Capitalization of the Company. Immediately prior to the date of this Agreement, the authorized capital stock of the Company consisted of 350,000,000 shares of Common Stock, of which 83,895,354 shares are issued and outstanding, and 5,000,000 shares of preferred stock, par value $0.001 per share, of which 2,070,000 shares of convertible preferred stock are issued and outstanding. As of the date of this Agreement, the Company has not, and as of the Closing, the Company will not have, issued any capital stock since its most recently filed periodic report under the Exchange Act, other than (a) pursuant to any equity compensation or stock purchase plan that has been approved by the Company’s Board of Directors and stockholders, (b) pursuant to the conversion or exercise of Common Stock Equivalents, (c) in connection with bona fide business acquisitions by the Company or any of its subsidiaries, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, each as approved by the Company’s Board of Directors, and (d) in connection with bona fide commercial relationships of the Company or its subsidiaries, as long as any such issuance is not primarily intended to provide the Company with equity financing. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by this Agreement. As of the date of this Agreement, except as set forth in the SEC Reports or as otherwise disclosed to the Purchaser in writing immediately prior to its execution of this Agreement, there are no outstanding options, warrants, script 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 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 Common Stock or Common Stock Equivalents. The issuance and sale of the Investment Shares will not obligate the Company to issue shares of Common Stock or other securities of the Company to any Person (other than the Purchaser) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of 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 in all material respects 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 or the Board is required for the issuance and sale of the Investment Shares. There are no stockholders agreements or voting agreements with respect to the Company’s capital stock to which the Company is a party.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Molycorp, Inc.), Securities Purchase Agreement (Molibdenos Y Metales S.A.)
Capitalization of the Company. Immediately prior to the date of this Agreement, the The authorized capital stock of the Company consisted consists solely of 350,000,000 shares of (a) 35,000,000 Common StockShares, par value $0.01 per share, of which 83,895,354 shares are 11,652,393 Common Shares were issued and outstandingoutstanding as of April 23, 2004, and 5,000,000 (b) 1,000,000 shares of preferred stock, par value $0.001 0.01 per share, 100,000 shares of which 2,070,000 shares have been designated as Series A Junior Participating Preferred Stock, and none of convertible preferred stock which are issued and outstandingoutstanding on the date hereof. As of the date of this AgreementApril 23, the Company has not, and as of the Closing, the Company will not have, issued any capital stock since its most recently filed periodic report under the Exchange Act, other than (a) pursuant to any equity compensation or stock purchase plan that has been approved by the Company’s Board of Directors and stockholders2004, (bi) 1,007,239 Common Shares remained available for issuance pursuant to the conversion Company Stock Option Plans and 2,467,832 Common Shares were subject to outstanding Options, and (ii) 1,635,060 Common Shares were held by the Company in its treasury. Except as set forth in this Section 3.04 and the preferred stock purchase rights (the “Rights”) issued pursuant to the Rights Plan, there are not any options, warrants, calls, subscriptions, convertible securities or exercise other rights, or other agreements obligating the Company to issue, transfer or sell any shares of capital stock of, or other equity interests in, the Company. All issued and outstanding Common Stock EquivalentsShares are duly authorized, (c) in connection with bona fide business acquisitions by validly issued, fully paid, nonassessable and free of preemptive rights, rights of refusal or similar rights or limitations. There are no outstanding obligations of the Company or any of its subsidiariessubsidiaries to repurchase, whether by mergerredeem or otherwise acquire any shares of capital stock of, consolidationor other equity interests in, the Company. There are no contracts, commitments or agreements relating to the voting, purchase or sale of assetsCommon Shares (i) between or among the Company and any of its stockholders except for the Stock Option Plans and the agreements executed thereunder and any support agreements entered into in connection with the Transactions at the request of Parent or Merger Sub, sale or exchange of stock or otherwise, each as approved by (ii) to the Company’s Board of Directorsknowledge, and (d) except as specifically disclosed in connection any forms, reports, statements or schedules filed by a third-party with bona fide commercial relationships the SEC, among any of the Company Company’s stockholders or its subsidiaries, between any of the Company’s stockholders and any third party. The Stock Option Plans and the agreements evidencing options granted thereunder do not prohibit the acceleration and cancellation of outstanding Options and the termination of the Stock Option Plans as long as any such issuance is not primarily intended to provide the Company with equity financing. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by this Agreement. As of the date Section 2.02(b) of this Agreement, except as set forth in and do not require the SEC Reports consent or as otherwise disclosed to approval of the Purchaser in writing immediately prior to its execution holders of this Agreementthe outstanding Options, there are no outstanding options, warrants, script rights to subscribe to, calls or commitments of any character whatsoever relating tothe Company’s stockholders, or securitiesany other party to effect such acceleration, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe cancellation and termination except for or acquire, any shares of 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 Common Stock or Common Stock Equivalents. The issuance and sale of the Investment Shares will not obligate the Company to issue shares of Common Stock or other securities action of the Company to any Person (other than the Purchaser) and will not result Board described in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securitiesSection 2.02(b). All of outstanding Common Shares and all Options granted pursuant to the outstanding shares of capital stock of the Company are validly issued, fully paid and nonassessable, have been Stock Option Plans were issued in compliance in all material respects with all applicable 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 or the Board is required for the issuance and sale of the Investment Shares. There are no stockholders agreements or voting agreements with respect to the Company’s capital stock to which the Company is a party.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Onesource Information Services Inc), Agreement and Plan of Merger (Infousa Inc)
