Capitalization, Etc. (a) As of the date hereof, the authorized Parent Capital Stock consists solely of (i) 35 million shares of Class A common stock, (ii) 200 million shares of Class B common stock, and (iii) 10 million shares of Parent Preferred Stock. A total of 23,921,892 of shares of Parent Class B Common Stock, 787,163 shares of Parent Class A Common Stock and no shares of Parent Preferred Stock are issued and outstanding as of the date hereof. As of the date hereof, Parent has reserved the following shares of Parent Common Stock for issuance to employees, non-employee directors and consultants pursuant to the Parent Equity Plan or otherwise: 638,409 shares are subject to outstanding and unexercised options to purchase Parent Class B Common Stock, 608,541 shares are subject unvested restricted stock awards, and 171,986 shares remain available for issuance thereunder. The Debt of Parent as of the Parent date hereof is listed in Part 3.2(a) of the Parent Disclosure Schedule. (b) Except as described in Section 3.2(a) (Capitalization, Etc.), (A) there are no other existing options, warrants, calls, rights (including conversion rights, preemptive rights, co-sale rights, rights of first refusal or other similar rights) issued or granted by Parent, and there are no securities of Parent outstanding which upon conversion or exchange would require, the issuance, sale or transfer of any additional shares of capital stock or other equity securities of Parent or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase shares of Parent Capital Stock or other equity securities of Parent, (B) there are no obligations, contingent or otherwise, of Parent to (1) repurchase, redeem or otherwise acquire any shares of Parent Capital Stock or (2) to make any material investment in (in the form of a loan, capital contribution or otherwise), or to provide any guarantee (excluding indemnification obligations) with respect to the obligations of, any Person,. (c) There are no outstanding stock appreciation, phantom stock, profit participation or similar rights with respect to the Parent. (d) There are no bonds, debentures, notes or other Debt of Parent or its Subsidiaries having the right to vote or consent (or, convertible into, or exchangeable for, securities having the right to vote or consent) on any matters on which holders of Parent Capital Stock may vote. There are no voting trusts, irrevocable proxies or other Contracts or understandings to which Parent, or any holder of the warrants or options to purchase Parent Common Stock is a party or is bound with respect to the voting or consent of any shares of Parent Capital Stock. (e) All of the outstanding shares of Parent Capital Stock are and have been duly authorized and validly issued, and are fully paid and nonassessable, are not subject to any preemptive rights, purchase options, call options, rights of first refusal or similar rights or any other Liens and have been issued and granted in all material respects in compliance with all applicable securities Laws and other applicable Laws. (f) The authorized capital stock of First Merger Sub consists solely of 1,000 shares of common stock, par value $0.01 per share, all of which are validly issued and outstanding. All of the issued and outstanding capital stock of First Merger Sub is, and as of the First Effective Time shall be, directly or indirectly owned by Parent. (g) The Second Merger Sub has only one class of membership interests. All of the issued and outstanding equity interests of Second Merger Sub is, and as of each of the First Effective Time and Second Effective Time shall be, directly or indirectly owned by Parent.. (h) All of the Parent Subsidiaries, except Merger Subs, are set forth in the Parent SEC Documents. Parent owns, directly or indirectly, the capital stock or other equity interests of each Parent Subsidiary, free and clear of any Liens, and all of the issued and outstanding shares of capital stock or other equity interests of each Parent Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities. (i) The Parent Common Stock is listed on the NYSE. Parent will maintain such listing immediately after Closing.
Appears in 2 contracts
Samples: Merger Agreement (Cyclo Therapeutics, Inc.), Merger Agreement (Cyclo Therapeutics, Inc.)
Capitalization, Etc. (a) As The authorized capital stock of the Parent consists of: (i) 58,750,000 shares of Parent Common Stock, of which 21,182,147 shares have been issued and are outstanding as of the date hereof, the authorized Parent Capital Stock consists solely of (i) 35 million shares of Class A common stock, this Agreement; and (ii) 200 million shares of Class B common stock, and (iii) 10 million 2,000,000 shares of Parent Preferred Stock. , of which 45,000 have been designated as Series A total of 23,921,892 of shares of Parent Class B Common Junior Participating Preferred Stock, 787,163 shares $0.01 par value, of Parent Class A Common Stock and which no shares of Parent Preferred Stock are or Series A Junior Participating Preferred Stock have been issued and outstanding as of the date hereofare outstanding. As of the date hereof, Parent has reserved the following shares of Parent Common Stock for issuance to employees, non-employee directors and consultants pursuant to the Parent Equity Plan or otherwise: 638,409 shares are subject to outstanding and unexercised options to purchase Parent Class B Common Stock, 608,541 shares are subject unvested restricted stock awards, and 171,986 shares remain available for issuance thereunder. The Debt of Parent as of the Parent date hereof is listed in Part 3.2(a) of the Parent Disclosure Schedule.
(b) Except as described in Section 3.2(a) (Capitalization, Etc.), (A) there are no other existing options, warrants, calls, rights (including conversion rights, preemptive rights, co-sale rights, rights of first refusal or other similar rights) issued or granted by Parent, and there are no securities of Parent outstanding which upon conversion or exchange would require, the issuance, sale or transfer of any additional shares of capital stock or other equity securities of Parent or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase shares of Parent Capital Stock or other equity securities of Parent, (B) there are no obligations, contingent or otherwise, of Parent to (1) repurchase, redeem or otherwise acquire any shares of Parent Capital Stock or (2) to make any material investment in (in the form of a loan, capital contribution or otherwise), or to provide any guarantee (excluding indemnification obligations) with respect to the obligations of, any Person,.
(c) There are no outstanding stock appreciation, phantom stock, profit participation or similar rights with respect to the Parent.
(d) There are no bonds, debentures, notes or other Debt of Parent or its Subsidiaries having the right to vote or consent (or, convertible into, or exchangeable for, securities having the right to vote or consent) on any matters on which holders of Parent Capital Stock may vote. There are no voting trusts, irrevocable proxies or other Contracts or understandings to which Parent, or any holder of the warrants or options to purchase Parent Common Stock is a party or is bound with respect to the voting or consent of any shares of Parent Capital Stock.
(e) All of the outstanding shares of Parent Capital Common Stock are and have been duly authorized and validly issued, and are fully paid and nonassessable, are not . None of the Abeline Corporations (other than the Parent) holds any shares of Parent Common Stock or any rights to acquire shares of Parent Common Stock.
(b) Except as set forth in Part 3.3(b) of the Parent Disclosure Schedule: (i) none of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive rightsright, purchase optionsright of repurchase or forfeiture, call optionsright of participation, rights right of maintenance or any similar right; (ii) none of the outstanding shares of Parent Common Stock is subject to any right of first refusal in favor of the Parent; and (iii) there is no Parent Contract 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 shares of Parent Common Stock. None of the Abeline Corporations is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock or other securities, except for the Parent's right to repurchase or reacquire restricted shares of Parent Common Stock held by an employee of the Parent upon termination of such employee's employment or upon any other forfeiture of a vesting condition.
(c) As of the date of this Agreement: (i) 2,107,249 shares of Parent Common Stock are subject to issuance pursuant to Parent Options; (ii) 59,076 shares of Parent Common Stock are reserved for future issuance pursuant to the Abeline 2010 Employee Stock Purchase Plan (the "Parent ESPP"); (iii) 643,370 shares of Parent Common Stock are subject to issuance upon the vesting of Parent RSUs; and (iv) 1,191,694 shares of Parent Common Stock are reserved for future issuance pursuant to equity awards not yet granted under the Parent Option Plans.
(d) As of the date of this Agreement, 45,000 shares of Parent Preferred Stock, designated as Series A Junior Participating Preferred Stock, are reserved for future issuance upon exercise of the rights (the "Parent Rights") issued pursuant to the Parent Rights Agreement.
