Capitalization of Parent and its Subsidiaries. (a) The authorized capital stock of the Parent consists of Seven Hundred Million (700,000,000) shares of Parent Common Stock ("Parent Shares"), of which, as of September 30, 1999, Two Hundred Forty-Three Million Seven Hundred Ninety-Four Thousand Eight Hundred Sixty-Five (243,794,865) Parent Shares were issued and outstanding, and Two Million (2,000,000) shares of preferred stock, none of which is outstanding. All of the outstanding Parent Shares have been validly issued and are fully paid, nonassessable and free of preemptive rights. As of September 30, 1999, approximately One Hundred Thirty-One Million Two Hundred Seventy-Seven Thousand Five Hundred Eighty-Six (131,277,586) Parent Shares were reserved for issuance and, as of September 30, 1999, approximately Fifty-Two Million Two Hundred Seventy-Four Thousand One Hundred Ten (52,274,110) were issuable upon or otherwise deliverable in connection with the exercise of outstanding options to purchase Parent Common Stock issued pursuant to the following plans ("Parent Option Plans"): 1992 Directors' Stock Option Plan, 1992 Employee Stock Purchase Plan, 1989 Stock Plan, 1993 Red Pepper Software Company Plan, 1992 Intrepid Systems, Inc. Plan, TriMark Technology, Inc. 1998 Director and Executive Officer Non-Statutory Stock Option Plan, TriMark Technology, Inc. 1995 Director and Executive Officer Stock Option Plan, TriMark Technology, Inc. 1995 Employees and Consultants Stock Option Plan, TriMark Technology, Inc. 1993 Stock Option Plan, and the Distinction Software, Inc. Stock Option Plan. Except as set forth in Section 3.2(a) of the Parent Disclosure Schedule, between September 30, 1999 and the date hereof, no shares of the Parent's capital stock have been issued other than pursuant to options already in existence on such first date issued under Parent Option Plans, and between September 30, 1999 and the date hereof, no stock options have been granted. Except (i) as set forth above, (ii) for Parent's warrants issued pursuant to the Warrant Agreement between Parent and the First National Bank of Boston, as warrant agent, dated October 30, 1995, and (iii) for the rights (the "Parent Rights") issued pursuant to Parent's First Amended and Restated Preferred Share Rights Agreement, effective as of December 16, 1997, between Parent and BankBoston, N.A. (the "Parent Rights Agreement"), as of the date hereof, there are outstanding (i) no shares of capital stock or other voting securities of Parent, (ii) no securities of Parent or any of its subsidiaries convertible into or exchangeable or exercisable for shares of capital stock or other securities of Parent, (iii) no options, preemptive or other rights to acquire from Parent or any of its subsidiaries, and, except as described in the Parent SEC Reports (as defined below), no obligations of Parent or any of its subsidiaries to issue, any capital stock, voting securities or securities convertible into or exchangeable or exercisable for capital stock or other securities of Parent, and (iv) no equity equivalent interests in the ownership or earnings of the Company or its subsidiaries or other similar rights (collectively "Parent Securities"). Except as set forth in Section 3.2(a) of the Parent Disclosure Schedule, as of the date hereof, there are no outstanding rights or obligations of the Parent or any of its subsidiaries to repurchase, redeem or otherwise acquire any Parent Securities. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Parent is a party or by which it is bound relating to the voting or registration of any shares of capital stock of Parent. (b) All of the outstanding capital stock of Parent's subsidiaries owned by Parent is owned, directly or indirectly, free and clear of any Lien or any other limitation or restriction (including any restriction on the right to vote or sell the same except as may be provided as a matter of Applicable Law). Except as set forth in Section 3.2(b) of the Parent Disclosure Schedule, there are no (i) securities of Parent or any of its subsidiaries convertible into or exchangeable or exercisable for, (ii) options or (iii) except for the Parent Rights, other rights to acquire from Parent or any of its subsidiaries any capital stock or other ownership interests in or any other securities of any subsidiary of Parent, and there exists no other contract, understanding, arrangement or obligation (whether or not contingent) providing for the issuance or sale, directly or indirectly, of any such capital stock. There are no outstanding