Capitalization of the Company. Immediately prior to the date of this Agreement, the authorized capital stock of the Company consisted of 350,000,000 shares of Common Stock, of which 83,895,354 shares are issued and outstanding, and 5,000,000 shares of preferred stock, par value $0.001 per share, of which 2,070,000 shares of convertible preferred stock are issued and outstanding. As of the date of this Agreement, the Company has not, and as of the Closing, the Company will not have, issued any capital stock since its most recently filed periodic report under the Exchange Act, other than (a) pursuant to any equity compensation or stock purchase plan that has been approved by the Company’s Board of Directors and stockholders, (b) pursuant to the conversion or exercise of Common Stock Equivalents, (c) in connection with bona fide business acquisitions by the Company or any of its subsidiaries, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, each as approved by the Company’s Board of Directors, and (d) in connection with bona fide commercial relationships of the Company or its subsidiaries, as long as any such issuance is not primarily intended to provide the Company with equity financing. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by this Agreement. As of the date of this Agreement, except an authorized capitalization as set forth in the SEC Reports or as otherwise disclosed to Registration Statement, the Purchaser in writing immediately prior to its execution of this Agreement, there are no outstanding options, warrants, script 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 Common Stock, or contracts, commitments, understandings or arrangements by which Pricing Disclosure Package and the Company or any subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents. The issuance and sale of Prospectus under the Investment Shares will not obligate the Company to issue shares of Common Stock or other securities of the Company to any Person (other than the Purchaser) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. All of heading “Capitalization;” all the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable and are not subject to any pre-emptive or similar rights; except as described in or expressly contemplated by the Pricing Disclosure Package and the Prospectus, there are no outstanding rights (including, without limitation, pre-emptive rights), warrants or options to acquire, or instruments convertible into or exchangeable for, any shares of capital stock or other equity interest in the Company, or any contract, commitment, agreement, understanding or arrangement of any kind relating to the issuance of any capital stock or other equity interests of the Company, any such convertible or exchangeable securities or any such rights, warrants or options; the capital stock or other equity interests of the Company, as the case may be, conforms in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus; and the Company owns 50.4% of the issued and outstanding JEH LLC Units (the “JEH LLC Units”) (without giving effect to the transactions contemplated by this Agreement); such JEH LLC Units have been duly and validly authorized and issued, fully paid and nonassessablenon-assessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware Limited Liability Act (the “Delaware LLC Act”), have been issued in compliance in all material respects with all federal and state securities Lawsas applicable, and none of such outstanding shares was issued limited to the extent set forth in violation JEH LLC’s organizational documents) and are owned by the Company, free and clear of any preemptive rights lien, charge, encumbrance, security interest, restriction on voting or similar rights to subscribe for transfer or purchase securities. No further approval or authorization any other claim of any stockholder or third party, except as may exist pursuant to that certain Credit Agreement, dated as of December 31, 2009, among Xxxxx Energy Holdings, LLC, as Borrower, Xxxxx Fargo Bank, N.A., as Administrative Agent, Xxxxx Fargo Securities, LLC, as Sole Lead Arranger and Sole Bookrunner, and the Board is required for lenders thereto, as amended through the issuance and sale of date hereof (the Investment Shares. There are no stockholders agreements or voting agreements with respect to the Company’s capital stock to which the Company is a party“Credit Agreement”).
Appears in 2 contracts
Samples: Underwriting Agreement (Jones Energy, Inc.), Jones Energy, Inc.
Capitalization of the Company. Immediately prior to the date of this Agreement, the (a) The authorized capital stock of the Company consisted consists of 350,000,000 10,000,000 shares of Common Stock, common stock of which 83,895,354 392,825 shares are issued and outstanding, and 5,000,000 10,000,000 shares of preferred stock, par value $0.001 per share, Series A Preferred Stock of which 2,070,000 3,066,923 shares of convertible preferred stock are issued and outstanding. As The Shares constitute all of the date of this Agreement, the Company has not, issued and as outstanding Equity Interests of the Closing, the Company will not have, issued any capital stock since its most recently filed periodic report under the Exchange Act, other than Company. The Shares (ai) pursuant to any equity compensation or stock purchase plan that has have been approved by the Company’s Board of Directors and stockholdersduly authorized, (bii) pursuant to the conversion or exercise of Common Stock Equivalents, (c) in connection with bona fide business acquisitions by the Company or any of its subsidiaries, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, each as approved by the Company’s Board of Directors, and (d) in connection with bona fide commercial relationships of the Company or its subsidiaries, as long as any such issuance is not primarily intended to provide the Company with equity financing. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by this Agreement. As of the date of this Agreement, except as set forth in the SEC Reports or as otherwise disclosed to the Purchaser in writing immediately prior to its execution of this Agreement, there are no outstanding options, warrants, script 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 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 Common Stock or Common Stock Equivalents. The issuance and sale of the Investment Shares will not obligate the Company to issue shares of Common Stock or other securities of the Company to any Person (other than the Purchaser) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of 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 in all material respects with all federal and state securities Lawsfully-paid, and none of such outstanding shares was non-assessable, and (iii) were not issued in violation of any preemptive rights right, subscription right, right of first refusal, or applicable Law. Except for this Agreement and as set forth on Schedule 3.4(a), there are no (i) equity interests, profit interests or voting securities in the Company (except for the Company’s interest in its Subsidiary), (ii) securities convertible or exchangeable into any equity interest or profit interests of the Company, and (iii) outstanding options, warrants, rights, calls, convertible securities, or other Contracts obligating the Company to issue, transfer, sell, repurchase, or redeem any Equity Interests of the Company, including the Shares. Except as set forth on Schedule 3.4(a), there are no outstanding or authorized stock appreciation, phantom, or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder or the Board is required for the issuance and sale of the Investment Shares. There are no stockholders agreements or voting agreements with respect to the Company’s capital stock . Except as set forth on Schedule 3.4(a), there are no voting trusts, shareholders agreements, proxies, or other Contracts or understandings in effect with respect to which the voting or transfer of any of the Shares or any other equity interests in the Company. The Company is owns one hundred percent (100%) of the membership interests in PROFleet LLC, a partyDelaware limited liability company (“PROFleet”), as its sole subsidiary. Such membership interest constitutes all of the issued and outstanding Equity Interests of PROFleet. The Equity Interests of PROFleet (i) have been duly authorized, (ii) are validly issued, fully-paid, and non-assessable, and (iii) were not issued in violation of any preemptive right, subscription right, right of first refusal, or applicable Law. There are no other (i) equity interests, profit interests or voting securities in PROFleet, (ii) securities convertible or exchangeable into any equity interest or profit interests of PROFleet, or (iii) outstanding options, warrants, rights, calls, convertible securities, or other Contracts obligating PROFleet to issue, transfer, sell, repurchase, or redeem any of its Equity Interests. There are no accrued, but unpaid, dividends with respect to any membership interests, equity interests, or other securities of PROFleet. There are no voting trusts, shareholders agreements, proxies, or other Contracts or understandings in effect with respect to the voting or transfer of any of the membership interests or any other Equity Interests in PROFleet.