(e) The Parent has delivered or Made Available to Company a complete and accurate list that sets forth with respect to each Parent Equity Award outstanding as of the date of this Agreement the following information: (i) the particular plan (if any) pursuant to which such Parent Equity Award was granted; (ii) the name of the holder of such Parent Equity Award; (iii) the type of Parent Equity Award (whether a Parent Option, a Parent RSU, or another type of Parent Equity Award); (iv) the number of shares of Parent Common Stock subject to such Parent Equity Award; (v) the per share exercise price (if any) of such Parent Equity Award; (vi) the applicable vesting schedule, and the extent to which such Parent Equity Award is vested and exercisable, if applicable; (vii) the date on which such Parent Equity Award was granted; (viii) the date on which such Parent Equity Award expires (if applicable); (ix) if such Parent Equity Award is a Parent Option, whether such Parent Option is an "incentive stock option" (as defined in the Code) or a non-qualified stock option; and (x) if such Parent Equity Award is in the form of Parent RSU, the dates on which shares of Parent Common Stock with respect to such Parent RSU are scheduled to be issued upon vesting. The Parent has delivered or Made Available to the Company accurate and complete copies of all equity plans pursuant to which any outstanding Parent Equity Awards were granted by the Parent, and the forms of all agreements evidencing such Parent Equity Awards. The exercise price of each Parent Option is not less than the fair market value of a share of Parent Common Stock as determined on the date of grant of such Parent Option. All grants of Parent Equity Awards were recorded on the Parent's financial statements (including, any related notes thereto) contained in the Parent SEC Documents in accordance with GAAP, and no such grants involved any "back dating" or similar practices with respect to the effective date of grant (whether intentional or otherwise). There are no outstanding or authorized stock appreciation, phantom stock, profit participation or similar rights or similar equity-based awards with respect to any of the Abeline Corporations.
(f) Except as set forth in Sections 3.3(a), 3.3(c) and 3.3(d), or as permitted from and after the date of this Agreement pursuant to Section 4.3, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of any of the Abeline Corporations; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the Abeline Corporations or that has the right to vote on any matter on which the stockholders of Parent have the right to vote; (iii) Contract under which any of the Abeline Corporations is or may become obligated to sell or otherwise issue any shares of its capital stock or any other Liens securities; or (iv) condition or circumstance that would reasonably be expected to give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of any of the Abeline Corporations.
(g) All outstanding shares of Parent Common Stock, and all options and other Parent Equity Awards and other securities of the Abeline Corporations, have been issued and granted in compliance in all material respects in compliance with with: (i) all applicable securities Laws laws and other applicable LawsLegal Requirements; and (ii) all requirements set forth in applicable Contracts.
(f) The authorized capital stock of First Merger Sub consists solely of 1,000 shares of common stock, par value $0.01 per share, all of which are validly issued and outstanding. All of the issued and outstanding capital stock of First Merger Sub is, and as of the First Effective Time shall be, directly or indirectly owned by Parent.
(g) The Second Merger Sub has only one class of membership interests. All of the issued and outstanding equity interests of Second Merger Sub is, and as of each of the First Effective Time and Second Effective Time shall be, directly or indirectly owned by Parent..
(h) All of the Parent Subsidiaries, except Merger Subsoutstanding shares of capital stock of each of the Parent's Subsidiaries have been duly authorized and validly issued, are set forth in fully paid and nonassessable and free of preemptive rights, with no personal liability attaching to the Parent SEC Documents. Parent ownsownership thereof, directly or indirectly, and are owned beneficially and of record by the capital stock or other equity interests of each Parent SubsidiaryParent, free and clear of any LiensEncumbrances, and all of the issued and outstanding shares of capital stock or other equity interests of each Parent Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securitiesthan restrictions under applicable securities laws.
(i) The Parent Common Stock is listed on the NYSE. Parent will maintain such listing immediately after Closing.
Appears in 2 contracts
Samples: Merger Agreement (Allos Therapeutics Inc), Merger Agreement (Amag Pharmaceuticals Inc.)
Capitalization, Etc. (a) As The authorized capital stock of the date hereof, the authorized Parent Capital Stock consists solely of of: (i) 35 million 100,000,000 shares of Class A common stockParent Common Stock, $0.001 par value per share, of which 15,049,808 shares are issued and are outstanding; and (ii) 200 million shares of Class B common stock, and (iii) 10 million 5,000,000 shares of Parent Preferred Stock. , $0.001 par value per share, 1,321,514 of which have been designated as Series A total of 23,921,892 of shares of Parent Class B Common Convertible Preferred Stock, 787,163 $0.001 par value per share, 1,321,514 of which shares of Parent Class A Common Stock and no shares of Parent Preferred Stock are issued and outstanding as of the date hereofare outstanding. As of the date hereof, Parent has reserved the following shares of Parent Common Stock for issuance to employees, non-employee directors and consultants pursuant to the Parent Equity Plan or otherwise: 638,409 shares are subject to outstanding and unexercised options to purchase Parent Class B Common Stock, 608,541 shares are subject unvested restricted stock awards, and 171,986 shares remain available for issuance thereunder. The Debt of Parent as of the Parent date hereof is listed in Part 3.2(a) of the Parent Disclosure Schedule.
(b) Except as described in Section 3.2(a) (Capitalization, Etc.), (A) there are no other existing options, warrants, calls, rights (including conversion rights, preemptive rights, co-sale rights, rights of first refusal or other similar rights) issued or granted by Parent, and there are no securities of Parent outstanding which upon conversion or exchange would require, the issuance, sale or transfer of any additional shares of capital stock or other equity securities of Parent or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase shares of Parent Capital Stock or other equity securities of Parent, (B) there are no obligations, contingent or otherwise, of Parent to (1) repurchase, redeem or otherwise acquire any shares of Parent Capital Stock or (2) to make any material investment in (in the form of a loan, capital contribution or otherwise), or to provide any guarantee (excluding indemnification obligations) with respect to the obligations of, any Person,.
(c) There are no outstanding stock appreciation, phantom stock, profit participation or similar rights with respect to the Parent.
(d) There are no bonds, debentures, notes or other Debt of Parent or its Subsidiaries having the right to vote or consent (or, convertible into, or exchangeable for, securities having the right to vote or consent) on any matters on which holders of Parent Capital Stock may vote. There are no voting trusts, irrevocable proxies or other Contracts or understandings to which Parent, or any holder of the warrants or options to purchase Parent Common Stock is a party or is bound with respect to the voting or consent of any shares of Parent Capital Stock.
(e) All of the outstanding shares of Parent Capital Common Stock are and have been duly authorized and validly issued, and are fully paid and nonassessable, are not . None of the Xxxx Corporations (other than the Parent) holds any shares of Parent Common Stock or any rights to acquire shares of Parent Common Stock.
(b) Except as set forth in Part 3.5(b) of the Parent Disclosure Schedule: (i) none of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive rightsright, purchase optionsright of repurchase or forfeiture, call optionsright of participation, rights right of maintenance or any similar right; (ii) none of the outstanding shares of Parent Common Stock is subject to any right of first refusal in favor of the Parent; and (iii) there is no Parent Contract 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 shares of Parent Common Stock. None of the Xxxx Corporations is under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock or other securities, except for the Parent’s right to repurchase or reacquire restricted shares of Parent Common Stock held by an employee of the Parent upon termination of such employee’s employment or upon any other forfeiture of a vesting condition.
(c) As of the date of this Agreement: (i) 4,286,357 shares of Parent Common Stock are subject to issuance pursuant to Parent Options; and (ii) 13,681,118 shares of Parent Common Stock are reserved for future issuance pursuant to equity awards not yet granted under the Parent Option Plans.
(d) The Parent has delivered or Made Available to Company a complete and accurate list that sets forth with respect to each Parent Equity Award outstanding as of the date of this Agreement the following information: (i) the particular plan (if any) pursuant to which such Parent Equity Award was granted; (ii) the name of the holder of such Parent Equity Award; (iii) the type of Parent Equity Award; (iv) the number of shares of Parent Common Stock subject to such Parent Equity Award; (v) the per share exercise price (if any) of such Parent Equity Award; (vi) the applicable vesting schedule, and the extent to which such Parent Equity Award is vested and exercisable, if applicable; (vii) the date on which such Parent Equity Award was granted; (viii) the date on which such Parent Equity Award expires (if applicable); and (ix) if such Parent Equity Award is a Parent Option, whether such Parent Option is an “incentive stock option” (as defined in the Code) or a non-qualified stock option. The Parent has delivered or Made Available to the Company accurate and complete copies of all equity plans pursuant to which any outstanding Parent Equity Awards were granted by the Parent, and the forms of all agreements evidencing such Parent Equity Awards. The exercise price of each Parent Option is not less than the fair market value of a share of Parent Common Stock as determined on the date of grant of such Parent Option. All grants of Parent Equity Awards were recorded on the Parent’s financial statements (including, any related notes thereto) contained in the Parent SEC Documents in accordance with GAAP, and no such grants involved any “back dating” or similar practices with respect to the effective date of grant (whether intentional or otherwise). There are no outstanding or authorized stock appreciation, phantom stock, profit participation or similar rights or similar equity-based awards with respect to any of the Xxxx Corporations.
