4Capitalization. The capitalization of the Company is as follows:
4Capitalization. (a) The authorized capital of the Buyer consists, immediately prior to the Closing of:
(i) 500,000,000 shares of common stock, $0.0001 par value per share (the “Common Stock”), 121,192,209 shares of which are issued and outstanding immediately prior to the Closing. 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. The Buyer holds no Common Stock in its treasury.
(ii) 2,000,000 shares of preferred stock, of which 500 shares have been designated as Series A preferred stock and 3,000 shares have been designated as Series B preferred stock (the “Preferred Stock”), all of which designated shares are issued and outstanding immediately prior to the Closing. All of the outstanding shares of Preferred Stock have been duly authorized, are fully paid and nonassessable and were issued in compliance with all applicable federal and state securities Laws. The Buyer holds no Preferred Stock in its treasury.]
(iii) The rights privileges and preferences of the Buyer’s capital stock are as stated in Buyer’s Certificate of Incorporation, a copy of which is attached hereto as Exhibit B (the “Certificate of Incorporation”), Buyer’s Bylaws, a copy of which is attached hereto as Exhibit C (the “Bylaws”), and as otherwise provided by the Delaware General Corporation Law.
(b) Buyer has reserved 3,160,000 shares of Common Stock for issuance to officers, directors, employees and consultants of Buyer pursuant to its 2006 stock option Plan, duly adopted by Buyer’s Board of Directors (the “Stock Plan”). Of such reserved shares of Common Stock, options to purchase 3,160,000 shares have been granted and are currently outstanding, and no shares of Common Stock remain available for issuance to officers, directors, employees and consultants pursuant to the Stock Plan. Buyer has furnished to Sellers complete and accurate copies of the Stock Plan and forms of agreements used thereunder.
(c) None of Buyer’s stock purchase agreements or stock option documents contains a provision for acceleration of vesting (or lapse of a repurchase right) 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, including, without limitation, in the case where Buyer’s Stock Plan is not assumed in an acquisition. Buyer has never adjusted or amended the exercise price of any stock o...
4Capitalization. (a) The authorized capital stock of the Company consists solely of ___ shares of common stock, $___ par value, of the Company and the authorized stock and record owners of the outstanding capital stock of each Subsidiary is as set forth in Schedule 2.4(a). The Purchased Shares and shares in each Subsidiary have been duly and validly issued and are fully paid and nonassessable. None of the Purchased Shares have been issued in violation of any preemptive right or the terms of any agreement by which the Company or Seller is bound.
(b) Except as described in Schedule 2.4(b), Seller (i) is the sole record and beneficial owner of the Purchased Shares, free and clear of all Liens, restrictions, options, agreements, voting trusts and proxies, (ii) has full legal and beneficial title to the Purchased Shares, free and clear of all Liens, and (iii) has full legal right, power, and authority to transfer, convey, and sell the Purchased Shares to Purchaser at Closing, and the Company (A) is the sole record and beneficial owner of the shares of the Subsidiaries described in Schedule 2.4(a), free and clear of all Liens, restrictions, option agreements, voting trust and proxies, and (B) has full legal and beneficial title to the shares of Subsidiaries. Upon delivery of one or more certificates representing the Purchased Shares at the Closing contemplated hereby, in genuine and unaltered form, duly endorsed in blank or accompanies by duly executed stock powers endorsed in blank, with requisite stock transfer tax stamps, if any, attached, Seller will transfer to Purchaser good and valid title to the Purchased Shares and the shares of the Subsidiaries, free and clear of all Liens except for the Liens described in Schedule 2.4(b), t.
(c) Except as described in Schedule 2.4(c), there are no rights, subscriptions, warrants, options, phantom stock rights, conversion rights, or agreements of any kind outstanding or in effect to purchase or otherwise acquire (i) the Purchased Shares or any Shares of, or ownership interest in the Subsidiaries, or (ii) any obligations of any kind convertible into or exchangeable for all or any part of the Purchased Shares or of any shares of, or ownership interest in the Subsidiaries.