Appears in 2 contracts
Samples: Contribution Agreement (Proficient Auto Logistics, Inc), Stock Purchase Agreement (Proficient Auto Logistics, Inc)
Capitalization of the Company. Immediately prior to As of the date of this Agreementhereof, the entire authorized capital stock of the Company consisted of 350,000,000 consists of: (i) 1,000,000 shares of Company Common Stock, of which 83,895,354 100,000 shares are validly issued and outstanding, fully paid and nonassessable, and no shares are held in treasury and (ii) 5,000,000 shares of preferred stock, par value $0.001 per shareCompany Preferred Stock, of which 2,070,000 470,000 shares of convertible preferred stock are validly issued and outstanding, fully paid and nonassessable. As All of the date of this Agreement, the Company has not, and as outstanding shares of the Closing, the Company will not have, issued any Company's capital stock since its most recently filed periodic report under the Exchange Actare duly authorized, other than (a) pursuant to validly issued, fully paid and nonassessable and free of any equity compensation or stock purchase plan that has been approved by the Company’s Board of Directors and stockholders, (b) pursuant to the conversion or exercise of Common Stock Equivalents, (c) preemptive rights in connection with bona fide business acquisitions by the Company or any of its subsidiaries, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, each as approved by the Company’s Board of Directors, and (d) in connection with bona fide commercial relationships of the Company or its subsidiaries, as long as any such issuance is not primarily intended to provide the Company with equity financingrespect thereto. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by this Agreement. As of the date of this Agreement, except Except as set forth in Section 3.2(a) of the SEC Reports or as otherwise disclosed to the Purchaser in writing immediately prior to its execution of this AgreementCompany Disclosure Schedule, there are no outstanding options, warrants, script calls, rights to subscribe toor commitments, calls or commitments any other agreements of any character whatsoever relating tobinding on the Company with respect to the issued or unissued capital stock of the Company or obligating the Company to issue, transfer or sell, or securitiescause to be issued, rights transferred or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquiresold, any shares of Common Stockcapital stock of, or contractsother equity interests in, commitments, understandings or arrangements by which the Company or any subsidiary is securities convertible into or may become bound to issue additional shares of Common Stock exchangeable for such shares, or Common Stock Equivalents. The issuance and sale of the Investment Shares will not obligate equity interests, or obligating the Company to issue shares of Common Stock grant, extend or enter into any such option, warrant, call, right, commitment or other securities agreement. There are no contractual obligations of the Company to repurchase, redeem or otherwise acquire any Person (other than the Purchaser) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. All of the outstanding shares of capital stock of the Company. After the date hereof, no additional shares of Company are validly issued, fully paid and nonassessable, Common Stock will have been issued issued. Except as set forth in compliance in all material respects 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 or the Board is required for the issuance and sale Section 3.2(a) of the Investment Shares. There Company Disclosure Schedule, there are no stockholders voting trusts, proxies or other agreements or voting agreements with respect to the Company’s capital stock understandings to which the Company or any Stockholder is a partyparty or is bound with respect to voting any shares of capital stock of the Company.