contractual obligations of Parent or its subsidiaries to repurchase, redeem or otherwise acquire any outstanding shares of capital stock or other ownership interests in any subsidiary of Parent. (c) The Parent Rights and Parent Shares constitute the only classes of equity securities of Parent or its subsidiaries registered or required to be registered under the Exchange Act. Section 3.3. Authority Relative to this Agreement. (a) Each of Parent and Acquisition has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations under this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the boards of directors of Parent (the "Parent Board") and Acquisition and by Parent as the sole stockholder of Acquisition, and no other corporate proceedings on the part of Parent or Acquisition are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by each of Parent and Acquisition and constitutes, assuming the due authorization, execution and delivery hereof by the Company, a valid, legal and binding agreement of each of Parent and Acquisition enforceable against each of Parent and Acquisition in accordance with its terms, subject to any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to creditors' rights generally or to general principles of equity. (b) Without limiting the generality of the foregoing, the Parent Board has (1) determined that the Merger is fair to, and in the best interests of Parent and Parent's stockholders, (2) approved this Agreement, the Stock Option Agreement, the Merger and the other transactions contemplated hereby, and (3) has not withdrawn or modified such approval. Section 3.4.
Appears in 1 contract
Capitalization of Parent and its Subsidiaries. (a) The authorized capital stock of the Parent consists of (i) Seven Hundred Million (700,000,000) shares of Parent Common Stock ("Parent Shares")Stock, of which, as of September 30May 27, 19992003, Two Three Hundred Sixteen Million Six Hundred Five Thousand Nine Hundred Forty-Three Million Seven Hundred Ninety-Four Thousand Eight Hundred Sixty-Five One (243,794,865316,605,941) shares of Parent Shares Common Stock were issued and outstanding, ; and (ii) Two Million (2,000,000) shares of preferred stock, par value $0.01 per share, none of which is are outstanding. All of the outstanding shares of Parent Shares Common Stock have been validly issued and are fully paid, nonassessable and free of preemptive rights. As of September 30May 27, 19992003, approximately One an aggregate of Ninety-Nine Million Six Hundred Six Thousand Seven Hundred Thirty-One Million Two Hundred Seventy-Seven Thousand Five Hundred Eighty-Six Eight (131,277,58699,606,738) shares of Parent Shares Common Stock were reserved for issuance and, as of September 30, 1999, approximately Fiftywhich Eighty-Two Million Two Five Hundred SeventyForty Thousand Thirty-Four Thousand One Hundred Ten Nine (52,274,11082,540,039) shares of Parent Common Stock were issuable upon or otherwise deliverable in connection with the exercise of outstanding options to purchase Parent Common Stock issued pursuant to the following plans ("Parent Option PlansPARENT PLANS"): 1992 Directors' Amended and Restated 1989 Stock Option Plan, 1992 Employee Stock Purchase Plan, 1989 Amended and Restated 2001 Stock Plan, 1993 2000 Nonstatutory Stock Option Plan, PeopleSoft Inc. 2003 Directors Stock Plan, Teamscape Corporation 1998 Stock Plan, SkillsVillage, Inc. 1999 Stock Plan, Advance Planning Solutions, Inc. 1998 Stock Plan, Intrepid Systems, Inc. 1992 Stock Option Plan, Red Pepper Software Company Plan, 1992 Intrepid Systems, Inc. Plan, TriMark Technology, Inc. 1998 Director and Executive Officer Non-Statutory 1993 Stock Option Plan, TriMark Technology, Inc. 1995 Director and Executive Officer Stock Option Plan, TriMark Technology, Inc. 1995 Employees and Consultants Stock Option Plan, TriMark TechnologyTrimark Technologies, Inc. 1993 Stock Option Plan, and the Distinction SoftwareTrimark Technologies, Inc. Employee and Consultants Stock Option Plan 1995, Trimark Technologies Directors and Executive Officers Non-Statutory Stock Option Plan 1998, Trimark Technologies Directors and Executive Officers Stock Option Plan 1995, The Vantive Corporation Amended and Restated 1991 Stock Option Plan, The Vantive Corporation 1997 Nonstatutory Stock Option Plan. Except as set forth in Section 3.2(a) of the Parent Disclosure ScheduleBetween May 27, between September 30, 1999 2003 and the date hereof, no shares of the Parent's capital stock have been issued other than pursuant to options already in existence on such first date issued