Capitalization of Company On the Effective Date, Company will have no Capital Stock outstanding other than the Common Stock and rights outstanding under the Shareholder Rights Plan. All outstanding shares of capital stock of Company have been duly authorized and validly issued and are fully paid and non-assessable.
Capitalization, Etc (a) The authorized capital stock of the Company consists of: (i) 175,000,000 shares of Company Common Stock, of which 76,904,133 shares have been issued and are outstanding as of the date of this Agreement; and (ii) 10,000,000 shares of Preferred Stock, $.001 par value per share, (A) 170,000 shares of which have been designated "Series A Preferred Stock," none of which are outstanding as of the date of this Agreement, (B) 230,000 shares of which have been designated "Series B Preferred Stock," none of which are outstanding as of the date of this Agreement and (C) 1,200,000 of which have been designated "Series B Junior Participating Preferred Stock," none of which are outstanding as of the date of this Agreement. The Company does not hold any shares of its capital stock in its treasury. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. There are no shares of Company Common Stock held by either of the Company's Subsidiaries. None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right. None of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor of any of the Acquired Corporations. There is no Acquired Corporation Contract 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 Company Common Stock. None of the Acquired 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 Company Common Stock.
(b) As of the date of this Agreement: (i) all of the shares of the Company's Series B Junior Participating Preferred Stock are reserved for future issuance upon exercise of the rights (the "Rights") issued pursuant to the Rights Agreement, dated as of February 1, 1999 between the Company and American Stock Transfer & Trust Company, as Rights Agent (as amended by that certain Amendment to Rights Agreement, dated as of June 2, 1999, that certain Amendment to Rights Agreement, dated as of August 24, 2001, and that certain Amendment to Rights Agreement, dated as of July 30, 2002, the "Company Rights Agreement"); (ii) 10,953,922 shares of Company Common Stock are subject to issuance pursuant to stock options granted and outstanding under the Company's Amended and Restated 1996 Stock Incentive Plan (the "Company Option Plan"); (iii) 58,040 shares of Company Common Stock are reserved for future issuance pursuant to the Company's 1996 Employee Stock Purchase Plan (the "ESPP"); (iv) 2,300,000 shares of Company Common Stock are reserved for future issuance pursuant to the CEO Incentive Plan; and (v) 300,000 shares of
Capitalization of Parent (a) The authorized capital stock of the PARENT consists of the classes of securities, and the number of shares of each such class authorized, issued and outstanding, and the outstanding Common Stock Warrants (and their respective
(a) All of the issued and outstanding shares of capital stock of the PARENT ------ have been duly authorized and validly issued, are fully paid and non-assessable and were validly offered, issued, sold, and delivered by. Upon consummation of the Merger, the shares of PARENT Common Stock to be issued in exchange for TARGET Capital Stock in accordance with this Agreement will be, when so issued, duly authorized, validly issued, fully paid and nonassessable. PARENT has no liability (or potential liability) to any Person for any dividends that have been declared or accrued and remain unpaid.
(b) Except as set forth in Schedule 4.2(b), there are no outstanding --------------- rights, options or warrants to acquire capital stock of PARENT, or convertible securities convertible or exchangeable into Capital Stock of PARENT (sometimes herein collectively referred to as "Common Stock Warrants") as of December 31, 2003. No Common Stock Warrants have been, or will be issued by PARENT after December 31, 2003 without the consent of TARGET.
(c) Except as set forth in Schedule 4.2(c), (i) there are no ---------------- outstanding or existing proxies, voting agreements, voting trusts, preemptive rights, rights of first refusal, rights of first offer, rights of co-sale or tag-along rights, stockholder agreements to which PARENT is a party or other rights, understandings or arrangements regarding the voting or disposition of the capital stock of PARENT to which PARENT is a party or any other restrictions (other than normal restrictions on transfer under applicable federal and state securities laws) applicable to any of PARENT's outstanding stock or other securities or to the conversion of any shares of capital stock of PARENT in the Merger pursuant to any agreement or obligation to which PARENT or any of its stockholders is a party; and (ii) PARENT has not granted or agreed to grant to any person or entity any rights (including piggyback registration rights) to have any capital securities of PARENT, including, without limitation, any Common Stock Warrants or any securities underlying the same, registered with under the Securities Act or any other Law.