Appears in 1 contract
Capitalization of the Company. Immediately prior to the date of this Agreement, the authorized capital stock of the Company consisted of 350,000,000 shares of Common Stock, of which 83,895,354 shares are issued and outstanding, and 5,000,000 shares of preferred stock, par value $0.001 per share, of which 2,070,000 shares of convertible preferred stock are issued and outstanding. As of the date of this Agreement, (i) 3,912,359.639 Common Units are issued and outstanding and (ii) 99,907.15 Series A Preferred Units are issued and outstanding. No bonds, debentures, notes or other instruments or evidence of indebtedness having the right to vote (or convertible into, or exercisable or exchangeable for, securities having the right to vote) on any matters on which the Securityholders may vote are issued or outstanding. All outstanding Common Units and Series A Preferred Units are duly authorized and validly issued and were not issued in violation of any preemptive or other similar rights. Except as set forth above, as set forth on Company has notDisclosure Schedule 3.1(b) and as set forth on Company Disclosure Schedule 3.1(c), and as of the Closing, the Company will not have, issued any capital stock since its most recently filed periodic report under the Exchange Act, other than (a) pursuant to any equity compensation or stock purchase plan that has been approved by the Company’s Board of Directors and stockholders, (b) pursuant to the conversion or exercise of Common Stock Equivalents, (c) in connection with bona fide business acquisitions by the Company or any of its subsidiaries, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, each as approved by the Company’s Board of Directors, and (d) in connection with bona fide commercial relationships of the Company or its subsidiaries, as long as any such issuance is not primarily intended to provide the Company with equity financing. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by this Agreement. As of the date of this Agreement, except as set forth in the SEC Reports or as otherwise disclosed to the Purchaser in writing immediately prior to its execution of this Agreement, there are no outstanding (A) voting or equity securities of the Company; (B) securities of the Company convertible into, or exchangeable or exercisable for, voting or equity securities of the Company; (C) options, warrants, script rights to subscribe tocalls, calls rights, commitments 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 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 Common Stock or Common Stock Equivalents. The issuance and sale of the Investment Shares will not obligate the Company to issue shares of Common Stock or other securities of the Company to any Person (other than the Purchaser) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of 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 in all material respects 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 or the Board is required for the issuance and sale of the Investment Shares. There are no stockholders agreements or voting agreements with respect to the Company’s capital stock to which the Company is a partyparty or by which it is bound, in any case obligating the Company to issue, deliver, sell, purchase, redeem or acquire, or cause to be issued, delivered, sold, purchased, redeemed or acquired, voting or equity securities of the Company, or obligating the Company to grant, extend or enter into any such option, warrant, call, right, commitment or agreement; (D) restricted shares, restricted share units, stock appreciation rights, performance shares, contingent value rights, “phantom” stock or similar securities or rights that are derivative of, or provide economic benefits based, directly or indirectly, on the value or price of, any voting or equity securities or ownership interests in, the Company; and (E) voting trusts, proxies, or other similar agreements or understandings to which the Company is a party or by which the Company is bound with respect to the voting of any securities of the Company.
Appears in 1 contract
Capitalization of the Company. Immediately prior to The authorized, issued and outstanding shares of all classes of capital stock of the date Company, and the record and beneficial ownership thereof, is set forth in Section 3.4 of this Agreement, the authorized Disclosure Schedule. The Subject Shares constitute 100% of the issued and outstanding shares of the capital stock of the Company consisted on a fully diluted basis (i.e., after giving effect to the exercise of 350,000,000 all options, warrants or similar rights to acquire shares of Common Stock, of which 83,895,354 shares stock) and there are issued and outstanding, and 5,000,000 no other shares of preferred stockany class of capital stock authorized, par value $0.001 per share, of which 2,070,000 shares of convertible preferred stock are issued and outstanding. As or outstanding as of the date of this Agreement, the Company has not, and as hereof. All of the ClosingSubject Shares were duly and validly authorized and issued and are fully paid and nonassessable, except as provided in Section 180.0622(2)(b) of the Company will not haveWisconsin Statutes. Except as disclosed in Section 3.4 of the Disclosure Schedule, issued there are no agreements, arrangements or understandings (including, without limitation, options or rights of first refusal), to which any capital stock since its most recently filed periodic report under the Exchange ActShareholder, other than (a) pursuant to any equity compensation or stock purchase plan that has been approved by the Company’s Board of Directors and stockholders, (b) pursuant to the conversion or exercise of Common Stock Equivalents, (c) in connection with bona fide business acquisitions by the Company or any of its subsidiariesSubsidiary is a party, whether or by mergerwhich any Shareholder, consolidation, sale of assets, sale or exchange of stock or otherwise, each as approved by the Company’s Board of Directors, and (d) in connection with bona fide commercial relationships of the Company or its subsidiariesany Subsidiary is bound relating to the ownership, as long as acquisition or disposition of the Subject Shares or any such issuance is not primarily intended interest therein, and there are no agreements, arrangements or understandings to provide which any Shareholder, the Company with equity financing. No Person has any right of first refusal, preemptive right, right of participation, or any similar right Subsidiary is a party or by which they are bound relating to participate in the transactions contemplated by this Agreement. As repurchase or redemption of any shares of the date of this Agreement, except as set forth in the SEC Reports or as otherwise disclosed to the Purchaser in writing immediately prior to its execution of this Agreement, there Company's capital stock. There are no outstanding options, warrants, script warrants or other rights to subscribe to, calls for or commitments of any character whatsoever relating topurchase, or securities, rights or obligations securities convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stockthe Company's capital stock, there are no agreements, arrangements or contracts, commitments, understandings or arrangements by to which the Company or any subsidiary Subsidiary is a party or may become by which they are bound to issue additional shares of Common Stock or Common Stock Equivalents. The issuance and sale of the Investment Shares will not obligate the Company to issue shares of Common Stock or other securities of the Company to any Person (other than the Purchaser) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of 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 in all material respects 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 or the Board is required for the issuance and sale of the Investment Shares. There are no stockholders agreements or voting agreements with respect to the Company’s capital stock pursuant to which the Company is a partyor may be required to issue or sell additional shares of the Company's capital stock, and no person other than the Shareholders owns or holds any legal, equitable or beneficial interest in or right to any shares of the Company's capital stock or other equity interest in the Company of any nature whatsoever.