(e) Except as set forth in Sections 3.5(a), 3.5(c) and 3.5(d), or as permitted from and after the date of this Agreement pursuant to Section 4.3, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of any of the Xxxx Corporations; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the Xxxx Corporations or that has the right to vote on any matter on which the stockholders of Parent have the right to vote; (iii) Contract under which any of the Xxxx Corporations is or may become obligated to sell or otherwise issue any shares of its capital stock or any other Liens securities; or (iv) condition or circumstance that would reasonably be expected to give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of any of the Xxxx Corporations.
(f) All outstanding shares of Parent Common Stock, and all options and other Parent Equity Awards and other securities of the Xxxx Corporations, have been issued and granted in compliance in all material respects in compliance with with: (i) all applicable securities Laws laws and other applicable Laws.
Legal Requirements; and (fii) The authorized capital stock of First Merger Sub consists solely of 1,000 shares of common stock, par value $0.01 per share, all of which are validly issued and outstanding. All of the issued and outstanding capital stock of First Merger Sub is, and as of the First Effective Time shall be, directly or indirectly owned by Parentrequirements set forth in applicable Contracts.
(g) The Second Merger Sub has only one class of membership interests. All of the issued and outstanding equity interests shares of Second Merger Sub is, and as capital stock of each of the First Effective Time Parent’s Subsidiaries have been duly authorized and Second Effective Time shall be, directly or indirectly owned by Parent..
(h) All of the Parent Subsidiaries, except Merger Subsvalidly issued, are set forth in fully paid and nonassessable and free of preemptive rights, with no personal liability attaching to the Parent SEC Documents. Parent ownsownership thereof, directly or indirectly, and are owned beneficially and of record by the capital stock or other equity interests of each Parent SubsidiaryParent, free and clear of any LiensEncumbrances, and all of the issued and outstanding shares of capital stock or other equity interests of each Parent Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securitiesthan restrictions under applicable securities laws.
(i) The Parent Common Stock is listed on the NYSE. Parent will maintain such listing immediately after Closing.
Appears in 2 contracts
Samples: Merger Agreement (Luna Innovations Inc), Merger Agreement (Advanced Photonix Inc)
Capitalization, Etc. (a) As The authorized capital stock of the date hereof, the authorized Parent Capital Stock consists solely of of: (i) 35 million 100,000,000 shares of Class A common stockParent Common Stock, of which 27,276,734 shares are issued and outstanding as of March 31, 2020; and (ii) 200 million shares of Class B common stock, and (iii) 10 million 8,000,000 shares of Parent Preferred Stock. A total , of 23,921,892 of shares of Parent Class B Common Stock, 787,163 shares of Parent Class A Common Stock and no which 3,906 shares of Parent Preferred Stock are issued and or outstanding as of the date hereofMarch 31, 2020 (the “Parent Preferred Stock”). As of the date hereof, Parent has reserved the following shares of Parent Common Stock for issuance to employees, non-employee directors and consultants pursuant to the Parent Equity Plan or otherwise: 638,409 shares are subject to outstanding and unexercised options to purchase Parent Class B Common Stock, 608,541 shares are subject unvested restricted stock awards, and 171,986 shares remain available for issuance thereunder. The Debt of Parent as of the Parent date hereof is listed in Part 3.2(a) of the Parent Disclosure Schedule.
(b) Except as described in Section 3.2(a) (Capitalization, Etc.), (A) there are no other existing options, warrants, calls, rights (including conversion rights, preemptive rights, co-sale rights, rights of first refusal or other similar rights) issued or granted by Parent, and there are no securities of Parent outstanding which upon conversion or exchange would require, the issuance, sale or transfer of any additional shares of capital stock or other equity securities of Parent or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase shares of Parent Capital Stock or other equity securities of Parent, (B) there are no obligations, contingent or otherwise, of Parent to (1) repurchase, redeem or otherwise acquire any shares of Parent Capital Stock or (2) to make any material investment in (in the form of a loan, capital contribution or otherwise), or to provide any guarantee (excluding indemnification obligations) with respect to the obligations of, any Person,.
(c) There are no outstanding stock appreciation, phantom stock, profit participation or similar rights with respect to the Parent.
(d) There are no bonds, debentures, notes or other Debt of Parent or its Subsidiaries having the right to vote or consent (or, convertible into, or exchangeable for, securities having the right to vote or consent) on any matters on which holders of Parent Capital Stock may vote. There are no voting trusts, irrevocable proxies or other Contracts or understandings to which Parent, or any holder of the warrants or options to purchase Parent Common Stock is a party or is bound with respect to the voting or consent of any shares of Parent Capital Stock.
(e) All of the outstanding shares of Parent Capital Common Stock are and have been duly authorized and validly issued, and are fully paid and nonassessable, are not . None of the Parent Companies (other than Parent) holds any shares of Parent Common Stock or any rights to acquire shares of Parent Common Stock. (b) (i) None of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive rightsright, purchase optionsright of repurchase or forfeiture, call optionsright of participation, rights right of maintenance or any similar right pursuant to the certificate of incorporation (or similar organizational document) or Contract to which any Parent Company or, to Parent’s knowledge, to which any stockholder of Parent, is a party; (ii) none of the outstanding shares of Parent Common Stock is subject to any right of first refusal in favor of the Parent; and (iii) there is no Parent Contract 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 rights right with respect to), any shares of Parent Common Stock. None of the Parent Companies is bound by any Contract pursuant to which it may become obligated to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock or other securities, except for the Parent’s right to repurchase or reacquire restricted shares of Parent Common Stock held by an employee of the Parent upon termination of such employee’s employment or upon any other Liens forfeiture of a vesting condition.
(c) As of March 31, 2020: (i) 4,852,237 shares of Parent Common Stock are subject to issuance pursuant to Parent Options; (ii) 531,721 shares of Parent Common Stock are reserved for future issuance pursuant to the Parent ESPP; (iii) 6,735,378 shares of Parent Common Stock are subject to issuance upon conversion of the Parent Preferred Stock; (iv) 4,534,427 shares of Parent Common Stock are reserved for future issuance pursuant to equity awards not yet granted under the Parent Option Plans; and (v) 10,000 shares of Parent Common Stock are subject to issuance pursuant to Parent Warrants.
(d) Except as set forth in Sections 3.3(a) and 3.3(c), as of March 31, 2020 there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of any of the Parent Companies; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of any of the Parent Companies; or (iii) stockholder rights plan (or similar plan commonly referred to as a “poison 36
(e) All outstanding shares of Parent Common Stock, and all Parent Options and other securities of the Parent Companies, have been issued and granted in compliance in all material respects in compliance with with: (i) all applicable securities Laws laws and other applicable LawsLegal Requirements; and (ii) all requirements set forth in applicable Contracts.
(f) The authorized capital stock of First Merger Sub consists solely of 1,000 shares of common stock, par value $0.01 per share, all of which are validly issued and outstanding. All of the issued and outstanding shares of capital stock of First Merger Sub is, and as of the First Effective Time shall be, directly or indirectly owned by Parent.
(g) The Second Merger Sub has only one class of membership interests. All of the issued and outstanding equity interests of Second Merger Sub is, and as of each of the First Effective Time Parent’s Subsidiaries have been duly authorized and Second Effective Time shall be, directly or indirectly owned by Parent..
(h) All of the Parent Subsidiaries, except Merger Subsvalidly issued, are set forth in fully paid and nonassessable and free of preemptive rights, and are owned beneficially and of record by the Parent SEC Documents. Parent owns, directly or indirectly, the capital stock or other equity interests of each Parent SubsidiaryParent, free and clear of any LiensEncumbrances, other than restrictions under applicable securities laws and all of the issued and outstanding shares of capital stock or other equity interests of each Parent Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities.