(d) Except as set forth in Schedule 4.2(d), no Common Stock Warrants of --------------- PARENT (i) are subject to acceleration or automatic vesting as a result of the occurrence of the Merger, or (ii) contain any provision accelerating the vesting of the right to exercise, exchange or convert the same upon a merger or consolidation involving PARENT, an issuance or sale of PARENT Capital Stock, any sale of all or substantially all of PARENT's assets or any business combination or similar transactions involving or causing a change of control of PARENT.
(e) Except as set forth on Schedule 4.2(e), PARENT owns all of the --------------- issued and outstanding capital stock of its Subsidiaries, free and clear of all Liens.
(f) The authorized capital stock of Acquisition Corp. consists of the classes of securities, and the number of shares of each such class authorized, issued and outstanding, as are set forth on Schedule 4.2(f). All of the issued --------------- and outstanding shares of capital stock of Acquisition Corp. have been duly authorized and validly issued, are fully paid and non-assessable.
Capitalization of Subsidiaries All the outstanding shares of capital stock (if any) of each subsidiary of the Company have been duly authorized and validly issued, are fully paid and nonassessable and, except to the extent set forth in the General Disclosure Package or the Prospectus, are owned by the Company directly or indirectly through one or more wholly-owned subsidiaries, free and clear of any claim, lien, encumbrance, security interest, restriction upon voting or transfer or any other claim of any third party.
Company Capitalization (a) The authorized capital stock of the Company consists of (i) 300,000,000 shares of Company Common Stock, and (ii) 20,000,000 shares of Company Preferred Stock. As of the close of business in New York City on August 13, 2010 (the “Capitalization Date”): (A) 62,828,936 shares of Company Common Stock were issued and outstanding, (B) no shares of Company Preferred Stock were issued and outstanding, and (C) no shares of Company Capital Stock were held by the Company as treasury shares. All outstanding shares of Company Common Stock are validly issued, fully paid and nonassessable and free of any preemptive rights. Except as set forth above, as of the date hereof, the Company has not issued any shares of Company Capital Stock other than pursuant to the exercise of Stock Options or vesting and settlement of Company RSUs.
(b) As of the close of business on the Capitalization Date, there were 12,345,318 shares of Company Common Stock reserved for future issuance under the Company Stock Plans and 2,898,355 shares of Company Common Stock reserved for future issuance under the Company ESPP. As of the close of business on the Capitalization Date, there were outstanding Company Options to purchase 10,925,583 shares of Company Common Stock, 1,123,294 Company RSUs and 712 Company Restricted Stock Awards and, since such date, the Company has not granted, committed to grant or otherwise created or assumed any obligation with respect to any Company Options, Company RSUs or Company Restricted Stock Awards, other than as permitted by Section 6.1(b).
(c) Except as set forth in Section 4.6(c) of the Company Disclosure Letter, as of the date hereof, none of the Company or any of its Subsidiaries has any indebtedness for borrowed money other than intercompany indebtedness owed to the Company or one of its Subsidiaries.
(d) Except as set forth in this Section 4.6, there are (i) no outstanding shares of capital stock of, or other equity or voting interest in, the Company, (ii) no outstanding securities of the Company convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, the Company, (iii) no outstanding options, warrants, rights or other commitments or agreements to acquire from the Company, or that obligates the Company to issue, any capital stock of, or other equity or voting interest in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, the Company, (iv) no obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock of, or other equity or voting interest (including any voting debt) in, the Company (the items in clauses (i), (ii), (iii) and (iv), together with the Company Capital Stock, being referred to collectively as “Company Securities”) and (v) no other obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of any Company Securities. Neither the Company nor any of its Subsidiaries is a party to any Contract which obligate the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Company Securities, except in connection with the repurchase or acquisition of Company Common Stock pursuant to the terms of Company Stock Plans.