Appears in 1 contract
Capitalization of the Company. Immediately prior to (a) As of the date of this Agreement, the authorized capital stock of the Company consisted consists of 350,000,000 (i) 1,000,000 shares of Common Preferred Stock, par value $.01 per share, of which 83,895,354 shares none are issued and outstanding, and 5,000,000 (ii) 10,000,000 shares of preferred stockCommon Stock, par value $0.001 .01 per share, of which 2,070,000 shares of convertible preferred stock 5,239,774 Shares are issued and 4,337,886 Shares are outstanding. As of Except for (i) the date of rights created pursuant to this Agreement, the Company has notStock Option Plan and the Company Rights Plan and (ii) as set forth in Schedule -------- 1.7 and Schedule 2.3(a) of the Company Disclosure Letter, there are no --- --------------- other options, warrants, calls, rights, commitments or agreements of any character to which the Company is a party or by which it is bound obligating the Company to issue, sell, deliver, repurchase or redeem or cause to be issued, sold, delivered, repurchased or redeemed any shares of capital stock of, or equity interests in, the Company. All outstanding Shares are, and all Shares subject to issuance as of aforesaid, upon issuance on the Closing, terms and conditions specified in the Company will not have, issued any capital stock since its most recently filed periodic report under the Exchange Act, other than (a) instruments pursuant to any equity compensation which they are issuable, will be, duly authorized, validly issued, fully paid and nonassessable and free of preemptive rights or stock purchase plan that has been approved by the Company’s Board rights of Directors and stockholders, (b) pursuant to the conversion or exercise first refusal. None of Common Stock Equivalents, (c) in connection with bona fide business acquisitions by the Company or any of its subsidiariesSubsidiaries is required to redeem, whether by merger, consolidation, sale repurchase or otherwise acquire shares of assets, sale or exchange of capital stock or otherwise, each as approved by the Company’s Board of Directors, and (d) in connection with bona fide commercial relationships of the Company or any of its subsidiariesSubsidiaries, respectively, as long as any such issuance is not primarily intended to provide the Company with equity financing. No Person has any right a result of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by this Agreement. As of the date of this Agreement, except Except as set forth in the SEC Reports or as otherwise disclosed to the Purchaser in writing immediately prior to its execution of this Agreement, there are no outstanding options, warrants, script 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 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 Common Stock or Common Stock Equivalents. The issuance and sale of the Investment Shares will not obligate the Company to issue shares of Common Stock or other securities Schedule 2.3(a) of the Company to any Person (Disclosure Letter or other than the Purchaser) and will not result in a right of any holder of Company securities to adjust the exercise--------------- Rights Plan, conversion, exchange or reset price under any of such securities. All of the outstanding shares of capital stock of the Company are validly issued, fully paid and nonassessable, have been issued has no stockholder rights plan or agreement in compliance in all material respects 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 or the Board is required force providing for the issuance and sale to holders of Shares of rights to purchase or receive stock, cash or other assets upon the Investment Shares. There are no stockholders agreements acquisition or voting agreements with respect to proposed acquisition of Shares by a Person (a "Rights Plan"), nor has the Company’s capital stock to which the Company is 's Board of Directors or stockholders ever adopted a partyRights Plan.
Appears in 1 contract
Samples: Agreement and Plan of Recapitalization and Merger (Specialty Catalog Corp)
Capitalization of the Company. Immediately prior The authorized, issued and outstanding shares of all classes of capital stock of the Company, and the record and beneficial ownership thereof, is set forth in Section 4.3 of the Disclosure Schedule (the "Outstanding Shares"). Section 4.3 of the Disclosure Schedule also sets forth, with respect to each Stock Option, the name of each Option Holder, the number of Stock Options held by such Option Holder, the date on which each Stock Option was granted, and the Strike Price of this Agreement, each Stock Option. The Outstanding Shares and the authorized Options together constitute 100% of the issued and outstanding shares of the capital stock of the Company consisted on a fully diluted basis (i.e., after giving effect to the exercise of 350,000,000 all options, warrants or similar rights to acquire shares of Common Stock, of which 83,895,354 shares stock) and there are issued and outstanding, and 5,000,000 no other shares of preferred stockany class of capital stock authorized, par value $0.001 per share, of which 2,070,000 shares of convertible preferred stock are issued and outstanding. As or outstanding as of the date of this Agreement, the Company has not, and as hereof. All of the ClosingOutstanding Shares were duly and validly authorized and issued and are fully paid and nonassessable, except as provided in Section 180.0622(2)(b) of the Company will not haveWisconsin Statutes. Except as disclosed in Section 4.3 of the Disclosure Schedule, issued there are no agreements, arrangements or understandings (including, without limitation, options or rights of first refusal), to which any capital stock since its most recently filed periodic report under the Exchange ActShareholder, other than (a) pursuant to any equity compensation or stock purchase plan that has been approved by the Company’s Board of Directors and stockholders, (b) pursuant to the conversion or exercise of Common Stock Equivalents, (c) in connection with bona fide business acquisitions by the Company or any of its subsidiariesSubsidiary is a party, whether or by mergerwhich any Shareholder, consolidation, sale of assets, sale or exchange of stock or otherwise, each as approved by the Company’s Board of Directors, and (d) in connection with bona fide commercial relationships of the Company or its subsidiariesany Subsidiary is bound relating to the ownership, as long as acquisition or disposition of the Outstanding Shares or any such issuance is not primarily intended interest therein, and there are no agreements, arrangements or understandings to provide which any Shareholder, the Company with equity financing. No Person has any right of first refusal, preemptive right, right of participation, or any similar right Subsidiary is a party or by which they are bound relating to participate in the transactions contemplated by this Agreement. As repurchase or redemption of any shares of the date Company's capital stock. Except as disclosed in Section 4.3 of this Agreement, except as set forth in the SEC Reports or as otherwise disclosed to the Purchaser in writing immediately prior to its execution of this AgreementDisclosure Schedule, there are no outstanding options, warrants, script warrants or other rights to subscribe to, calls for or commitments of any character whatsoever relating topurchase, or securities, rights or obligations securities convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stockthe Company's capital stock, there are no agreements, arrangements or contracts, commitments, understandings or arrangements by to which the Company or any subsidiary Subsidiary is a party or may become by which they are bound to issue additional shares of Common Stock or Common Stock Equivalents. The issuance and sale of the Investment Shares will not obligate the Company to issue shares of Common Stock or other securities of the Company to any Person (other than the Purchaser) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of 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 in all material respects 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 or the Board is required for the issuance and sale of the Investment Shares. There are no stockholders agreements or voting agreements with respect to the Company’s capital stock pursuant to which the Company is a partyor may be required to issue or sell additional shares of the Company's capital stock, and no person other than the Shareholders owns or holds any legal, equitable or beneficial interest in or right to any shares of the Company's capital stock or other equity interest in the Company of any nature whatsoever.
