forth on Section 5.3(c) True, correct and complete copies of all of the Disclosure Letterforms of equity award agreements under the Company Stock Plans, there is no allotted and all individual agreements containing material deviations from such forms have been delivered or issued made available by the Company Share Option that has not been granted under a Company Share Planto Parent. No Company Share Option is exercisable for any class Options or series of Company Capital RSUs have been granted or are outstanding except under and pursuant to a Company Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grantPlan.
(dc) Except as set forth in this Section 5.3 or in Section 5.3(d3.5(a) of the Disclosure Letterand (b), there are (i) there are no allotted outstanding shares of capital stock of, or issued other equity or voting interest in, the Company, (ii) no outstanding securities of the Company convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, the Company, (iii) no outstanding options, phantom stock, phantom units, stock appreciation rights, restricted stock, performance shares, performance share units, performance units, profits interest, profit participation rights, warrants, rights (including conversion or preemptive rights and rights of first refusal other commitments or similar rights) or agreements, orally or in writing, agreements to purchase or acquire from the Company, or that obligates the Company to issue, any shares of Company Capital Stockcapital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of Company Capital Stock, (ii) the Company has no obligation (contingent or otherwise) to purchase, redeem or otherwise acquire any shares of Capital Stockcapital stock of, or other equity or voting interest in, the Company, (iv) no obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other Person similar agreement or commitment relating to pay any dividend capital stock of, or to make other equity or voting interest (including any other distribution voting debt) in, the Company (the items in respect of its Capital Stockclauses (i), (ii), (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv), together with the capital stock of the Company, being referred to collectively as “Company Securities”) there are or (v) no allotted, issued other obligations by the Company or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way of its Subsidiaries to make any payments based on the price of the Company Capital Stock or the value of the Company Securities. There are no outstanding Contracts of any kind which obligate the Company or any part thereofof its Subsidiaries to repurchase, redeem or otherwise acquire any Company Securities.
(d) Neither the Company nor any of its Subsidiaries is a party to any Contracts restricting the transfer of, relating to the voting of, requiring registration of, or granting any preemptive rights, anti-dilutive rights or rights of first refusal or similar rights with respect to any securities of the Company.
Appears in 2 contracts
Sources: Acquisition Agreement (Ca, Inc.), Acquisition Agreement (Rally Software Development Corp)
Capitalization. (a) The whole authorized capital stock of the allotted Company consists of 1,000,000,000 Shares and issued Company Capital Stock as 10,000,000 shares of preferred stock, par value $0.00001 per share, of the Relevant Time consists Company (the “Company Preferred Stock”). At the close of business on January 5, 2024, there were (i)64,244 i) 320,272,100 Shares outstanding; (ii) an aggregate of 3,004,557 Shares reserved for future issuance under the Company Stock Plans; (iii) an aggregate of 624,380 Shares subject to outstanding Company Option Awards; (iv) an aggregate of 14,432,738 Shares subject to outstanding time-vesting Company RSU Awards, and an aggregate of 4,720,011 Shares subject to outstanding performance-vesting Company RSU Awards (assuming maximum performance in respect of incomplete performance or measurement periods); (v) 3,631,005 Shares reserved for future issuance pursuant to the Company ESPP; and (vi) no shares of Company Ordinary Shares and (ii) 17,898 Preferred Stock outstanding. All outstanding shares of Seed Preferred Shares. The Sale Shares capital stock of the Company have been, and the all shares held by the Previous Sellers constitute the entire issued and to that may be issued share capital of pursuant to the CompanyCompany Stock Plans or the Company ESPP will be, are when issued in accordance with the whole of the allotted and issued shares of Company Capital Stock and have been respective terms thereof, duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect nonassessable and free of any Sale Share preemptive (or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company (other than the Sale Shares and the A Pref Shares))similar) rights.