4Capitalization. The authorized capital stock of Parent consists of 200,000,000 shares of Parent Common Stock and 50,000,000 shares of Parent Preferred Stock. As of the date of this Agreement, (a) 31,959,111 shares of Parent Common Stock were issued and outstanding, all of which were duly authorized and validly issued and are fully paid and non-assessable, (b) no shares of Parent Preferred Stock are outstanding and (c) no shares of Parent Common Stock or Parent Preferred Stock are held in the treasury of Parent. As of the date hereof, (x) Parent Options to purchase 234,606 shares of Parent Common Stock were outstanding and (y) 780,578 shares of Parent Restricted Stock were outstanding (and are included in the amount set forth in clause (a) above). Except as set forth in the preceding sentence or in Section 5.4 of the Parent Disclosure Letter, there are no options, stock appreciation rights, voting securities, warrants or other rights, contracts, arrangements, or commitments of any character relating to the issued or unissued capital stock of Parent, or obligating Parent or any of its Subsidiaries to issue, grant, or sell any shares of capital stock of, or other equity interests in, or securities convertible into equity interests in Parent. Each outstanding share of capital stock of Parent is duly authorized, validly issued, fully paid, and non-assessable.
4Capitalization. The entire authorized capital stock of the Company consists, or shall immediately prior to the Closing shall consist, of:
(a) [ ] shares of Common Stock, of which (i) [ ] shares have been issued and are outstanding, (ii) [ ] shares of Common Stock have been reserved for issuance to employees, officers, directors and consultants pursuant awards granted and to be granted under the Company's 2000 Stock Incentive Plan (the "Incentive Plan"), and (iii) no shares are held as treasury shares; and
(b) [ ] shares of Preferred Stock, $.001 par value (the “Preferred Stock”), none of which are issued and outstanding. All issued and outstanding capital stock has been duly and validly issued and is fully paid and non-assessable. Except as set forth in Schedule 2.4 or the Strategic Alliance Agreement, there are no outstanding shares of capital stock of the Company or warrants, options, agreements, convertible securities or other commitments pursuant to which the Company is or may become obligated to issue any shares of capital stock or other securities of the Company. The number of shares of capital stock reserved for issuance is not subject to adjustment by reason of the issuance of the Shares or the shares of Common Stock issuable upon conversion thereof. Except as set forth in Schedule 2.4 and except as set forth in the Related Agreements, there are no preemptive rights, contractual rights of first refusal or similar rights to purchase or otherwise acquire shares of capital stock of the Company pursuant to any provision of law, the Certificate of Incorporation or the By-Laws or any agreement to which the Company is a party.
4Capitalization. All of the issued and outstanding Contributor Equity Interests, which shall mean all the outstanding and issued membership units of the Contributor, are owned of record and beneficially by the Contributor Equityholders. A true and complete list of the certificate numbers and number of membership interests held by each of the Contributor Equityholders is set forth in Schedule [4.2.4]. There are no options, calls, subscriptions, warrants, agreements, buy-sell agreements, member control agreements, or other securities or rights outstanding for the purchase or other acquisition of Seller’s Equity Interests; that are convertible into, exercisable for, or relate to Contributor’s equity interests; or that have any voting rights. Contributor has no outstanding contractual obligations to repurchase, redeem, or otherwise acquire any outstanding shares of Seller’s Equity Interests other than as provided in the Operating Agreement of Contributor. Contributor and Contributor Equityholders have waived all rights and provisions of Operating Agreement of Contributor that would affect in any manner any of the transactions contemplated in this Agreement. A copy of the waiver has been delivered to Operating Partnership.