Appears in 1 contract
Capitalization of the Company. Immediately prior to the date of this Agreement, the The Company's authorized capital stock consists of the Company consisted of 350,000,000 5,000 shares of Common Stock, of which 83,895,354 shares are issued and outstanding, and 5,000,000 shares of Series A preferred stock, par value $0.001 .01 per shareshare ("Series A Preferred"), 3,010 shares of Series B preferred stock, par value $.01 per share ("Series B Preferred" and together with the Series A Preferred, the "Preferred Stock"), 5,000,000 shares of Class A common stock, par value $.01 per share ("Class A Common") and 1,000,000 shares of Class B common stock, par value $.01 per share ("Class B Common" and together with the Class A Common, the "Common Stock"), of which 2,070,000 1,990 shares of convertible preferred stock Series A Preferred, 3,010 shares of Series B Preferred and 1,000,000 shares of Class A Common are issued and outstandingoutstanding on the date hereof and held of record and beneficially by the Stockholders as set forth on Schedule -------- I. All such issued and outstanding Shares have been, and on the Closing Date - will be, duly authorized and validly issued and are, or will be on the Closing Date, fully paid and non-assessable. As No Shares were issued in violation of the date terms of this Agreement, any agreement or understanding binding upon the Company has or the Subsidiaries, and all Shares were issued in compliance with all applicable federal and state securities laws and regulations. Except for (a) the Shares listed on Schedule I hereto and (b) the stock options described on Schedule II ---------- ----------- attached hereto (the "Outstanding Stock Options"), there are not, and as of on the ClosingClosing Date there will not be, outstanding (i) any options, warrants or other rights to purchase from the Company will not have, issued any capital stock since its most recently filed periodic report under the Exchange Act, other than (a) pursuant to any equity compensation or stock purchase plan that has been approved by of the Company’s Board ; (ii) any securities convertible into or exchangeable for shares of Directors and stockholderssuch stock; (iii) any stock appreciation rights, (b) pursuant to the conversion or exercise of Common Stock Equivalents, (c) in connection with bona fide business acquisitions by the Company or any of its subsidiaries, whether by merger, consolidation, sale of assets, sale or exchange of phantom stock or otherwise, each as approved by the Company’s Board of Directors, and other similar rights or plans or (div) in connection with bona fide commercial relationships of the Company or its subsidiaries, as long as any such issuance is not primarily intended to provide the Company with equity financing. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by this Agreement. As of the date of this Agreement, except as set forth in the SEC Reports or as otherwise disclosed to the Purchaser in writing immediately prior to its execution of this Agreement, there are no outstanding options, warrants, script rights to subscribe to, calls or other 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 kind for or acquire, any shares the issuance of 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 Common Stock capital stock or Common Stock Equivalents. The issuance and sale of the Investment Shares will not obligate the Company to issue shares of Common Stock options, warrants or other securities of the Company to any Person (other than the Purchaser) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securitiesCompany. All As of the outstanding shares of capital stock of Closing Date, the Company are validly issued, fully paid and nonassessable, shall have been issued redeemed the Outstanding Stock Options in compliance in all material respects accordance 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 or the Board is required for the issuance and sale of the Investment Shares. There are no stockholders redemption agreements or voting agreements with respect to the Company’s capital stock to which between the Company is a partyand each Option Holder which are attached hereto as Exhibits B, C and D (the "Redemption ------------------- Agreements").
Appears in 1 contract
Capitalization of the Company. Immediately prior to the date of this Agreement, the The Company has authorized capital stock of the Company consisted of 350,000,000 (a) 200,000,000 shares of Common Stock, 121,141,392 of which 83,895,354 shares are issued and outstanding, and 5,000,000 (b) 4,995,000 shares of preferred stockseries B Preferred Stock, par value $0.001 per share, 0 of which 2,070,000 shares of convertible preferred stock are issued and outstandingoutstanding and (c) 5,000 shares of Series A Preferred Stock, all of which has been issued and subsequently converted to Common Stock (together with the Common Stock the “Capital Stock”). All of the issued and outstanding shares of the Capital Stock are duly authorized, validly issued, fully paid, non-assessable and, except for the Series B Stock, free of preemptive rights. There are no outstanding obligations of the Company to repurchase, redeem or otherwise acquire any of its securities excluding the Investors. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party or by which it is bound relating to the voting or registration of any shares of Capital Stock. As of the date of this Agreement, the Company has not, and as of the Closing, the Company will not have, issued any capital stock since its most recently filed periodic report under the Exchange Act, other than (a) pursuant to any equity compensation or stock purchase plan that has been approved by the Company’s Board of Directors and stockholdershereof, (bi) pursuant to the conversion or exercise of Common Stock Equivalents, (c) in connection with bona fide business acquisitions by the Company or any of its subsidiaries, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, each as approved by the Company’s Board of Directors, and (d) in connection with bona fide commercial relationships of the Company or its subsidiaries, as long as any such issuance is not primarily intended to provide the Company with equity financing. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by this Agreement. As of the date of this Agreement, except as set forth in the SEC Reports or as otherwise disclosed to the Purchaser in writing immediately prior to its execution of this Agreement, there are no outstanding options, warrants, script scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, securities or rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquireinto, any shares of Common Stockcapital stock of the Company or any of its subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any subsidiary of its subsidiaries is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents. The issuance and sale of the Investment Shares will not obligate the Company to issue shares of Common Stock or other securities capital stock of the Company or any of its subsidiaries or options, warrants, scrip, rights to any Person (other than the Purchaser) and will not result in a right subscribe to, calls or commitments of any holder of Company character whatsoever relating to, or securities to adjust the exerciseor rights convertible into, conversion, exchange or reset price under any of such securities. All of the outstanding shares of capital stock of the Company or any of its subsidiaries, (ii) there are validly issuedno outstanding debt securities, fully paid and nonassessable, have been issued in compliance in all material respects with all federal and state (iii) there are no agreements or arrangements under which the Company or any of its subsidiaries is obligated to register the sale of any of their securities Lawsunder the Securities Act, and none of such (iv) there are no outstanding shares was issued in violation of registration statements and there are no outstanding comment letters from the Commission or any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder or the Board is required for the issuance and sale of the Investment Sharesother regulatory agency. There are no stockholders agreements securities or voting agreements with respect to instruments containing anti-dilution or similar provisions that will be triggered by the Company’s capital stock to which issuance of the Company is a partyPreferred Stock as described in this Agreement.