(i) The Parent Common Stock is listed on the NYSEPermitted Encumbrances. Parent will maintain such listing immediately after Closing.3.4
Appears in 1 contract
Capitalization, Etc. (a) The authorized capital stock of Parent consists of 500,000,000 shares of Parent Common Stock and 10,000,000 shares of preferred stock. As of the date hereofApril 30, the authorized Parent Capital Stock consists solely of 2000, (i) 35 million shares of Class A common stock, (ii) 200 million shares of Class B common stock, and (iii) 10 million 134,213,706 shares of Parent Preferred Stock. A total of 23,921,892 of shares of Parent Class B Common Stock, 787,163 shares of Parent Class A Common Stock were issued and outstanding and no shares of Parent Preferred Stock are preferred stock were issued and outstanding as of the date hereof. As of the date hereof, outstanding; (ii) Parent has had reserved the following an additional 21,291,566 shares of Parent Common Stock for issuance to employeesunder Parent's employee equity incentive plans, non-employee directors and consultants pursuant to the Parent Equity Plan or otherwise: 638,409 shares are subject to outstanding and unexercised of which options to purchase Parent Class B Common Stock, 608,541 shares are subject unvested restricted stock awards, and 171,986 shares remain available for issuance thereunder. The Debt of Parent as of the Parent date hereof is listed in Part 3.2(a) of the Parent Disclosure Schedule.
(b) Except as described in Section 3.2(a) (Capitalization, Etc.), (A) there are no other existing options, warrants, calls, rights (including conversion rights, preemptive rights, co-sale rights, rights of first refusal or other similar rights) issued or granted by Parent, and there are no securities of Parent outstanding which upon conversion or exchange would require, the issuance, sale or transfer of any additional shares of capital stock or other equity securities of Parent or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase acquire 17,198,475 shares of Parent Capital Common Stock or other equity securities of Parent, were outstanding; (Biii) there are no obligations, contingent or otherwise, of Parent to (1) repurchase, redeem or otherwise acquire any had reserved 3,000,000 shares of Parent Capital Common Stock or for purchase under Parent's employee stock purchase plan; (2iv) to make any material investment in (in the form Parent had reserved an additional 1,670,680 shares of a loan, capital contribution or otherwise), or to provide any guarantee (excluding indemnification obligations) with respect to the obligations of, any Person,.
(c) There are no outstanding stock appreciation, phantom stock, profit participation or similar rights with respect to the Parent.
(d) There are no bonds, debentures, notes or other Debt of Parent or its Subsidiaries having the right to vote or consent (or, convertible into, or exchangeable for, securities having the right to vote or consent) on any matters on which holders of Parent Capital Stock may vote. There are no voting trusts, irrevocable proxies or other Contracts or understandings to which Parent, or any holder of the warrants or options to purchase Parent Common Stock is a party or is bound with respect to the voting or consent for issuance upon exercise of any shares of Parent Capital Stock.
outstanding warrants; and (ev) All of the outstanding shares of Parent Capital Stock are and have been duly authorized and validly issued, and are fully paid and nonassessable, are not subject to any preemptive rights, purchase options, call options, rights of first refusal or similar rights or any other Liens and have been issued and granted in all material respects in compliance with all applicable securities Laws and other applicable Laws.
(f) The authorized capital stock of First Merger Sub consists solely of 1,000 shares of common stock, par value $0.01 per share, all of which are validly issued and outstanding. All of the issued and outstanding capital stock of First Merger Sub is, and as of the First Effective Time shall be, directly or indirectly owned by Parent.
(g) The Second Merger Sub has only one class of membership interests. All of the issued and outstanding equity interests of Second Merger Sub is, and as of each of the First Effective Time and Second Effective Time shall be, directly or indirectly owned by Parent..
(h) All of the Parent Subsidiaries, except Merger Subs, are set forth in the Parent SEC Documents. Parent owns, directly or indirectly, the capital stock or other equity interests of each Parent Subsidiary, free and clear of any Liens, and all of the issued and outstanding shares of capital stock or other equity interests of each Parent Subsidiary are Common Stock had been duly authorized and validly issued and are fully paidpaid and nonassessable. Parent is not under any obligation, non-assessable and free nor bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of preemptive and similar rights to subscribe for or purchase securitiesParent Common Stock.
(b) Except as set forth above, as of April 30, 2000 there was no: (i) The outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) Contract under which Parent Common Stock is listed on or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities or (iv) to the NYSE. Parent will maintain Knowledge of Parent, condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such listing immediately after ClosingPerson is entitled to acquire or receive any shares of capital stock or other securities of Parent.
Appears in 1 contract
Samples: Merger Agreement (Internap Network Services Corp/Wa)
Capitalization, Etc. (aA) The authorized share capital of Parent consists of 800,000,000 shares of Parent Ordinary Shares. As of the date hereof5:00 p.m. Pacific Time on May 15, the authorized Parent Capital Stock consists solely of 2008: (i) 35 million 125,364,021 Parent Ordinary Shares were issued and outstanding, of which no shares were unvested or were subject to any repurchase rights, risk of Class A common stock, forfeiture or other similar condition in favor of Parent; (ii) 200 million shares 37,429,273 Parent Ordinary Shares were issuable upon the exercise of Class B common stock, warrants that were issued and outstanding; (iii) 10 million shares 32,702,228 Parent Ordinary Shares were issuable upon the exercise of Parent Preferred Stock. A total of 23,921,892 of shares of Parent Class B Common Stock, 787,163 shares of Parent Class A Common Stock and no shares of Parent Preferred Stock are options that were issued and outstanding; (iv) 57,683,366 Parent Ordinary Shares were issuable upon the conversion of convertible debentures that were outstanding; and (v) 117,763,158 Parent Ordinary Shares were issuable upon the conversion of capital notes that were outstanding as of . Between 5:00 p.m. Pacific Time on May 15, 2008 and the date hereofof this Agreement, Parent has not issued any Parent Ordinary Shares except shares issued upon exercise of outstanding options or warrants or conversion of outstanding convertible debentures. As of the date hereofof this Agreement, in the aggregate, 787,000 Parent has Ordinary Shares were reserved for future issuance pursuant to Parent's equity incentive plans.
(B) All the following outstanding shares of capital stock of Parent Common Stock for issuance and each Subsidiary of Parent have been duly authorized and validly issued and are fully paid and nonassessable.
(C) Except as set forth in Part 3.3(c)(i) of the Parent Disclosure Schedule (i) none of the outstanding shares of capital stock of Parent is entitled or subject to employees, non-employee directors any preemptive right or right of participation; (ii) none of the outstanding shares of the capital stock of Parent is subject to any right of first refusal or similar right in favor of Parent; and consultants pursuant (iii) there is no agreement in place relating to the Parent Equity Plan voting or otherwise: 638,409 registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares are subject of the capital stock of Parent.
(D) Except for options, rights, securities and plans referred to outstanding and unexercised options to purchase Parent Class B Common Stockin Section 3.3(a), 608,541 shares are subject unvested restricted stock awards, and 171,986 shares remain available for issuance thereunder. The Debt of Parent as of the Parent date hereof is listed in of this Agreement and except as set forth on Part 3.2(a3.3(d) of the Parent Disclosure Schedule.
, there is no: (bi) Except as described in Section 3.2(a) (Capitalizationoutstanding subscription, Etc.)option, (A) there are no other existing optionscall, warrants, calls, rights (including conversion rights, preemptive rights, co-sale rights, rights of first refusal warrant or stock appreciation right or other similar rightsright (whether or not currently exercisable) issued or granted by Parent, and there are no securities of Parent outstanding which upon conversion or exchange would require, the issuance, sale or transfer of to acquire any additional shares of the capital stock or other equity securities of Parent or any Subsidiary of Parent; (ii) outstanding restricted stock awards, restricted stock unit awards, performance stock awards or performance cash awards; (iii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent or any Subsidiary of Parent; (iv) contract under which Parent or any Subsidiary of Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (v) to the Knowledge of Parent, condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any capital stock of Parent or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase shares of Parent Capital Stock or other equity securities of Parent, (B) there are no obligations, contingent or otherwise, of Parent to (1) repurchase, redeem or otherwise acquire any shares of Parent Capital Stock or (2) to make any material investment in (in the form of a loan, capital contribution or otherwise), or to provide any guarantee (excluding indemnification obligations) with respect to the obligations of, any Person,.
