Capitalization Matters. 3.3.1. Immediately prior to the Initial Closing, the total authorized capital stock of the Company, consists of: (a) 100,000,000 shares of Common Stock, of which 19,363,539 shares are issued and outstanding; and (b) 5,000,000 shares of Preferred Stock, of which none are issued and outstanding.
3.3.2. Immediately prior to the Initial Closing, the authorized, issued and outstanding capital stock of the Company is as set forth in Exhibit D hereto and (a) all issued and outstanding shares of capital stock of the Company have been duly authorized and validly issued, (b) are fully paid and nonassessable, and (c) were issued in compliance with all applicable state and federal laws concerning the issuance of securities. Except for the securities issued or issuable pursuant to this Agreement, (i) there are no outstanding securities of the Company which contain any preemptive, redemption or similar provisions, nor is any holder of securities of the Company entitled to preemptive or similar rights arising out of any agreement or understanding with the Company, and there are no contracts, commitments, understandings or arrangements by which the Company is or may become bound to redeem any of its outstanding capital stock, (ii) the Company does not have any stock appreciation rights or "phantom stock" plans or agreements or any similar plan or agreement; and (iii) except as set forth in Exhibit D there are no outstanding options, warrants, agreements, convertible securities, preemptive rights or other rights to subscribe for or to purchase or acquire, any shares of capital stock of the Company or contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue any shares of capital stock, or securities or rights convertible or exchangeable into shares of capital stock. Except as otherwise required by law, there are no restrictions upon the voting or transfer of any of the shares of capital stock of the Company pursuant to its Organizational Documents or any agreement or other instruments to which it is a party or by which it is bound. The issuance and sale of the Units as contemplated hereby will not obligate the Company to issue shares of Common Stock or other securities to any other person (other than the Purchasers and the Placement Agent) and will not result in the adjustment of the exercise, conversion, exchange or reset price of any outstanding security. There are no proxies, stockholder agreements, or any other agreem...
Capitalization Matters. 3.7.1. Prior to any Credit Extension subsequent to the initial Credit Extension, Borrower shall have issued to Banyan Mezzanine Fund, L.P. (“Banyan”), and certain other investors, if applicable, subordinated debentures and warrants of Borrower, for an initial aggregate purchase price of $1,500,000, and otherwise subject to terms and conditions acceptable to Bank in its discretion. Such terms and conditions shall include that the subordinated debentures and warrants referred to in the foregoing sentence shall be Subordinated Debt, pursuant to the provisions of an intercreditor and/or subordination agreement, in form and substance satisfactory to Bank, between or among Bank and Banyan and such other investors, if applicable. Additional, subsequent subordinated debentures and warrants are anticipated in the future and Borrower hereby agrees that such subsequent subordinated debentures and warrants shall be subject to terms and conditions acceptable to Bank in its discretion and shall be Subordinated Debt pursuant to the provisions of an intercreditor and/or subordination agreement, in form and substance satisfactory to the Bank.
3.7.2. Prior to the initial Credit Extension, Borrower shall have issued to Xxxx Xxxxxxxx, Xxxxxx Xxxxxxxxx and Xxxxxxx Xxxxxxxxxx, one or more seller notes of Borrower, for an aggregate purchase price of $1,500,000, which note(s) shall provide that it (they) is (are) not to be outstanding for more than 30 days, shall be fully repaid from the proceeds of the initial subordinated debentures and warrants issued to Banyan as described in the foregoing Section 3.7.1, shall be unsecured, shall not permit any collection under the seller note and shall convert to common stock in the Borrower in the event of a default. These seller notes shall be Subordinated Debt, pursuant to the terms and conditions of the notes themselves, and shall otherwise be in form and substance satisfactory to Bank in its sole discretion, including, without limitation, the subordination provisions thereof.