Appears in 1 contract
Samples: Series B Convertible Preferred Stock Purchase Agreement (Nighthawk Systems Inc)
Capitalization of the Company. Immediately prior to the date of this Agreement, the authorized capital stock of the Company consisted of 350,000,000 shares of Common Stock, of which 83,895,354 shares are issued and outstanding, and 5,000,000 shares of preferred stock, par value $0.001 per share, of which 2,070,000 shares of convertible preferred stock are issued and outstanding. As of the date of this Agreement, the Company has not, and as of the Closing, the Company will not have, issued any capital stock since its most recently filed periodic report under the Exchange Act, other than (a) pursuant to any equity compensation or stock purchase plan that has been approved by the Company’s Board of Directors and stockholders, (b) pursuant to the conversion or exercise of Common Stock Equivalents, (c) in connection with bona fide business acquisitions by the Company or any of its subsidiaries, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, each as approved by the Company’s Board of Directors, and (d) in connection with bona fide commercial relationships of the Company or its subsidiaries, as long as any such issuance is not primarily intended to provide the Company with equity financing. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by this Agreement. As of the date of this Agreement, except an authorized capitalization as set forth in the SEC Reports or as otherwise disclosed to Registration Statement, the Purchaser in writing immediately prior to its execution of this Agreement, there are no outstanding options, warrants, script 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 Common Stock, or contracts, commitments, understandings or arrangements by which Pricing Disclosure Package and the Company or any subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents. The issuance and sale of Prospectus under the Investment Shares will not obligate the Company to issue shares of Common Stock or other securities of the Company to any Person (other than the Purchaser) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. All of heading “Capitalization;” all the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable and are not subject to any pre-emptive or similar rights; except as described in or expressly contemplated by the Pricing Disclosure Package and the Prospectus, there are no outstanding rights (including, without limitation, pre-emptive rights), warrants or options to acquire, or instruments convertible into or exchangeable for, any shares of capital stock or other equity interest in the Company, or any contract, commitment, agreement, understanding or arrangement of any kind relating to the issuance of any capital stock or other equity interests of the Company, any such convertible or exchangeable securities or any such rights, warrants or options; the capital stock or other equity interests of the Company, as the case may be, conforms in all material respects to the description thereof contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus; and the Company owns 26.2% of the issued and outstanding JEH LLC Units (or such additional amount to reflect the exercise of the Underwriters’ option to purchase Option Shares pursuant to Section 2 hereof); such JEH LLC Units have been duly and validly authorized and issued, fully paid and nonassessablenon-assessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act, have been issued in compliance in all material respects with all federal and state securities Lawsas applicable, and none of such outstanding shares was issued limited to the extent set forth in violation JEH LLC’s organizational documents) and are owned by the Company, free and clear of any preemptive rights lien, charge, encumbrance, security interest, restriction on voting or similar rights to subscribe for transfer or purchase securities. No further approval or authorization any other claim of any stockholder or third party, except as may exist pursuant to that certain Credit Agreement, dated as of December 31, 2009, among Xxxxx Energy Holdings, LLC, as Borrower, Xxxxx Fargo Bank, N.A., as Administrative Agent, Xxxxx Fargo Securities, LLC, as Sole Lead Arranger and Sole Bookrunner, and the Board is required for lenders thereto, as amended through the issuance and sale of date hereof (the Investment Shares. There are no stockholders agreements or voting agreements with respect to the Company’s capital stock to which the Company is a party“Credit Agreement”).
Appears in 1 contract
Samples: Jones Energy, Inc.