(c) There are no outstanding stock appreciation, phantom stock, profit participation or similar rights with respect to the Parent.
(dE) There are no bondsAll outstanding shares of capital stock, debenturesoptions, notes warrants, stock appreciation rights and other securities or other Debt equity interests of Parent or its Subsidiaries having the right to vote or consent (or, convertible into, or exchangeable for, have been issued and granted in compliance in all material respects with all applicable securities having the right to vote or consent) on any matters on which holders of Parent Capital Stock may vote. There are no voting trusts, irrevocable proxies or laws and other Contracts or understandings to which Parent, or any holder of the warrants or options to purchase Parent Common Stock is a party or is bound with respect to the voting or consent of any shares of Parent Capital Stockapplicable Legal Requirements.
(eF) All of the outstanding shares equity interests of Parent Capital Stock are and each of Parent's Subsidiaries: (i) have been duly authorized and validly issued, (ii) are nonassessable and are fully paid and nonassessable, are not subject to any free of preemptive rights, purchase options, call options, rights of first refusal or similar rights or any other Liens and have been issued and granted in all material respects in compliance with all applicable securities Laws and other applicable Laws.
(f) The authorized capital stock of First Merger Sub consists solely of 1,000 shares of common stock, par value $0.01 per share, all of which are validly issued and outstanding. All of the issued and outstanding capital stock of First Merger Sub isno obligation to contribute additional capital, and (iii) except as of the First Effective Time shall be, directly or indirectly owned by Parent.
(gset forth in Part 3.3(f) The Second Merger Sub has only one class of membership interests. All of the issued and outstanding equity interests of Second Merger Sub is, and as of each of the First Effective Time and Second Effective Time shall be, directly or indirectly owned by Parent..
(h) All of the Parent Subsidiaries, except Merger SubsDisclosure Schedule, are set forth in the Parent SEC Documents. Parent owns, directly or indirectly, the capital stock or other equity interests owned beneficially and of each Parent Subsidiaryrecord by Parent, free and clear of any Liens, and all of the issued and outstanding shares of capital stock or Encumbrances (other equity interests of each Parent Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securitiesthan Permitted Encumbrances).
(i) The Parent Common Stock is listed on the NYSE. Parent will maintain such listing immediately after Closing.
Appears in 1 contract
Capitalization, Etc. (a) As The authorized capital stock of the date hereof, the authorized Parent Capital Stock consists solely of of: (i) 35 million 19,000,000 shares of Class A common stock, (ii) 200 million shares of Class B common stock, and (iii) 10 million shares of Parent Preferred Stock. A total of 23,921,892 of shares of Parent Class B Common Stock, 787,163 shares of Parent Class A Common Stock and no (with par value $.01), of which 6,959,810 shares of Parent Preferred Stock are have been issued and are outstanding as of the date hereof. As of this Agreement; and (ii) 1,000,000 shares of Preferred Stock (with par value $.01), none of which is outstanding as of the date hereof, Parent has reserved the following shares of Parent Common Stock for issuance to employees, non-employee directors and consultants pursuant to the Parent Equity Plan or otherwise: 638,409 shares are subject to outstanding and unexercised options to purchase Parent Class B Common Stock, 608,541 shares are subject unvested restricted stock awards, and 171,986 shares remain available for issuance thereunderthis Agreement. The Debt of Parent as of the Parent date hereof is listed in Part 3.2(a) of the Parent Disclosure Schedule.
(b) Except as described in Section 3.2(a) (Capitalization, Etc.), (A) there are no other existing options, warrants, calls, rights (including conversion rights, preemptive rights, co-sale rights, rights of first refusal or other similar rights) issued or granted by Parent, and there are no securities of Parent outstanding which upon conversion or exchange would require, the issuance, sale or transfer of any additional shares of capital stock or other equity securities of Parent or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase shares of Parent Capital Stock or other equity securities of Parent, (B) there are no obligations, contingent or otherwise, of Parent to (1) repurchase, redeem or otherwise acquire any shares of Parent Capital Stock or (2) to make any material investment in (in the form of a loan, capital contribution or otherwise), or to provide any guarantee (excluding indemnification obligations) with respect to the obligations of, any Person,.
(c) There are no outstanding stock appreciation, phantom stock, profit participation or similar rights with respect to the Parent.
(d) There are no bonds, debentures, notes or other Debt of Parent or its Subsidiaries having the right to vote or consent (or, convertible into, or exchangeable for, securities having the right to vote or consent) on any matters on which holders of Parent Capital Stock may vote. There are no voting trusts, irrevocable proxies or other Contracts or understandings to which Parent, or any holder of the warrants or options to purchase Parent Common Stock is a party or is bound with respect to the voting or consent of any shares of Parent Capital Stock.
(e) All of the outstanding shares of Parent Capital Common Stock are and have been duly authorized and validly issued, and are fully paid and nonassessablenon-assessable.
(b) Parent has reserved (i) 2,000,000 shares of Parent Common Stock for issuance under its 1997 Equity Incentive Plan, of which options to purchase 879,297 shares are outstanding as of the date of this Agreement; (ii) 525,000 shares of Parent Common Stock for issuance under its 1992 Outside Directors' Plan, of which options to purchase 291,500 shares are outstanding as of the date of this Agreement; (iii) 270,671 shares of Parent Common Stock for issuance under outstanding non-plan stock options; and (iv) 138,000 shares of Parent Common Stock for issuance under outstanding warrants. Except as set forth in this Section 3.4 and in Part 3.4 of the Parent Disclosure Schedule, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not subject currently exercisable) to acquire any preemptive rightsshares of the capital stock or other securities of Parent; (ii) outstanding security, purchase options, call options, rights instrument or obligation that is or may become convertible into or exchangeable for any shares of first refusal the capital stock or similar rights other securities of Parent; (iii) Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other Liens securities; or (iv) to the best of the knowledge of Parent, condition or circumstance that could reasonably be expected to give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent.
(c) All outstanding shares of Parent Common Stock, and all outstanding options and warrants of Parent, have been issued and granted in compliance with (i) all applicable securities laws and other applicable Legal Requirements, and (ii) all material respects requirements set forth in applicable Parent Contracts.
(d) All securities that have been reacquired by Parent were reacquired in compliance with (i) the applicable provisions of the Delaware General Corporation Law and all other applicable Legal Requirements, and (ii) all material requirements set forth in applicable restricted stock purchase agreements and other applicable Parent Contracts.
(e) All of the outstanding shares of capital stock of each of the Parent Subsidiaries are validly issued (in compliance with all applicable securities Laws laws and other Legal Requirements and applicable Laws.
(f) The authorized capital stock of First Merger Sub consists solely of 1,000 shares of common stockParent Contracts), par value $0.01 per share, all of which fully paid and nonassessable and are validly issued and outstanding. All of the issued and outstanding capital stock of First Merger Sub is, and as of the First Effective Time shall be, directly or indirectly owned beneficially by Parent.
(g) The Second Merger Sub has only one class of membership interests. All of the issued and outstanding equity interests of Second Merger Sub is, and as of each of the First Effective Time and Second Effective Time shall be, directly or indirectly owned by Parent..
(h) All of the Parent Subsidiaries, except Merger Subs, are set forth in the Parent SEC Documents. Parent owns, directly or indirectly, the capital stock or other equity interests of each Parent Subsidiary, free and clear of any Liens, and all of the issued and outstanding shares of capital stock or other equity interests of each Parent Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securitiesEncumbrance.
(i) The Parent Common Stock is listed on the NYSE. Parent will maintain such listing immediately after Closing.