4Capitalization. The authorized capital stock of EXAD consists of (a) 200,000,000 shares of common stock of which 196,909,600 shares are presently issued and outstanding, and (b) 15,000,000 shares of preferred stock, $.001 par value, of which 5 million shares are designated as Series A Convertible Preferred, and 650,000 are issued and outstanding, 5 million are designated as Series B Redeemable Preferred, and 5 million designated as Blank Check Preferred. Except as contemplated by this Agreement, EXAD has not granted, issued or agreed to grant, issue or make available any warrants, options, subscription rights or any other commitments of any character relating to the unissued shares of capital stock of EXAD. All of the issued and outstanding capital stock of EXAD has been duly authorized and validly issued, fully paid and non-assessable, and was issued in compliance with applicable securities laws.
4Capitalization. (a) The authorized capital stock of the Company consists of 100 Shares which are designated as common shares, of which 100 Shares are issued and outstanding, and of which none are held by the Company as treasury stock. All Shares have been duly authorized and are validly issued, fully paid and non-assessable and have not been issued in violation of any preemptive rights or applicable Law.
(b) Except for this Agreement, there is no outstanding option, warrant, call, right or Contract of any character to which the Company is a party requiring, and there are no securities of the Company outstanding which upon conversion or exchange would require, the issuance, of any shares of capital stock of the Company or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase shares of capital stock of the Company. There are no outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any securities or equity interests of the Company. The Company is not a party to any voting trust or other Contract with respect to the voting, redemption, sale, transfer or other disposition of the Shares. There are no declared or authorized but unpaid dividends or distributions with regard to the Shares.
4Capitalization. The authorized capital stock or other capitalization, as applicable, of each Credit Party that is not a natural person, is set forth in Schedule 6.4 attached hereto. All of such outstanding shares or other securities of each such Credit Party are validly issued, fully paid and non-assessable and have been issued in compliance with all foreign, federal and state securities laws and none of such outstanding shares or other securities were issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. As of the Effective Date, no shares of capital stock or other securities of any Credit Party are subject to preemptive rights or any other similar rights or any Claims or Encumbrances suffered or permitted by such Credit Party. Except for the Securities to be issued pursuant to this Agreement and as set forth in BYOC’s filings with the SEC, as of the Effective Date: (i) there are no outstanding debt securities, notes, credit agreements, credit facilities or other Contracts or instruments evidencing indebtedness of the Credit Party, or by which a Credit Party is or may become bound; (ii) there are no outstanding registration statements with respect to any Credit Party or any of its securities; (iii) there are no agreements or arrangements under which a Credit Party is obligated to register the sale of any of their securities under the Securities Act (except pursuant to this Agreement); (iv) there are no financing statements securing obligations filed in connection with the Credit Parties or any of their Assets; (v) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by this Agreement or any related agreement or the consummation of the transactions described herein or therein; and (vi) there are no outstanding securities or instruments of a Credit Party which contain any redemption or similar provisions, and there are no Contracts by which a Credit Party is or may become bound to redeem a security of said Credit Party. The Credit Parties have furnished to the Buyer true, complete and correct copies of: each Credit Party’s respective articles of incorporation (including any certificates of designation, as applicable), bylaws, operating agreement, partnership agreement, certificate of organization or similar organizational and governing documents (the “Organizational Documents”). Except for the Organizational Documents or as disclosed in BYOC’s filings with the SEC or c...
4Capitalization. Sellers have good and marketable title to, and sole record and beneficial ownership of, the Membership Interest of the Acquired Company, and will be free and clear of any and all Liens following the Effective Time, other than Liens created or imposed by the Purchaser. The Membership Interest constitutes all of the membership interests of the Acquired Company. There are no outstanding options, warrants, purchase rights, subscription rights exchange rights or other rights (including conversion of debt and equity securities, or preemptive rights and rights of first refusal), convertible securities or any other Membership Interest or equity rights of the Acquired Company, proxy or stockholder agreements, commitments or agreements of any kind for the purchase or acquisition from the Acquired Company or the Sellers of any equity rights, or any outstanding obligations or agreements of the Acquired Company to redeem, repurchase, or otherwise acquire any of the Membership Interest of the Acquired Company.