under Parent Option Plans, and between September 30May 27, 1999 2003 and the date hereof, no stock options have been granted. Except (i) as set forth above, (ii) for Parent's warrants issued pursuant to the Warrant Agreement between Parent above and the First National Bank of Boston, as warrant agent, dated October 30, 1995, and (iii) for the rights (the "Parent RightsPARENT RIGHTS") issued pursuant to Parent's First Amended and Restated Preferred Share Rights Agreement, effective as of December 16, 1997, between Parent and BankBoston, N.A. (the "Parent Rights AgreementPARENT RIGHTS AGREEMENT"), as of the date hereof, there are outstanding (i) no shares of capital stock or other voting securities of Parent, (ii) no securities of Parent or any of its subsidiaries convertible into or exchangeable or exercisable for shares of capital stock or other voting securities of Parent, (iii) no options, preemptive warrants or other rights to acquire from Parent or any of its subsidiaries, and, except as described in the Parent SEC Reports (as defined below)Reports, no obligations of Parent or any of its subsidiaries to issue, any capital stock, voting securities or securities convertible into or exchangeable or exercisable for capital stock or other voting securities of Parent, and (iv) no equity equivalent interests in the ownership or earnings of the Company or its subsidiaries Parent or other similar rights (collectively "Parent SecuritiesPARENT SECURITIES"). Except as set forth in Section 3.2(a) of the Parent Disclosure Schedule, as As of the date hereof, there are no outstanding rights or obligations of the Parent or any of its subsidiaries to repurchase, redeem or otherwise acquire any Parent Securities. There Other than the Parent Voting Agreements, there are no stockholder agreements, voting trusts or other agreements arrangements or understandings to which the Parent is a party or by which it is bound relating to the voting or registration of any shares of capital stock or other voting securities of Parent. (b) All of the outstanding capital stock of Parent's subsidiaries owned by Parent is owned, directly or indirectly, free and clear of any Lien or any other limitation or restriction (including any restriction on the right to vote or sell the same except as may be provided as a matter of Applicable Law). Except as set forth in Section 3.2(b) of the Parent Disclosure Schedule, there are no (i) securities of Parent or any of its subsidiaries convertible into or exchangeable or exercisable for, (ii) options or (iii) except for the Parent Rights, other rights to acquire from Parent or any of its subsidiaries any capital stock or other ownership interests in or any other securities of any subsidiary of Parent, and there exists no other contract, understanding, arrangement or obligation (whether or not contingent) providing for the issuance or sale, directly or indirectly, of any such capital stock. There are no outstanding contractual obligations of Parent or its subsidiaries to repurchase, redeem or otherwise acquire any outstanding shares of capital stock or other ownership interests in any subsidiary of Parent. (c) The Parent Rights and Parent Shares constitute the only classes of equity securities of Parent or its subsidiaries registered or required to be registered under the Exchange Act. Section 3.3. Authority Relative to this Agreement. (a) Each of Parent and Acquisition has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations under this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the boards of directors of Parent (the "Parent Board") and Acquisition and by Parent as the sole stockholder of Acquisition, and no other corporate proceedings on the part of Parent or Acquisition are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by each of Parent and Acquisition and constitutes, assuming the due authorization, execution and delivery hereof by the Company, a valid, legal and binding agreement of each of Parent and Acquisition enforceable against each of Parent and Acquisition in accordance with its terms, subject to any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to creditors' rights generally or to general principles of equity. (b) Without limiting the generality of the foregoing, the Parent Board has (1) determined that the Merger is fair to, and in the best interests of Parent and Parent's stockholders, (2) approved this Agreement, the Stock Option Agreement, the Merger and the other transactions contemplated hereby, and (3) has not withdrawn or modified such approval. Section 3.4.