Capitalization Matters. Issue or sell any shares of its capital stock, effect any stock split or otherwise change its capitalization as it exists on the date of this Agreement, or issue, grant, or sell any options, stock appreciation or purchase rights, warrants, conversion rights or other rights, securities or commitments obligating it to issue or sell any shares of its capital stock, or any securities or obligations convertible into, or exercisable or exchangeable for, any shares of its capital stock, other than the issuance of shares of Common Stock pursuant to the 28 Confidential Treatment Requested conversion, exercise or exchange of securities therefore outstanding as of the date of this Agreement in accordance with their terms, or form any Subsidiary or acquire any equity interest in any other Person; (c)
Capitalization Matters. Each Shareholder is the beneficial and record owner of all right, title and interest in and to the Capital Stock set forth opposite such Shareholder’s name on Schedule 3.1. The shares of Capital Stock are free and clear of any Lien and are not subject to any restriction with respect to their transferability (other than restrictions set forth in this Agreement or under applicable federal and state securities laws). No Shareholder has granted to any third party any rights in the Capital Stock. Except for the shares of Capital Stock there are no other Equity Interests in or to the Company or other agreements of any character requiring the issuance, sale, registration, voting or transfer of any shares of Capital Stock or other interest of the Company, including, without limitation, any other securities or any instruments convertible into or exchangeable or exercisable for securities of the Company. Following the consummation of the transactions contemplated hereby at Closing, Purchaser will be the sole holder (beneficially and of record) of all Equity Interests in or to the Company.
Capitalization Matters. (i) issuing shares of capital stock or securities convertible into shares, or warrants, options or other rights to acquire shares or limited liability interests, partnership interests or Interests (including Common Units and Profits Interest Units, but not including Class B Units) in the Company or any of its Subsidiaries (including any such actions taken in connection with the admission of an Additional Member under Section 3.9, but excluding any issuances to the Company or a wholly-owned Subsidiary of the Company); provided, that, in any such case, issuance of Interests shall be subject to Section 6.4(b);
(ii) repurchasing any Interests in the Company (including exercising any “Call Option” available to the Company pursuant to the terms of the Management Profits Interest Unit Agreements) or any shares of capital stock or securities convertible into shares of capital stock of any Subsidiary of the Company, except as contractually required by a Management Profits Interest Unit Agreement;
(iii) issuing a material amount of indebtedness for borrowed money or guaranteeing the obligations of third parties; and/or securing any such borrowings, indebtedness and/or guaranties by pledges or other liens on any material assets of the Company or any of its Subsidiaries, in each case, except for any such actions taken in the ordinary course of business (including, without limitation, issuing or incurring of customer related indebtedness, or other forms of bank liabilities, creating deposit liabilities, purchasing of federal funds, selling certificates of deposit, entering into repurchase agreements or issuing letters of credit, in each case, in the ordinary course of business) or as otherwise contemplated in any Annual Budget approved pursuant to this Section 4.11;
(iv) initiating an Initial Public Offering, IPO Conversion or IPO Liquidation;
Capitalization Matters. Issue or sell any shares of its capital stock, effect any stock split or otherwise change its capitalization as it exists on the date hereof, or issue, grant, or sell any options, stock appreciation or purchase rights, warrants, conversion rights or other rights, securities or commitments obligating it to issue or sell any shares of its capital stock, or any securities or obligations convertible into, or exercisable or exchangeable for, any shares of its capital stock, other than the issuance of shares of Common Stock pursuant to the conversion, exercise or exchange of securities therefore outstanding as of the date hereof in accordance with their terms;
Capitalization Matters. 3.3.1. Immediately prior to the Initial Closing and any Subsequent Closing, if and as applicable, the total authorized capital stock of the Company, consists of: (a) 100,000,000 shares of common stock; and (b) 10,000,000 shares of preferred stock, of which none are issued and outstanding.