Appears in 1 contract
Samples: Merger Agreement (PMR Corp)
Capitalization, Etc. (aA) As The authorized capital stock of the date hereof, the authorized Parent Capital Stock consists solely of of: (i) 35 million 60,000,000 shares of Class A common stockParent Common Stock, of which 14,215,003 shares had been issued and were outstanding as of March 5, 2004; and (ii) 200 million shares of Class B common stock, and (iii) 10 million 3,000,000 shares of Parent Preferred Stock. A total , of 23,921,892 of shares of Parent Class B Common Stock, 787,163 shares of Parent Class A Common Stock and which no shares of Parent Preferred Stock are had been issued and were outstanding as of the date hereofMarch 5, 2004. As of the date hereof, Parent has reserved the following shares of Parent Common Stock for issuance to employees, non-employee directors and consultants pursuant to the Parent Equity Plan or otherwise: 638,409 shares are subject to outstanding and unexercised options to purchase Parent Class B Common Stock, 608,541 shares are subject unvested restricted stock awards, and 171,986 shares remain available for issuance thereunder. The Debt of Parent as of the Parent date hereof is listed in Part 3.2(a) of the Parent Disclosure Schedule.
(b) Except as described in Section 3.2(a) (Capitalization, Etc.), (A) there are no other existing options, warrants, calls, rights (including conversion rights, preemptive rights, co-sale rights, rights of first refusal or other similar rights) issued or granted by Parent, and there are no securities of Parent outstanding which upon conversion or exchange would require, the issuance, sale or transfer of any additional shares of capital stock or other equity securities of Parent or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase shares of Parent Capital Stock or other equity securities of Parent, (B) there are no obligations, contingent or otherwise, of Parent to (1) repurchase, redeem or otherwise acquire not repurchased any shares of Parent Capital Stock or (2) its capital stock subsequent to make any material investment in (in the form of a loanMarch 5, capital contribution or otherwise), or to provide any guarantee (excluding indemnification obligations) with respect to the obligations of, any Person,.
(c) There are no outstanding stock appreciation, phantom stock, profit participation or similar rights with respect to the Parent.
(d) There are no bonds, debentures, notes or other Debt of Parent or its Subsidiaries having the right to vote or consent (or, convertible into, or exchangeable for, securities having the right to vote or consent) on any matters on which holders of Parent Capital Stock may vote2004. There are no voting trusts, irrevocable proxies or other Contracts or understandings to which Parent, or any holder of the warrants or options to purchase Parent Common Stock is a party or is bound with respect to the voting or consent of any shares of Parent Capital Stock.
(e) All of the outstanding shares of Parent Capital Common Stock are and have been duly authorized and validly issued, and are fully paid and nonassessable, are not . None of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive rightsright, purchase options, call options, rights right of first refusal or similar rights offer or any other Liens and have been issued and granted in all material respects in compliance similar right created by Parent or imposed under applicable law with all applicable securities Laws and other applicable Laws.
(f) The authorized respect to capital stock of First Merger Sub consists solely of 1,000 shares of common stock, par value $0.01 per share, all of which are validly issued and outstandingParent. All None of the issued and outstanding capital stock of First Merger Sub is, and as of the First Effective Time shall be, directly or indirectly owned by Parent.
(g) The Second Merger Sub has only one class of membership interests. All of the issued and outstanding equity interests of Second Merger Sub is, and as of each of the First Effective Time and Second Effective Time shall be, directly or indirectly owned by Parent..
(h) All of the Parent Subsidiaries, except Merger Subs, are set forth in the Parent SEC Documents. Parent owns, directly or indirectly, the capital stock or other equity interests of each Parent Subsidiary, free and clear of any Liens, and all of the issued and outstanding shares of capital stock or other equity interests of each Parent Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities.
(i) The Parent Common Stock is listed on subject to any right of first refusal in favor of Parent. There is no Parent Contract relating to the NYSEvoting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Parent will maintain such listing immediately after Closingis not under any obligation, or is bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock.
(B) As of March 5, 2004: (i) 3,288,696 shares of Parent Common Stock were subject to issuance pursuant to outstanding options to purchase shares of Parent Common Stock; and (ii) 116,865 shares of Parent Common Stock were reserved for future issuance pursuant to Parent's Employee Stock Purchase Plan.
(C) Except as set forth in Section 3.3(b), as of March 5, 2004, there was no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire
Appears in 1 contract
Capitalization, Etc. (a) As of the date hereof, the authorized Parent Capital Stock consists solely of (i) 35 million shares of Class A common stock, (ii) 200 million shares of Class B common stock, and (iii) 10 million shares of Parent Preferred Stock. A total of 23,921,892 of shares of Parent Class B Common Stock, 787,163 shares of Parent Class A Common Stock and no shares of Parent Preferred Stock are issued and outstanding as of the date hereof. As of the date hereof, Parent has reserved the following shares of Parent Common Stock for issuance to employees, non-employee directors and consultants pursuant to the Parent Equity Plan or otherwise: 638,409 shares are subject to outstanding and unexercised options to purchase Parent Class B Common Stock, 608,541 shares are subject unvested restricted stock awards, and 171,986 shares remain available for issuance thereunder. The Debt of Parent as of the Parent date hereof is listed in Part 3.2(a) of the Parent Disclosure Schedule.
(b) Except as described in Section 3.2(a) (Capitalization, Etc.), (A) there are no other existing options, warrants, calls, rights (including conversion rights, preemptive rights, co-sale rights, rights of first refusal or other similar rights) issued or granted by Parent, and there are no securities of Parent outstanding which upon conversion or exchange would require, the issuance, sale or transfer of any additional shares of capital stock or other equity securities of Parent or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase shares of Parent Capital Stock or other equity securities of Parent, (B) there are no obligations, contingent or otherwise, of Parent to (1) repurchase, redeem or otherwise acquire any shares of Parent Capital Stock or (2) to make any material investment in (in the form of a loan, capital contribution or otherwise), or to provide any guarantee (excluding indemnification obligations) with respect to the obligations of, any Person,.
(c) There are no outstanding stock appreciation, phantom stock, profit participation or similar rights with respect to the Parent.
(d) There are no bonds, debentures, notes or other Debt of Parent or its Subsidiaries having the right to vote or consent (or, convertible into, or exchangeable for, securities having the right to vote or consent) on any matters on which holders of Parent Capital Stock may vote. There are no voting trusts, irrevocable proxies or other Contracts or understandings to which Parent, or any holder of the warrants or options to purchase Parent Common Stock is a party or is bound with respect to the voting or consent of any shares of Parent Capital Stock.
(e) All of the outstanding shares of Parent Capital Stock are and have been duly authorized and validly issued, and are fully paid and nonassessable, are not subject to any preemptive rights, purchase options, call options, rights of first refusal or similar rights or any other Liens and have been issued and granted in all material respects in compliance with all applicable securities Laws and other applicable Laws.
(f) The authorized capital stock of First Merger Sub consists solely of 1,000 shares of common stock, par value $0.01 per share, all of which are validly issued and outstanding. All of the issued and outstanding capital stock of First Merger Sub is, and as of the First Effective Time shall be, directly or indirectly owned by Parent.
(g) The Second Merger Sub has only one class of membership interests. All of the issued and outstanding equity interests of Second Merger Sub is, and as of each of the First Effective Time and Second Effective Time shall be, directly or indirectly owned by Parent...
(h) All of the Parent Subsidiaries, except Merger Subs, are set forth in the Parent SEC Documents. Parent owns, directly or indirectly, the capital stock or other equity interests of each Parent Subsidiary, free and clear of any Liens, and all of the issued and outstanding shares of capital stock or other equity interests of each Parent Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities.
(i) The Parent Common Stock is listed on the NYSE. Parent will maintain such listing immediately after Closing.
Appears in 1 contract
Capitalization, Etc. (a) The authorized share capital of Parent consists of 800,000,000 shares of Parent Ordinary Shares. As of the date hereof5:00 p.m. Pacific Time on May 15, the authorized Parent Capital Stock consists solely of 2008: (i) 35 million 125,364,021 Parent Ordinary Shares were issued and outstanding, of which no shares were unvested or were subject to any repurchase rights, risk of Class A common stock, forfeiture or other similar condition in favor of Parent; (ii) 200 million shares 37,429,273 Parent Ordinary Shares were issuable upon the exercise of Class B common stock, warrants that were issued and outstanding; (iii) 10 million shares 32,702,228 Parent Ordinary Shares were issuable upon the exercise of Parent Preferred Stock. A total of 23,921,892 of shares of Parent Class B Common Stock, 787,163 shares of Parent Class A Common Stock and no shares of Parent Preferred Stock are options that were issued and outstanding; (iv) 57,683,366 Parent Ordinary Shares were issuable upon the conversion of convertible debentures that were outstanding; and (v) 117,763,158 Parent Ordinary Shares were issuable upon the conversion of capital notes that were outstanding as of .. Between 5:00 p.m. Pacific Time on May 15, 2008 and the date hereofof this Agreement, Parent has not issued any Parent Ordinary Shares except shares issued upon exercise of outstanding options or warrants or conversion of outstanding convertible debentures. As of the date hereofof this Agreement, in the aggregate, 787,000 Parent has Ordinary Shares were reserved for future issuance pursuant to Parent’s equity incentive plans.