Appears in 1 contract
Capitalization of Parent and its Subsidiaries. (a) The authorized capital stock of the Parent consists of (i) Seven Hundred Million (700,000,000) shares of Parent Common Stock ("Parent Shares")Stock, of which, as of September 30May 27, 19992003, Two Three Hundred Sixteen Million Six Hundred Five Thousand Nine Hundred Forty-Three Million Seven Hundred Ninety-Four Thousand Eight Hundred Sixty-Five One (243,794,865316,605,941) shares of Parent Shares Common Stock were issued and outstanding, ; and (ii) Two Million (2,000,000) shares of preferred stock, par value $0.01 per share, none of which is are outstanding. All of the outstanding shares of Parent Shares Common Stock have been validly issued and are fully paid, nonassessable and free of preemptive rights. As of September 30May 27, 19992003, approximately One an A-32 aggregate of Ninety-Nine Million Six Hundred Six Thousand Seven Hundred Thirty-One Million Two Hundred Seventy-Seven Thousand Five Hundred Eighty-Six Eight (131,277,58699,606,738) shares of Parent Shares Common Stock were reserved for issuance and, as of September 30, 1999, approximately Fiftywhich Eighty-Two Million Two Five Hundred SeventyForty Thousand Thirty-Four Thousand One Hundred Ten Nine (52,274,11082,540,039) shares of Parent Common Stock were issuable upon or otherwise deliverable in connection with the exercise of outstanding options to purchase Parent Common Stock issued pursuant to the following plans ("Parent Option PlansPARENT PLANS"): 1992 Directors' Amended and Restated 1989 Stock Option Plan, 1992 Employee Stock Purchase Plan, 1989 Amended and Restated 2001 Stock Plan, 1993 2000 Nonstatutory Stock Option Plan, PeopleSoft Inc. 2003 Directors Stock Plan, Teamscape Corporation 1998 Stock Plan, SkillsVillage, Inc. 1999 Stock Plan, Advance Planning Solutions, Inc. 1998 Stock Plan, Intrepid Systems, Inc. 1992 Stock Option Plan, Red Pepper Software Company Plan, 1992 Intrepid Systems, Inc. Plan, TriMark Technology, Inc. 1998 Director and Executive Officer Non-Statutory 1993 Stock Option Plan, TriMark Technology, Inc. 1995 Director and Executive Officer Stock Option Plan, TriMark Technology, Inc. 1995 Employees and Consultants Stock Option Plan, TriMark TechnologyTrimark Technologies, Inc. 1993 Stock Option Plan, and the Distinction SoftwareTrimark Technologies, Inc. Employee and Consultants Stock Option Plan 1995, Trimark Technologies Directors and Executive Officers Non-Statutory Stock Option Plan 1998, Trimark Technologies Directors and Executive Officers Stock Option Plan 1995, The Vantive Corporation Amended and Restated 1991 Stock Option Plan, The Vantive Corporation 1997 Nonstatutory Stock Option Plan. Except as set forth in Section 3.2(a) of the Parent Disclosure ScheduleBetween May 27, between September 30, 1999 2003 and the date hereof, no shares of the Parent's capital stock have been issued other than pursuant to options already in existence on such first date issued under Parent Option Plans, and between September 30May 27, 1999 2003 and the date hereof, no stock options have been granted. Except (i) as set forth above, (ii) for Parent's warrants issued pursuant to the Warrant Agreement between Parent above and the First National Bank of Boston, as warrant agent, dated October 30, 1995, and (iii) for the rights (the "Parent RightsPARENT RIGHTS") issued pursuant to Parent's First Amended and Restated Preferred Share Rights Agreement, effective as of December 16, 1997, between Parent and BankBoston, N.A. (the "Parent Rights AgreementPARENT RIGHTS AGREEMENT"), as of the date hereof, there are outstanding (i) no shares of capital stock or other voting securities of Parent, (ii) no securities of Parent or any of its subsidiaries convertible into or exchangeable