(b) Section 5.3(b) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of the holders of Company Capital Stock, showing the number of shares of such Capital Stock, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 or in 4.05(a) and Section 5.3(d4.05(c) of the Company Disclosure LetterSchedule and except for changes since January 5, 2024 resulting from the exercise, settlement or forfeiture of Company Equity Awards outstanding on such date, in each case in accordance with the terms of the Company Stock Plans and Company Equity Award, as of the date hereof there are no issued, reserved for issuance or outstanding (i) there are no allotted Shares, shares of Company Preferred Stock, Company Option Awards, Company RSU Awards or issued optionsother shares of capital stock of or other voting securities of or ownership interests in the Company, (ii) securities of the Company convertible into or exchangeable or exercisable for shares of capital stock or other voting securities of or ownership interests in the Company, (iii) subscriptions, warrants, calls, options or other rights (including conversion or preemptive rights and rights of first refusal or similar rights) or agreements, orally or in writing, to purchase or acquire from the Company, or other obligations of the Company to issue, any shares capital stock or other voting securities of Company Capital Stock, or ownership interests in or any securities convertible into or exchangeable or exercisable for shares of Company Capital Stock, (ii) capital stock or other voting securities or ownership interests in the Company has or (iv) restricted shares, stock appreciation rights, performance units, contingent value rights, “phantom” stock or similar securities or rights issued by the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries is a party that are derivative of, or valued by reference to, or provide economic benefits based, directly or indirectly, on the value or price of, any capital stock or voting securities of the Company (the items in clauses (i) through (iv) being referred to collectively as the “Company Securities”). Other than the Company Stock Plan and the award agreements thereunder governing the Company Option Awards and Company RSU Awards, there are no obligation stockholder agreements or voting trusts (contingent or otherwise) other agreements or commitments), in each case, restricting the transfer or affecting the voting rights of any Company Securities to purchasewhich the Company or any of its Subsidiaries is a party or is bound, and there are no outstanding agreements, commitments or obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any shares of Capital Stockthe Company Securities, or other equity granting or voting interest inextending any preemptive rights, subscription rights, anti-dilutive rights, rights of first refusal or similar rights with respect to any Company Securities. There is no stockholder rights plan, “poison pill” or similar device in effect with respect to the Company or any Subsidiary of the Company. Neither the Company nor any Company Subsidiary has outstanding bonds, debentures, notes or other Person similar obligations, the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to pay vote) on matters on which the holders of Shares have the right to vote. No Company Securities are owned by any dividend Subsidiary of the Company.
(c) Section 4.05(c) of the Company Disclosure Schedule sets forth a true and correct list, as of the close of business on January 5, 2024, of each Company Option Award and each Company RSU Award (collectively, “Company Equity Awards”), including with respect to each Company Equity Award, as applicable (i) the employee or to make any other distribution grantee identification number, (ii) the number of Shares underlying such award (assuming maximum performance in respect of its Capital Stockincomplete performance or measurement periods), (iii) the Company has not at any time purchaseddate on which such award was granted, redeemed (iv) the exercise price for options, (v) whether such award is a nonqualified stock option or repaid any of intended to qualify as an incentive stock option under the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capitalCode, and (ivvi) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights the vesting schedule. Each Company Option Award has an exercise price per share that are linked in any way is at least equal to the price fair market value (within the meaning of Section 409A of the Company Capital Stock or the value Code) of the Company or any part thereofunderlying shares on the date of grant.
Appears in 2 contracts
Sources: Merger Agreement (Juniper Networks Inc), Merger Agreement (Hewlett Packard Enterprise Co)
Capitalization. (a) The whole As of the allotted and issued Company Capital Stock as date of this Agreement, the authorized capital stock of the Relevant Time Company consists of (i)64,244 400,000,000 shares of Company Ordinary Shares Common Stock and (ii) 17,898 50,000,000 shares of Seed preferred stock, par value $0.01 per share (“Company Preferred SharesStock”). The Sale Shares As of February 2, 2011, there were 176,833,366 shares of Company Common Stock issued and outstanding, including no Company Restricted Stock Awards, no shares of Company Preferred Stock outstanding, and 3,647,194 shares of Company Common Stock reserved for issuance upon exercise of outstanding Company Stock Options, 2,380,442 shares of Company Common Stock reserved for issuance upon vesting of outstanding Company RSU Awards and up to 752,485 shares of Company Common Stock subject to outstanding purchase rights under the Company ESPP. As of February 2, 2011, there were 1,221,905 shares of Company Common Stock held in treasury of the Company and no shares of Company Common Stock held by the Previous Sellers constitute the entire issued and to be issued share capital Subsidiaries of the Company. From February 2, are 2011 to the whole date of the allotted and issued this Agreement, no additional shares of Company Capital Common Stock and have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of any Sale Share or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect of the Company (nor is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities in respect of the Company issued (other than pursuant to Company Stock Options, Company RSU Awards and/or purchase rights under the Sale Shares and the A Pref Shares)).