(e) Neither the Company nor any of its Subsidiaries is a party to any agreement relating to the voting of, requiring registration of, or granting any preemptive rights, anti-dilutive rights or rights of first refusal or other similar rights with respect to any securities of the Company.
Capitalization (a) The authorized capital stock of the Company consists of 200,000,000 shares of Company Common Stock and 10,000,000 shares of Company Preferred Stock. At the close of business on July 26, 2016, (i) 28,746,664 shares of Company Common Stock were issued and outstanding; (ii) no shares of Company Preferred Stock were issued and outstanding; (iii) 4,826,402 Company Shares were held by the Company in its treasury; (iv) an aggregate of 4,390,772 shares of Company Stock were reserved for issuance pursuant to outstanding awards and rights under the Company Stock Plans and (v) under the Company Stock Plans, there were outstanding Company Options to purchase 2,576,792 shares of Company Common Stock, and outstanding Company RSU Awards with respect to 1,813,980 shares of Company Stock. From such date until the date hereof, neither the Company nor any of its Subsidiaries has issued any shares of its capital stock, has granted any options, restricted stock, stock appreciation rights, warrants or rights or entered into any other agreements or commitments to issue any shares of its capital stock, or granted any other awards in respect of any shares of its capital stock or has split, combined, subdivided or reclassified any of its shares of capital stock. All of the outstanding Company Shares have been, and all shares of Company Common Stock that may be issued pursuant to the exercise of outstanding Company Stock Awards or vesting of Company RSU Awards will be (when issued in accordance with the terms thereof), duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Section 4.2(a) of the Company Disclosure Letter contains a true, correct and complete list, as of the date hereof, of all Company Stock Awards, indicating as applicable, with respect to each Company Stock Award then outstanding, the type of Company Stock Award granted, the number of shares of Company Common Stock subject to such Company Stock Award, the date of grant, exercise or purchase price and expiration thereof. Except for the Company Stock Awards, there are on the date hereof no outstanding (A) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities or ownership interests in the Company, (B) options, warrants, calls, pre-emptive rights, subscriptions, rights or other agreements or commitments requiring the Company to issue, or other obligations of the Company to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) the Company (or, in each case, the economic equivalent thereof), (C) obligations of the Company to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in the Company (the items in clauses (A), (B) and (C), together with the capital stock of the Company, being referred to collectively as “Company Securities”) or (D) obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of the shares of Company Common Stock. There are on the date hereof no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any Company Securities. There are no bonds, debentures, notes or other indebtedness having voting rights (or convertible into securities having such rights) with respect to the Company or any Company Subsidiary issued and outstanding. There are no (i) voting trusts or other agreements or understandings to which the Company or any of its Subsidiaries is a party with respect to the voting of capital stock of the Company or (ii) outstanding contractual obligations to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in the Company or any of its Subsidiaries in exchange for ownership of Common Stock or any other equity interest in the Company or such Subsidiary. All outstanding securities of the Company have been offered and issued in compliance in all material respects with all applicable securities laws, including the Securities Act and “blue sky” laws.