or exercisable for shares of capital stock or other voting securities of Parent, (iii) no options, preemptive warrants or other rights to acquire from Parent or any of its subsidiaries, and, except as described in the Parent SEC Reports (as defined below)Reports, no obligations of Parent or any of its subsidiaries to issue, any capital stock, voting securities or securities convertible into or exchangeable or exercisable for capital stock or other voting securities of Parent, and (iv) no equity equivalent interests in the ownership or earnings of the Company or its subsidiaries Parent or other similar rights (collectively "Parent SecuritiesPARENT SECURITIES"). Except as set forth in Section 3.2(a) of the Parent Disclosure Schedule, as As of the date hereof, there are no outstanding rights or obligations of the Parent or any of its subsidiaries to repurchase, redeem or otherwise acquire any Parent Securities. There Other than the Parent Voting Agreements, there are no stockholder agreements, voting trusts or other agreements arrangements or understandings to which the Parent is a party or by which it is bound relating to the voting or registration of any shares of capital stock or other voting securities of Parent. (b) All of the outstanding capital stock of Parent's subsidiaries owned by Parent is owned, directly or indirectly, free and clear of any Lien or any other limitation or restriction (including any restriction on the right to vote or sell the same except as may be provided as a matter of Applicable Law). Except as set forth in Section 3.2(b) of the Parent Disclosure Schedule, there are no (i) securities of Parent or any of its subsidiaries convertible into or exchangeable or exercisable for, (ii) options or (iii) except for the Parent Rights, other rights to acquire from Parent or any of its subsidiaries any capital stock or other ownership interests in or any other securities of any subsidiary of Parent, and there exists no other contract, understanding, arrangement or obligation (whether or not contingent) providing for the issuance or sale, directly or indirectly, of any such capital stock. There are no outstanding contractual obligations of Parent or its subsidiaries to repurchase, redeem or otherwise acquire any outstanding shares of capital stock or other ownership interests in any subsidiary of Parent. (c) The Parent Rights and Parent Shares constitute the only classes of equity securities of Parent or its subsidiaries registered or required to be registered under the Exchange Act. Section 3.3. Authority Relative to this Agreement. (a) Each of Parent and Acquisition has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations under this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the boards of directors of Parent (the "Parent Board") and Acquisition and by Parent as the sole stockholder of Acquisition, and no other corporate proceedings on the part of Parent or Acquisition are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by each of Parent and Acquisition and constitutes, assuming the due authorization, execution and delivery hereof by the Company, a valid, legal and binding agreement of each of Parent and Acquisition enforceable against each of Parent and Acquisition in accordance with its terms, subject to any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to creditors' rights generally or to general principles of equity. (b) Without limiting the generality of the foregoing, the Parent Board has (1) determined that the Merger is fair to, and in the best interests of Parent and Parent's stockholders, (2) approved this Agreement, the Stock Option Agreement, the Merger and the other transactions contemplated hereby, and (3) has not withdrawn or modified such approval. Section 3.4.