(b) Section 5.3(b) of the Disclosure Letter sets forth Company ESPP that were outstanding as of the Relevant Time a complete and accurate list of the holders of February 2, 2011), no additional Company Capital StockStock Options, showing the number of shares of such Capital StockCompany Restricted Stock Awards or Company RSU Awards have been issued or granted, and the class or series of such shares, held by each such shareholder and, with respect to shares other than Company Ordinary Shares, there has been no increase in the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares Common Stock issuable upon exercise of Company Capital Stock in its treasuryOptions or vesting of Company RSU Awards from those issuable under such Company Stock Options and Company Restricted RSU Awards as of February 2, 2011. All of the allotted and issued shares of Company Capital Common Stock have been offeredare duly authorized, validly issued issued, fully paid, nonassessable and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) free of any shares preemptive rights. As of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Laws.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grantthis Agreement, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except except as set forth in this Section 5.3 or in Section 5.3(d) 3.3 and except for the Company Rights and purchase rights under the Company ESPP for no more than 752,485 shares of the Disclosure LetterCompany Common Stock, (ix) there are no allotted outstanding or issued authorized shares of capital stock and there are no options, warrants, rights (including conversion or calls, subscriptions, convertible securities, preemptive rights and rights of first refusal or similar other rights) or , agreements, orally claims or in writing, to purchase or acquire from commitments which obligate the Company or any of its Subsidiaries to issue, transfer or sell any shares of capital stock or other voting securities or other equity interest in the Company Capital Stock, or any of its Subsidiaries or securities convertible into or exchangeable for shares of Company Capital Stocksuch shares, securities or equity interests, (iiy) there are no outstanding or authorized contractual obligations of the Company has no obligation (contingent or otherwise) any of its Subsidiaries to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stock, capital stock or other voting securities of or other equity or voting interest in, in the Company or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, Subsidiaries or any such securities or agreements listed in clause (iiix) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capitalthis sentence, and (ivz) there are no allotted, issued voting trusts or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way similar agreements to the price of the Company Capital Stock or the value of which the Company or any part thereofof its Subsidiaries is a party with respect to the voting of any capital shares or other voting securities of or other equity interest in the Company or any of its Subsidiaries. The Company has no outstanding bonds, debentures, notes or other obligations the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter.
Appears in 2 contracts
Sources: Merger Agreement (Ensco PLC), Merger Agreement (Pride International Inc)
Capitalization. (a) The whole authorized capital stock of the allotted and issued Company Capital Stock as of the Relevant Time consists of (i)64,244 100,000,000 Company Common Shares and 50,000,000 shares of preferred stock, par value $0.001 per share (the “Company Ordinary Preferred Stock). As of April 26, 2006 (i) 10,516,600 Company Common Shares were issued and outstanding, (ii) 17,898 no shares of Seed the Company Preferred Shares. The Sale Shares and the shares held by the Previous Sellers constitute the entire Stock were issued and to be issued share capital of the Companyoutstanding, are the whole of the allotted and issued shares of (iii) 1,045,000 Company Capital Stock and Common Shares have been duly authorized and validly issued, and are fully paid up and no sum is outstanding in respect of reserved for issuance pursuant to any Sale Share employer stock option or share held by any Previous Seller. Save for the Sale Shares and the shares in the Company held by the Previous Sellers, no Relevant Securities exist in respect compensation plan or arrangement of the Company (nor the “Company Stock Option Plans”), (iv) 80,000 qualified or nonqualified options to purchase Company Common Shares (the “Company Stock Options”) were outstanding and (v) Warrants to acquire 233,000 Company Common Shares were outstanding. A complete list of all the Company Stock Option Plans is there any agreement or arrangement for the creation, constitution, grant or issuance of any Relevant Securities set forth in respect Section 4.3(a) of the Company (Disclosure Schedule. As of the date of this Agreement, the Company had no Company Common Shares outstanding or reserved for issuance other than as described above. All such issued and outstanding shares of capital stock of the Sale Shares Company are, and all shares thereof which may be issued prior to the A Pref Shares))Closing Date will be, when issued, duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights.
(b) Except as set forth in Section 5.3(b4.3(b) of the Company Disclosure Letter sets forth as of Schedule, neither the Relevant Time a complete and accurate list of Company nor any Company Subsidiary has any outstanding bonds, debentures, notes or other obligations the holders of Company Capital Stock, showing which have the number of shares of such Capital Stock, and right to vote (or which are convertible into or exercisable for securities having the class or series of such shares, held by each such shareholder and, right to vote) with respect to shares other than Company Ordinary Shares, the number of shares of Company Ordinary Shares (if any) into which such shares are convertible. The Company holds no shares of Company Capital Stock in its treasury. All stockholders of the allotted and issued shares of Company Capital Stock have been offered, validly issued and sold by the Company in compliance and accordance with, and no transfer (or purported transfer) of on any shares of Company Capital Stock has been made at any time in breach of, all applicable securities Laws and the Company’s articles of association. To the Company’s knowledge, the shares of Company Capital Stock owned as of the Relevant Time by each record holder listed on Section 5.3(b) of the Disclosure Letter are owned free and clear of all Liens except for restrictions on transfer under customary shareholder agreements between the holder thereof and the Company and under applicable securities Lawsmatter.