(b) All the following outstanding shares of capital stock of Parent Common Stock for issuance and each Subsidiary of Parent have been duly authorized and validly issued and are fully paid and nonassessable.
(c) Except as set forth in Part 3.3(c)(i) of the Parent Disclosure Schedule (i) none of the outstanding shares of capital stock of Parent is entitled or subject to employees, non-employee directors any preemptive right or right of participation; (ii) none of the outstanding shares of the capital stock of Parent is subject to any right of first refusal or similar right in favor of Parent; and consultants pursuant (iii) there is no agreement in place relating to the Parent Equity Plan voting or otherwise: 638,409 registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares are subject of the capital stock of Parent.
(d) Except for options, rights, securities and plans referred to outstanding and unexercised options to purchase Parent Class B Common Stockin Section 3.3(a), 608,541 shares are subject unvested restricted stock awards, and 171,986 shares remain available for issuance thereunder. The Debt of Parent as of the Parent date hereof is listed in of this Agreement and except as set forth on Part 3.2(a3.3(d) of the Parent Disclosure Schedule.
, there is no: (bi) Except as described in Section 3.2(a) (Capitalizationoutstanding subscription, Etc.)option, (A) there are no other existing optionscall, warrants, calls, rights (including conversion rights, preemptive rights, co-sale rights, rights of first refusal warrant or stock appreciation right or other similar rightsright (whether or not currently exercisable) issued or granted by Parent, and there are no securities of Parent outstanding which upon conversion or exchange would require, the issuance, sale or transfer of to acquire any additional shares of the capital stock or other equity securities of Parent or any Subsidiary of Parent; (ii) outstanding restricted stock awards, restricted stock unit awards, performance stock awards or performance cash awards; (iii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent or any Subsidiary of Parent; (iv) contract under which Parent or any Subsidiary of Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other securities; or (v) to the Knowledge of Parent, condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any capital stock of Parent or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase shares of Parent Capital Stock or other equity securities of Parent, (B) there are no obligations, contingent or otherwise, of Parent to (1) repurchase, redeem or otherwise acquire any shares of Parent Capital Stock or (2) to make any material investment in (in the form of a loan, capital contribution or otherwise), or to provide any guarantee (excluding indemnification obligations) with respect to the obligations of, any Person,.
(c) There are no outstanding stock appreciation, phantom stock, profit participation or similar rights with respect to the Parent.
(d) There are no bonds, debentures, notes or other Debt of Parent or its Subsidiaries having the right to vote or consent (or, convertible into, or exchangeable for, securities having the right to vote or consent) on any matters on which holders of Parent Capital Stock may vote. There are no voting trusts, irrevocable proxies or other Contracts or understandings to which Parent, or any holder of the warrants or options to purchase Parent Common Stock is a party or is bound with respect to the voting or consent of any shares of Parent Capital Stock.
(e) All outstanding shares of capital stock, options, warrants, stock appreciation rights and other securities or equity interests of Parent have been issued and granted in compliance in all material respects with all applicable securities laws and other applicable Legal Requirements.
(f) All of the outstanding shares equity interests of Parent Capital Stock are and each of Parent’s Subsidiaries: (i) have been duly authorized and validly issued, (ii) are nonassessable and are fully paid and nonassessable, are not subject to any free of preemptive rights, purchase options, call options, rights of first refusal or similar rights or any other Liens and have been issued and granted in all material respects in compliance with all applicable securities Laws and other applicable Laws.
(f) The authorized capital stock of First Merger Sub consists solely of 1,000 shares of common stock, par value $0.01 per share, all of which are validly issued and outstanding. All of the issued and outstanding capital stock of First Merger Sub isno obligation to contribute additional capital, and (iii) except as of the First Effective Time shall be, directly or indirectly owned by Parent.
(gset forth in Part 3.3(f) The Second Merger Sub has only one class of membership interests. All of the issued and outstanding equity interests of Second Merger Sub is, and as of each of the First Effective Time and Second Effective Time shall be, directly or indirectly owned by Parent..
(h) All of the Parent Subsidiaries, except Merger SubsDisclosure Schedule, are set forth in the Parent SEC Documents. Parent owns, directly or indirectly, the capital stock or other equity interests owned beneficially and of each Parent Subsidiaryrecord by Parent, free and clear of any Liens, and all of the issued and outstanding shares of capital stock or Encumbrances (other equity interests of each Parent Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securitiesthan Permitted Encumbrances).
(i) The Parent Common Stock is listed on the NYSE. Parent will maintain such listing immediately after Closing.
Appears in 1 contract
Capitalization, Etc. (a) As of the date hereofAugust 9, 2007, the authorized capital stock of Parent Capital Stock consists solely of of: (i) 35 million 500,000,000 shares of Class A common stockParent Common Stock, of which 194,754,373 shares of Parent Common Stock have been issued and were outstanding; and (ii) 200 million shares of Class B common stock, and (iii) 10 million 5,000,000 shares of Parent Preferred Stock. A total , of 23,921,892 of shares of Parent Class B Common Stock, 787,163 shares of Parent Class A Common Stock and which no shares of Parent Preferred Stock are have been issued and outstanding as of the date hereofor were outstanding. As of the date hereofAugust 9, Parent has reserved the following 2007: (A) 3,261,480 shares of Parent Common Stock were reserved for future issuance pursuant to Parent’s Employee Stock Purchase Plan (the “Parent ESPP”); (B) 28,227,635 shares of Parent Common Stock were reserved for issuance to employees, non-employee directors and consultants pursuant to the exercise of outstanding awards, warrants and other rights to acquire shares of Parent Equity Plan or otherwise: 638,409 shares are subject to outstanding and unexercised options to purchase Parent Class B Common Stock, 608,541 ; and (C) 13,456,031 shares are subject unvested restricted stock awards, and 171,986 shares remain available for issuance thereunder. The Debt of Parent as of the Parent date hereof is listed in Part 3.2(a) of the Parent Disclosure ScheduleCommon Stock were reserved for future issuance pursuant to awards not yet granted under Pxxxxx’s equity incentive and stock option plans.
(b) Except as described in Section 3.2(a) (Capitalization, Etc.), (A) there are no other existing options, warrants, calls, rights (including conversion rights, preemptive rights, co-sale rights, rights None of first refusal or other similar rights) issued or granted by Parent, and there are no securities of Parent the outstanding which upon conversion or exchange would require, the issuance, sale or transfer of any additional shares of capital stock or other equity securities of Parent or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase shares of Parent Capital Common Stock is entitled or other equity securities subject to any preemptive right, right of Parentparticipation, right of maintenance or any similar right; (B) there are is no obligationsContract to which Parent is a party relating to the voting or registration of, contingent or otherwiserestricting any Person from purchasing, selling, pledging or otherwise disposing of (or from granting any option or similar right with respect to), any shares of Parent Common Stock; and (C) Parent is not under any obligation, nor is Parent bound by any Contract pursuant to (1) which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Capital Common Stock or (2) other securities, except for Parent’s rights pursuant to make any material investment its equity incentive plans and director stock option plans to repurchase, redeem or otherwise acquire restricted shares of Parent Common Stock or other securities held by participants in (in the form of a loan, capital contribution or otherwise), or to provide any guarantee (excluding indemnification obligations) with respect to the obligations of, any Person,such plans.
(c) There are no outstanding stock appreciation, phantom stock, profit participation or similar rights with respect to the Parent.