Appears in 1 contract
Samples: Amended and Restated Agreement and Plan of Merger (Edwards J D & Co)
Capitalization of Parent and its Subsidiaries. (a) The authorized capital stock of the Parent consists of Seven Hundred Million (700,000,000) shares of Parent Common Stock ("Parent Shares"), of which, as of September 30, 1999, Two Hundred Forty-Three Million Seven Hundred Ninety-Four Thousand Eight Hundred Sixty-Five (243,794,865) Parent Shares were issued and outstanding, and Two Million (2,000,000) shares of preferred stock, none of which is outstanding. All of the outstanding Parent Shares have been validly issued and are fully paid, nonassessable and free of preemptive rights. As of September 30, 1999, approximately One Hundred Thirty-One Million Two Hundred Seventy-Seven Thousand Five Hundred Eighty-Six (131,277,586) Parent Shares were reserved for issuance and, as of September 30, 1999, approximately Fifty-Two Million Two Hundred Seventy-Four Thousand One Hundred Ten (52,274,110) were issuable upon or otherwise deliverable in connection with the exercise of outstanding options to purchase Parent Common Stock issued pursuant to the following plans ("Parent Option Plans"): 1992 Directors' Stock Option Plan, 1992 Employee Stock Purchase Plan, 1989 Stock Plan, 1993 Red Pepper Software Company Plan, 1992 Intrepid Systems, Inc. Plan, TriMark Technology, Inc. 1998 Director and Executive Officer Non-Statutory Stock Option Plan, TriMark Technology, Inc. 1995 Director and Executive Officer Stock Option Plan, TriMark Technology, Inc. 1995 Employees and Consultants Stock Option Plan, TriMark Technology, Inc. 1993 Stock Option Plan, and the Distinction Software, Inc. Stock Option Plan. Except as set forth in Section 3.2(a) of the Parent Disclosure Schedule, between September 30, 1999 and the date hereof, no shares of the Parent's capital stock have been issued other than pursuant to options already in existence on such first date issued under Parent Option Plans, and between September 30, 1999 and the date hereof, no stock options have been granted. Except (i) as set forth above, (ii) for Parent's warrants issued pursuant to the Warrant Agreement between Parent and the First National Bank of Boston, as warrant agent, dated October 30, 1995, and (iii) for the rights (the "Parent Rights") issued pursuant to Parent's First Amended and Restated Preferred Share Rights Agreement, effective as of December 16, 1997, between Parent and BankBoston, N.A. (the "Parent Rights Agreement"), as of the date hereof, there are outstanding (i) no shares of capital stock or other voting securities of Parent, (ii) no securities of Parent or any of its subsidiaries convertible into or exchangeable or exercisable for shares of capital stock or other securities of Parent, (iii) no options, preemptive or other rights to acquire from Parent or any of its subsidiaries, and, except as described in the Parent SEC Reports (as defined below), no obligations of Parent or any of its subsidiaries to issue, any capital stock, voting securities or securities convertible into or exchangeable or exercisable for capital stock or other securities of Parent, and (iv) no equity equivalent interests in the ownership or earnings of the Company or its subsidiaries or other similar rights (collectively "Parent Securities"). Except as set forth in Section 3.2(a) of the Parent Disclosure Schedule, as of the date hereof, there are no outstanding rights or obligations of the Parent or any of its subsidiaries to repurchase, redeem or otherwise acquire any Parent Securities. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Parent is a party or by which it is bound relating to the voting or registration of any shares of capital stock of Parent. (b) All of the outstanding capital stock of Parent's subsidiaries owned by Parent is owned, directly or indirectly, free and clear of any Lien or any other limitation or restriction (including any restriction on the right to vote or sell the same except as may be provided as a matter of Applicable Law). Except as set forth in Section 3.2(b) of the Parent Disclosure Schedule, there are no (i) securities of Parent or any of its subsidiaries convertible into or exchangeable or exercisable for, (ii) options or (iii) except for the Parent Rights, other rights to acquire from Parent or any of its subsidiaries any capital stock or other ownership interests in or any other securities of any subsidiary of Parent, and there exists no other contract, understanding, arrangement or obligation (whether or not contingent) providing for the issuance or sale, directly or indirectly, of any such capital stock. There are no outstanding contractual obligations of Parent or its subsidiaries to repurchase, redeem or otherwise acquire any outstanding shares of capital stock or other ownership interests in any subsidiary of Parent. (c) The Parent Rights and Parent Shares constitute the only classes of equity securities of Parent or its subsidiaries registered or required to be registered under the Exchange Act. Section 3.3. Authority Relative to this Agreement. (a) Each of Parent and Acquisition has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations under this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the boards of directors of Parent (the "Parent Board") and Acquisition and by Parent as the sole stockholder of Acquisition, and no other corporate proceedings on the part of Parent or Acquisition are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by each of Parent and Acquisition and constitutes, assuming the due authorization, execution and delivery hereof by the Company, a valid, legal and binding agreement of each of Parent and Acquisition enforceable against each of Parent and Acquisition in accordance with its terms, subject to any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to creditors' rights generally or to general principles of equity. (b) Without limiting the generality of the foregoing, the Parent Board has (1) determined that the Merger is fair to, and in the best interests of Parent and Parent's stockholders, (2) approved this Agreement, the Stock Option Agreement, the Merger and the other transactions contemplated hereby, and (3) has not withdrawn or modified such approval. Section 3.4.