(c) Section 5.3(c) of the Disclosure Letter sets forth as of the Relevant Time a complete and accurate list of all holders of outstanding Company Share Options, indicating, with respect to each Company Share Option, the Company Share Plan under which it was granted, the number of shares of Company Ordinary Shares subject to such Company Share Option, the exercise price, the date of grant, and the vesting schedule (including any acceleration provisions with respect thereto). Section 5.3(c) of the Disclosure Letter sets forth, as of the Relevant Time , a complete and accurate list of all Company Share Plans, indicating for each Company Share Plan the number of shares of Company Ordinary Shares issued thereunder, the number of shares of Company Ordinary Shares subject to outstanding options thereunder and the number of shares of Company Ordinary Shares reserved for future issuance thereunder. Except as set forth on Section 5.3(c) of the Disclosure Letter, there is no allotted or issued Company Share Option that has not been granted under a Company Share Plan. No Company Share Option is exercisable for any class or series of Company Capital Stock other than Company Ordinary Shares. Each Company Share Option (i) was granted in compliance with all applicable Laws and all terms and conditions of the applicable Company Share Plan and (ii) has an exercise price per share of Company Ordinary Share equal to or greater than the fair market value of a share of Company Ordinary Share on the date of such grant.
(d) Except as set forth in this Section 5.3 4.3 or in Section 5.3(d4.3(c) of the Company Disclosure Letter, Schedule and except for (i) the Company Stock Options, (ii) long term incentive awards set forth in Section 4.3(e) of the Company Disclosure Schedule or (iii) out performance plan awards set forth in Section 4.3(e) of the Company Disclosure Schedule, as of the date of this Agreement, there are no allotted not any outstanding securities or issued any options, warrants, rights (including conversion calls, subscriptions, convertible securities, or preemptive rights and rights of first refusal other rights, agreements or similar rights) or agreements, orally or in writing, to purchase or acquire from commitments which obligate the Company or any Company Subsidiary to issue, transfer, sell or repurchase, redeem or otherwise acquire any securities of the Company or any Company Subsidiary. Section 4.3(c) of the Company Disclosure Schedule sets forth a true, complete and correct list of the Company Stock Options, including the name of the Person to whom such Company Stock Options have been granted, the number of shares subject to each Company Option and the per share exercise price for each Company Option. True and complete copies of all instruments (or the forms of such instruments) referred to in this Section 4.3(c) have been furnished or made available to Eagles.
(d) Section 4.3(d) of the Company Disclosure Schedule sets forth a true, complete and correct list of all restricted stock awards granted under the Company Stock Option Plans, including the name of the Person to whom such restricted stock awards have been granted and the number of shares included in each restricted stock award. True and complete copies of all instruments (or the forms of such instruments) referred to in this Section 4.3(d) have been furnished or made available to Eagles. The Company has not issued any stock appreciation rights.
(e) Except as set forth in Section 4.3(e) of the Company Disclosure Schedule, there are no agreements or understandings to which the Company or any Company Subsidiary is a party with respect to the voting of any shares of capital stock of the Company Capital Stockor which restrict the transfer of any such shares, nor does the Company have knowledge of any third party agreements or understandings with respect to the voting of any such shares or which restrict the transfer of any such shares.
(f) Except as set forth in Section 4.3(f) of the Company Disclosure Schedule, there are no outstanding contractual obligations of the Company or any securities convertible into or exchangeable for shares of Company Capital StockSubsidiary to issue, (ii) the Company has no obligation (contingent or otherwise) to purchaserepurchase, redeem or otherwise acquire any shares of Capital Stockcapital stock, or other equity or voting interest in, the Company partnership interests or any other Person or to pay any dividend or to make any other distribution in respect of its Capital Stock, (iii) the Company has not at any time purchased, redeemed or repaid any of the Company Capital Stock or otherwise agreed to reduce any class of its issued share capital or carried out any transaction having the effect of a reduction of capital, and (iv) there are no allotted, issued or authorized stock appreciation rights, phantom stock awards or other rights that are linked in any way to the price of the Company Capital Stock or the value securities of the Company or any part thereofCompany Subsidiary.
(g) Except as set forth in Section 4.3(g) of the Company Disclosure Schedule, neither the Company nor any Company Subsidiary is under any obligation, contingent or otherwise, by reason of any agreement to register the offer and sale or resale of any of their securities under the Securities Act.
Appears in 2 contracts
Sources: Merger Agreement (Sunset Financial Resources Inc), Agreement and Plan of Merger (Sunset Financial Resources Inc)