3.3.2. Immediately prior to the Initial Closing and any Subsequent Closing, if and as applicable, the authorized, issued and outstanding capital stock of the Company is, as set forth on Schedule 3.3.2 and all issued and outstanding shares of capital stock of the Company (a) have been duly authorized and validly issued, (b) are fully paid and nonassessable, and (c) were, in all material respects, issued in compliance with all applicable state and federal laws concerning the issuance of securities. Except as set forth on Schedule 3.3.2, (i) there are no outstanding securities of the Company which contain any preemptive, redemption or similar provisions, nor is any holder of securities of the Company entitled to preemptive or similar rights arising out of any agreement or understanding with the Company by virtue of any of the Transaction Documents, and there are no contracts, commitments, understandings or arrangements by which the Company is or may become bound to redeem a Securities of the Company (ii) the Company does not have any stock appreciation rights or "phantom stock" plans or agreements or any similar plan or agreement; and (iii) except as set forth on Schedule 3.3.2, there are no outstanding options, warrants, agreements, convertible securities, preemptive rights or other rights to subscribe for or to purchase or acquire, any shares of capital stock of the Company or contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue any shares of capital stock of the Company, or securities or rights convertible or exchangeable into shares of capital stock of the Company. Except as required by law, including any federal securities rules and regulations, there are no restrictions upon the voting or transfer of any of the shares of capital stock of the Company pursuant to its Organizational Documents or other governing documents or any agreement or other instruments to which the Company is a party or by which it is bound. The issuance and sale of the Securities as contemplated hereby will not obligate the Company to issue shares of common stock or other securities to any other person (other than the Purchaser) and will not r...
Capitalization Matters. The capitalization of the Company is as set forth on Schedule 3.1(g). No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents. Except as set forth on Schedule 3.1(g), other than as a result of the purchase and sale of the Securities and the Company Preferred Stock, there are no outstanding options, warrants, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Company Common Stock, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of Company Common Stock or Common Stock Equivalents. Except for the issuance and sale of the Company Preferred Stock, the issuance and sale of the Securities will not obligate the Company to issue shares of Company Common Stock or other securities to any Person (other than the Purchasers) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under such securities. All of the outstanding shares of capital stock of the Company are validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder, the Board of Directors of the Company or others is required for the issuance and sale of the Securities or the Company Preferred Stock. Except as set forth on Schedule 3.1(g), there are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders.
Capitalization Matters. (i) issuing any Company Securities, other than (i) pursuant to a management equity plan approved by the Board and (ii) pursuant to a Subsequent Drawdown;
(ii) repurchasing any Company Securities;
(iii) issuing a material amount of Debt Securities or any other form of indebtedness for borrowed money or guaranteeing the obligations of third parties, and/or securing any such borrowings, indebtedness and/or guaranties by pledges or other liens on any assets of the Company or any of its Subsidiaries (including equity interests in any Person), except in each of the foregoing cases as otherwise contemplated in any Annual Budget approved by the Board;
(iv) initiating a Public Offering; or
(v) Notwithstanding anything to the contrary in this Section 2.09, the Board may, in its sole discretion, and in accordance with the Charter and Bylaws, authorize any issuance or sale of Company Securities to the extent such sale or issuance is necessary to enable the Company or the Bank to comply with any directive of any Regulatory Authority.
Capitalization Matters. The authorized capital stock of Datavantage consists of 350,000 shares of common stock, no par value, 225,000 of which are shares of Class A common stock, 106,384 of which are issued and outstanding, and 125,000 of which are shares of Class B common stock, 60,284 of which are issued and outstanding. The authorized capital stock of DV Technology consists of 350,000 shares of common stock, no par value, 225,000 of which are shares of Class A common stock, 100,000 of which are issued and outstanding, and 125,000 of which are shares of Class B common stock, 16,667 of which are issued and outstanding. All of the outstanding Shares are duly authorized and validly issued, fully paid and nonassessable and are owned by the Stockholders as set forth on Schedule 4.3. Except as set forth above, there are no shares of capital stock or other equity securities of the Companies outstanding. The outstanding Shares have not been issued in violation of, and are not subject to, any preemptive or subscription rights. Except as disclosed on Schedule 4.3, there are no outstanding options, warrants, calls, agreements, subscriptions, phantom stock rights, convertible or exchangeable securities, or other commitments of any character pursuant to which the Stockholders or the Companies are or may become obligated to issue, sell, purchase, return, or redeem any securities of the Companies, other than this Agreement, and no equity securities of the Companies are reserved for issuance for any purpose. Any item disclosed on Schedule 4.3 shall be terminated on or before the Closing Date.