Appears in 1 contract
Capitalization of Parent and its Subsidiaries. (a) The authorized capital stock of the Parent consists of (i) Seven Hundred Million (700,000,000) shares of Parent Common Stock ("Parent Shares")Stock, of which, as of September 30May 27, 19992003, Two Three Hundred Sixteen Million Six Hundred Five Thousand Nine Hundred Forty-Three Million Seven Hundred Ninety-Four Thousand Eight Hundred Sixty-Five One (243,794,865316,605,941) shares of Parent Shares Common Stock were issued and outstanding, ; and (ii) Two Million (2,000,000) shares of preferred stock, par value $0.01 per share, none of which is are outstanding. All of the outstanding shares of Parent Shares Common Stock have been validly issued and are fully paid, nonassessable and free of preemptive rights. As of September 30May 27, 19992003, approximately One an aggregate of Ninety-Nine Million Six Hundred Six Thousand Seven Hundred Thirty-One Million Two Hundred Seventy-Seven Thousand Five Hundred Eighty-Six Eight (131,277,58699,606,738) shares of Parent Shares Common Stock were reserved for issuance and, as of September 30, 1999, approximately Fiftywhich Eighty-Two Million Two Five Hundred SeventyForty Thousand Thirty-Four Thousand One Hundred Ten Nine (52,274,11082,540,039) shares of Parent Common Stock were issuable upon or otherwise deliverable in connection with the exercise of outstanding options to purchase Parent Common Stock issued pursuant to the following plans ("“Parent Option Plans"”): 1992 Directors' Amended and Restated 1989 Stock Option Plan, 1992 Employee Stock Purchase Plan, 1989 Amended and Restated 2001 Stock Plan, 1993 2000 Nonstatutory Stock Option Plan, PeopleSoft Inc. 2003 Directors Stock Plan, Teamscape Corporation 1998 Stock Plan, SkillsVillage, Inc. 1999 Stock Plan, Advance Planning Solutions, Inc. 1998 Stock Plan, Intrepid Systems, Inc. 1992 Stock Option Plan, Red Pepper Software Company Plan, 1992 Intrepid Systems, Inc. Plan, TriMark Technology, Inc. 1998 Director and Executive Officer Non-Statutory 1993 Stock Option Plan, TriMark Technology, Inc. 1995 Director and Executive Officer Stock Option Plan, TriMark Technology, Inc. 1995 Employees and Consultants Stock Option Plan, TriMark TechnologyTrimark Technologies, Inc. 1993 Stock Option Plan, and the Distinction SoftwareTrimark Technologies, Inc. Employee and Consultants Stock Option Plan 1995, Trimark Technologies Directors and Executive Officers Non-Statutory Stock Option Plan 1998, Trimark Technologies Directors and Executive Officers Stock Option Plan 1995, The Vantive Corporation Amended and Restated 1991 Stock Option Plan, The Vantive Corporation 1997 Nonstatutory Stock Option Plan. Except as set forth in Section 3.2(a) of the Parent Disclosure ScheduleBetween May 27, between September 30, 1999 2003 and the date hereof, no shares of the Parent's ’s capital stock have been issued other than pursuant to options already in existence on such first date issued under Parent Option Plans, and between September 30May 27, 1999 2003 and the date hereof, no stock options have been granted. Except (i) as set forth above, (ii) for Parent's warrants issued pursuant to the Warrant Agreement between Parent above and the First National Bank of Boston, as warrant agent, dated October 30, 1995, and (iii) for the rights (the "“Parent Rights"”) issued pursuant to Parent's ’s First Amended and Restated Preferred Share Rights Agreement, effective as of December 16, 1997, between Parent and BankBoston, N.A. (the "“Parent Rights Agreement"”), as of the date hereof, there are outstanding (i) no shares of capital stock or other voting securities of Parent, (ii) no securities of Parent or any of its subsidiaries convertible into or exchangeable or exercisable for shares