(d) There are no bonds, debentures, notes or other Debt of Parent or its Subsidiaries having the right to vote or consent (or, convertible into, or exchangeable for, securities having the right to vote or consent) on any matters on which holders of Parent Capital Stock may vote. There are no voting trusts, irrevocable proxies or other Contracts or understandings to which Parent, or any holder of the warrants or options to purchase Parent Common Stock is a party or is bound with respect to the voting or consent of any shares of Parent Capital Stock.
(e) All of the outstanding shares of Parent Capital Common Stock are and have been duly authorized and validly issued, and are fully paid and nonassessable.
(d) Except as set forth in Section 3.2(a), are as of the date of this Agreement, there is no: (i) outstanding subscription, option, call, warrant or right (whether or not subject currently exercisable) to acquire any preemptive rightsshares of the capital stock or other securities of Parent; (ii) outstanding security, purchase options, call options, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; or (iii) stockholder rights of first refusal plan (or similar rights plan commonly referred to as a “poison pill”) or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other Liens securities.
(e) All outstanding shares of Parent Common Stock, and all awards and other securities of Parent, have been issued and granted in all material respects in compliance with with: (i) all applicable securities Laws laws and other applicable Laws.
Legal Requirements; and (fii) The authorized capital stock of First Merger Sub consists solely of 1,000 shares of common stock, par value $0.01 per share, all of which are validly issued and outstanding. All of the issued and outstanding capital stock of First Merger Sub is, and as of the First Effective Time shall be, directly or indirectly owned by Parent.
(g) The Second Merger Sub has only one class of membership interests. All of the issued and outstanding equity interests of Second Merger Sub is, and as of each of the First Effective Time and Second Effective Time shall be, directly or indirectly owned by Parent..
(h) All of the Parent Subsidiaries, except Merger Subs, are material requirements set forth in the Parent SEC Documents. Parent owns, directly or indirectly, the capital stock or other equity interests of each Parent Subsidiary, free and clear of any Liens, and all of the issued and outstanding shares of capital stock or other equity interests of each Parent Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securitiesapplicable Contracts.
(i) The Parent Common Stock is listed on the NYSE. Parent will maintain such listing immediately after Closing.
Appears in 1 contract
Capitalization, Etc. (a) As The authorized capital stock of the date hereof, the authorized Parent Capital Stock consists solely of of: (i) 35 million 125,000,000 shares of Class A common stock, Parent Common Stock; and (ii) 200 million shares of Class B common stock, and (iii) 10 million 2,000,000 shares of Parent Preferred Stock. A total As of 23,921,892 October 18, 1999, 41,913,459 (net of 1,276,895 treasury shares) shares of Parent Class B Common Stock, 787,163 shares of Parent Class A Common Stock were issued and outstanding. As of the date of this Agreement, no shares of Parent Preferred Stock are issued and outstanding as of the date hereofor outstanding. As of the date hereof, Parent has reserved the following shares of Parent Common Stock for issuance to employees, non-employee directors and consultants pursuant to the Parent Equity Plan or otherwise: 638,409 shares are subject to outstanding and unexercised options to purchase Parent Class B Common Stock, 608,541 shares are subject unvested restricted stock awards, and 171,986 shares remain available for issuance thereunder. The Debt of Parent as of the Parent date hereof is listed in Part 3.2(a) of the Parent Disclosure Schedule.
(b) Except as described in Section 3.2(a) (Capitalization, Etc.), (A) there are no other existing options, warrants, calls, rights (including conversion rights, preemptive rights, co-sale rights, rights of first refusal or other similar rights) issued or granted by Parent, and there are no securities of Parent outstanding which upon conversion or exchange would require, the issuance, sale or transfer of any additional shares of capital stock or other equity securities of Parent or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase shares of Parent Capital Stock or other equity securities of Parent, (B) there are no obligations, contingent or otherwise, of Parent to (1) repurchase, redeem or otherwise acquire any shares of Parent Capital Stock or (2) to make any material investment in (in the form of a loan, capital contribution or otherwise), or to provide any guarantee (excluding indemnification obligations) with respect to the obligations of, any Person,.
(c) There are no outstanding stock appreciation, phantom stock, profit participation or similar rights with respect to the Parent.
(d) There are no bonds, debentures, notes or other Debt of Parent or its Subsidiaries having the right to vote or consent (or, convertible into, or exchangeable for, securities having the right to vote or consent) on any matters on which holders of Parent Capital Stock may vote. There are no voting trusts, irrevocable proxies or other Contracts or understandings to which Parent, or any holder of the warrants or options to purchase Parent Common Stock is a party or is bound with respect to the voting or consent of any shares of Parent Capital Stock.
(e) All of the outstanding shares of Parent Capital Common Stock are and have been duly authorized and validly issued, and are fully paid and nonassessable, are not . Except as set forth in Part 3.3(a)(i) of the Parent Disclosure Schedule: (i) none of the outstanding shares of Parent Common Stock is entitled or subject to any preemptive rightsright, purchase optionsright of participation, call options, rights right of maintenance or any similar right; (ii) none of the outstanding shares of Parent Common Stock is subject to any right of first refusal in favor of Parent; and (iii) there is no Contract to which Parent is a party relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Parent Common Stock. Parent is not under any obligation, nor bound by any Contract pursuant to which it may become obligated, to repurchase, redeem or otherwise acquire any outstanding shares of Parent Common Stock.
(b) As of the date of this Agreement: (i) 6,438,459 shares of Parent Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under Parent's Amended and Restated 1987 Equity Incentive Plan; (ii) 320,625 shares of Parent Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under Parent's 1995 Non-Employee Directors' Stock Option Plan; (iii) 3,450,000 shares of Parent Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under Parent's 1998 Non-Officer Stock Option Plan; (iv) 1,500,000 shares of Parent Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under Parent's 1998 Equity Incentive Plan; (v) 245,586 shares of Parent Common Stock are reserved for future issuance pursuant to stock options granted and outstanding under the 1994 RouterWare Stock Option Plan; (vi) 401,141 shares of Parent Common Stock are reserved for future issuance pursuant to Parent's Employee Stock Purchase Plan; and (vii) 4,329,897 shares of Parent Common Stock are reserved for future issuance upon conversion of 5% Convertible Subordinated Notes due 2002. (Stock options granted by Parent pursuant to Parent's stock option plans and otherwise are referred to in this Agreement as "Parent Options").
(c) Except as set forth in Section 3.3(b), as of the date of this Agreement there is no: (i) outstanding subscription, option, call, warrant or right (whether or not currently exercisable) to acquire any shares of the capital stock or other securities of Parent; (ii) outstanding security, instrument or obligation that is or may become convertible into or exchangeable for any shares of the capital stock or other securities of Parent; (iii) shareholder rights plan (or similar plan commonly referred to as a "poison pill") or Contract under which Parent is or may become obligated to sell or otherwise issue any shares of its capital stock or any other Liens securities; or (iv) condition or circumstance that may give rise to or provide a basis for the assertion of a claim by any Person to the effect that such Person is entitled to acquire or receive any shares of capital stock or other securities of Parent.
(d) All outstanding shares of Parent Common Stock, all outstanding Parent Options and all outstanding shares of capital stock of each Subsidiary of Parent have been issued and granted in all material respects in compliance with (i) all applicable securities Laws laws and other applicable Laws.
(f) The authorized capital stock of First Merger Sub consists solely of 1,000 shares of common stock, par value $0.01 per share, all of which are validly issued and outstanding. All of the issued and outstanding capital stock of First Merger Sub isLegal Requirements, and as of the First Effective Time shall be, directly or indirectly owned by Parent.
(gii) The Second Merger Sub has only one class of membership interests. All of the issued and outstanding equity interests of Second Merger Sub is, and as of each of the First Effective Time and Second Effective Time shall be, directly or indirectly owned by Parent..
(h) All of the Parent Subsidiaries, except Merger Subs, are all requirements set forth in the Parent SEC Documents. Parent owns, directly or indirectly, the capital stock or other equity interests of each Parent Subsidiary, free and clear of any Liens, and all of the issued and outstanding shares of capital stock or other equity interests of each Parent Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securitiesapplicable Contracts.
(i) The Parent Common Stock is listed on the NYSE. Parent will maintain such listing immediately after Closing.
Appears in 1 contract