(b) The Company or another of its Subsidiaries is the record and beneficial owner of all the issued and outstanding shares of capital stock of each Subsidiary of the Company, free and clear of any Lien (other than Permitted Liens), and there are no proxies with respect to any such shares. There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock or other voting securities or ownership interests in any Subsidiary of the Company, (ii) options, restricted stock, warrants, rights or other agreements or commitments to acquire from the Company or any of its Subsidiaries, or obligations of the Company or any of its Subsidiaries to issue, any capital stock, voting securities or other ownership interests in (or securities convertible into or exchangeable for capital stock or voting securities or other ownership interests in) any Subsidiary of the Company, (iii) obligations of the Company or any of its Subsidiaries to grant, extend or enter into any subscription, warrant, right, convertible or exchangeable security or other similar agreement or commitment relating to any capital stock, voting securities or other ownership interests in any Subsidiary of the Company (the items in clauses (i), (ii) and (iii), together with the capital stock of such Subsidiaries, being referred to collectively as “Subsidiary Securities”) or (iv) obligations of the Company or any of its Subsidiaries to make any payment based on the value of any shares of any Subsidiary of the Company. There are no outstanding obligations of the Company or any of its Subsidiaries to purchase, redeem or otherwise acquire any outstanding Subsidiary Securities. All of the outstanding shares of capital stock of the Subsidiaries of the Company have been duly authorized and validly issued and are fully paid and nonassessable and are free of preemptive rights. Except for Subsidiary Securities, neither the Company nor any of its Subsidiaries owns directly or indirectly any equity interests in any Person, or has any obligation to acquire any such equity interests, or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Subsidiary of the Company or any other Person. There are not outstanding obligations to which the Company or any of its Subsidiaries is a party restricting the transfer of, or limiting the exercise of voting rights with respect to, any Subsidiaries Securities.
Capitalization Ratio The Borrower will not permit its Capitalization Ratio to exceed 0.50 to 1.00 as of the end of any fiscal quarter or fiscal year end.
Share Capitalizations If after the date hereof, and subject to the provisions of Section 6.6 below, the number of outstanding Ordinary Shares is increased by share capitalization payable in Ordinary Shares, or by a sub-division of Ordinary Shares or other similar event, then, on the effective date of such share capitalization, sub-division or similar event, the number of Ordinary Shares issuable on exercise of each Warrant shall be increased in proportion to such increase in outstanding Ordinary Shares.
Adjustments Upon Changes in Capitalization As used herein, the term "Adjustment Event" means an event pursuant to which the outstanding shares of the Company are increased, decreased or changed into, or exchanged for a different number or kind of shares or securities, without receipt of consideration by the Company, through reorganization, merger, recapitalization, reclassification, stock split, reverse stock split, stock dividend, stock consolidation or otherwise. The term "Adjustment Event" shall also mean to include: (i) any issuance by the Company of the Company's securities (excluding securities issued to the Company's employees, directors, consultants and others similarly situtated) below fair market value for such securities as determined at the time of issuance; and (ii) any issuance at a price below the purchase price per Share for the common stock underlying the Options, as adjusted. Upon the occurrence of an Adjustment Event, (i) appropriate and proportionate adjustments shall be made to the number and kind and exercise price for the shares subject to the Options, and (ii) appropriate amendments to this Agreement shall be executed by the Company and the Optionee if the Board of Directors in good faith determines that such an amendment is necessary or desirable to reflect such adjustments. If determined by the Board of Directors to be appropriate, in the event of an Adjustment Event which involves the substitution of securities of a corporation other than the Company, the Board of Directors shall make arrangements for the assumptions by such other corporation of the Options. Notwithstanding the foregoing, any such adjustment to the Options shall be made without change in the total exercise price applicable to the unexercised portion of the Options, but with an appropriate adjustment to the number of shares, kind of shares and exercise price for each share subject to the Options. The good faith determination by the Board of Directors as to what adjustments, amendments or arrangements shall be made pursuant to this Section, and the extent thereof, shall be final and conclusive, provided that the Options herein are adjusted in a manner that is no less favorable than the manner of adjustment used as to any other options issued by the Company to its employees, directors, consultants or in any transaction. No fractional Shares shall be issued on account of any such adjustment or arrangement.
Capitalization of the Partnership Subject to Section 8.2, the Partnership is authorized to issue two classes of Partnership Interests. The Partnership Interests shall be designated as General Partner Interests and Limited Partner Interests, each having such rights, powers, preferences and designations as set forth in this Agreement.