of capital stock or other voting securities of Parent, (iii) no options, preemptive warrants or other rights to acquire from Parent or any of its subsidiaries, and, except as described in the Parent SEC Reports (as defined below)Reports, no obligations of Parent or any of its subsidiaries to issue, any capital stock, voting securities or securities convertible into or exchangeable or exercisable for capital stock or other voting securities of Parent, and (iv) no equity equivalent interests in the ownership or earnings of the Company or its subsidiaries Parent or other similar rights (collectively "“Parent Securities"”). Except as set forth in Section 3.2(a) of the Parent Disclosure Schedule, as As of the date hereof, there are no outstanding rights or obligations of the Parent or any of its subsidiaries to repurchase, redeem or otherwise acquire any Parent Securities. There Other than the Parent Voting Agreements, there are no stockholder agreements, voting trusts or other agreements arrangements or understandings to which the Parent is a party or by which it is bound relating to the voting or registration of any shares of capital stock or other voting securities of Parent. (b) All of the outstanding capital stock of Parent's subsidiaries owned by Parent is owned, directly or indirectly, free and clear of any Lien or any other limitation or restriction (including any restriction on the right to vote or sell the same except as may be provided as a matter of Applicable Law). Except as set forth in Section 3.2(b) of the Parent Disclosure Schedule, there are no (i) securities of Parent or any of its subsidiaries convertible into or exchangeable or exercisable for, (ii) options or (iii) except for the Parent Rights, other rights to acquire from Parent or any of its subsidiaries any capital stock or other ownership interests in or any other securities of any subsidiary of Parent, and there exists no other contract, understanding, arrangement or obligation (whether or not contingent) providing for the issuance or sale, directly or indirectly, of any such capital stock. There are no outstanding contractual obligations of Parent or its subsidiaries to repurchase, redeem or otherwise acquire any outstanding shares of capital stock or other ownership interests in any subsidiary of Parent. (c) The Parent Rights and Parent Shares constitute the only classes of equity securities of Parent or its subsidiaries registered or required to be registered under the Exchange Act. Section 3.3. Authority Relative to this Agreement. (a) Each of Parent and Acquisition has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations under this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by the boards of directors of Parent (the "Parent Board") and Acquisition and by Parent as the sole stockholder of Acquisition, and no other corporate proceedings on the part of Parent or Acquisition are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by each of Parent and Acquisition and constitutes, assuming the due authorization, execution and delivery hereof by the Company, a valid, legal and binding agreement of each of Parent and Acquisition enforceable against each of Parent and Acquisition in accordance with its terms, subject to any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to creditors' rights generally or to general principles of equity. (b) Without limiting the generality of the foregoing, the Parent Board has (1) determined that the Merger is fair to, and in the best interests of Parent and Parent's stockholders, (2) approved this Agreement, the Stock Option Agreement, the Merger and the other transactions contemplated hereby, and (3) has not withdrawn or modified such approval. Section 3.4.
Appears in 1 contract