Capitalization of the Company. Immediately prior to the date of this Agreement, the The authorized capital stock of the Company consisted consists of 350,000,000 60,000,000 shares of Common Stock, par value $0.01 per share, of which 83,895,354 which, as of the date hereof, 42,828,563 shares are issued outstanding and outstandingheld by persons or entities other than a Company Subsidiary, no shares are outstanding and held by a Company Subsidiary and no shares are held in the Company's treasury; 5,000,000 shares of preferred stockPreferred Stock, par value $0.001 0.01 per share, of which 2,070,000 shares of convertible preferred stock are issued and outstanding. As which, as of the date of this Agreementhereof, the 1,380,000 shares designated as $2.25 Convertible Exchangeable Preferred Stock are outstanding and held by persons or entities other than a Company has notSubsidiary and no shares designated as such are held by a Company Subsidiary, 2,750 shares designated as Series A Convertible Preferred Stock are outstanding and held by persons or entities other than a Company Subsidiary and no shares designated as such are held by a Company Subsidiary, and as no such shares of the Closing, the Company will not have, issued any capital stock since its most recently filed periodic report under the Exchange Act, other than (a) pursuant to any equity compensation or stock purchase plan that has been approved by either such designation are held in the Company’s Board of Directors and stockholders, (b) pursuant to the conversion or exercise of Common Stock Equivalents, (c) in connection with bona fide business acquisitions by the Company or any of its subsidiaries, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, each as approved by the Company’s Board of Directors, and (d) in connection with bona fide commercial relationships of the Company or its subsidiaries, as long as any such issuance is not primarily intended to provide the Company with equity financing. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by this Agreement. As of the date of this Agreement, except as set forth in the SEC Reports or as otherwise disclosed to the Purchaser in writing immediately prior to its execution of this Agreement, there are no outstanding options, warrants, script 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 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 Common Stock or Common Stock Equivalents. The issuance and sale of the Investment Shares will not obligate the Company to issue shares of Common Stock or other securities of the Company to any Person (other than the Purchaser) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities's treasury. All of the outstanding shares of capital stock of the Company have been validly issued and are validly issued, fully paid and nonassessable, and no shares of capital stock of the Company are subject to, nor have any been issued in violation of, preemptive or similar rights. All issuances, sales, and repurchases by the Company of shares of its capital stock have been effected in compliance in all material respects with all Applicable Laws, including without limitation applicable federal and state securities Lawslaws. Schedule 3.4 describes all outstanding options and warrants to purchase Company Stock, and none the aggregate number of shares of Company Common Stock reserved for issuance and issuable upon the exercise of outstanding warrants and stock options. Except as set forth above in this Section and on Schedule 3.4, there are (and as of the Closing Date there will be) outstanding (i) no shares of capital stock or other voting securities of the Company, (ii) no securities of the Company convertible into or exchangeable for shares of capital stock or other voting securities of the Company, (iii) no options, warrants or other rights (including preemptive rights) to acquire from the Company, and no obligation of the Company to issue or sell, any shares of capital stock or other voting securities of the Company or any securities of the Company convertible into or exchangeable for such outstanding shares was issued capital stock or voting securities, and (iv) no equity equivalents, interests in violation of any preemptive rights the ownership or earnings, or other similar rights to subscribe for of or purchase securities. No further approval or authorization of any stockholder or the Board is required for the issuance and sale of the Investment Shares. There are no stockholders agreements or voting agreements with respect to the Company’s capital stock to which . There are (and as of the Closing Date there will be) no outstanding obligations of the Company or any Subsidiary to repurchase, redeem, or otherwise acquire any of the foregoing shares, securities, options, warrants, equity equivalents, interests, or rights. The Company is not a partyparty to, and is not aware of, any voting agreement, voting trust, or similar agreement or arrangement relating to any class or series of its capital stock. The classes of Company Stock denominated as Company Common Stock and Company Convertible Exchangeable Preferred Stock are each listed for trading and trade on the NASDAQ NMS.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Dna Plant Technology Corp)
Capitalization of the Company. Immediately prior to the date of this Agreement, the The Company has authorized capital stock of the Company consisted of 350,000,000 (a) 50,000,000 shares of Common Stock, 49,993,987 of which 83,895,354 shares are issued and outstanding, and 5,000,000 shares of preferred stock, par value $0.001 per share, of which 2,070,000 shares of convertible preferred stock are issued and outstanding. As of the date of this Agreement, the Company has not, and as of the Closing, the Company will not have, issued any capital stock since its most recently filed periodic report under the Exchange Act, other than (a) pursuant to any equity compensation or stock purchase plan that has been approved by the Company’s Board of Directors and stockholders, (b) pursuant to 1,000,000 shares of Preferred Stock of which 72,000 shares of Series A Preferred Stock have been authorized but none of which is issued and outstanding (together with the conversion or exercise of Common Stock EquivalentsStock, (c) in connection with bona fide business acquisitions by the Company or any of its subsidiaries, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, each as approved by the Company’s Board of Directors, and (d) in connection with bona fide commercial relationships “Capital Stock”). All of the Company or its subsidiaries, as long as any such issuance is not primarily intended to provide the Company with equity financing. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by this Agreement. As issued and outstanding shares of the date Capital Stock are duly authorized, validly issued, fully paid, non-assessable and free of this Agreement, except preemptive rights. Except as set forth in the Disclosure Schedule, the Transaction Documents or the SEC Reports Documents (a) there are no outstanding obligations of the Company to repurchase, redeem or as otherwise disclosed acquire any of its securities, (b) there are no stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party or by which it is bound relating to the Purchaser in writing immediately prior to its execution voting or registration of this Agreementany shares of Capital Stock, (c) there are no outstanding options, warrants, script scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, securities or rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquireinto, any shares of Common Stockcapital stock of the Company or any of its subsidiaries, or (d) there are no contracts, commitments, understandings or arrangements by which the Company or any subsidiary of its subsidiaries is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents. The issuance and sale of the Investment Shares will not obligate the Company to issue shares of Common Stock or other securities capital stock of the Company or any of its subsidiaries or options, warrants, scrip, rights to any Person (other than the Purchaser) and will not result in a right subscribe to, calls or commitments of any holder of Company character whatsoever relating to, or securities to adjust the exerciseor rights convertible into, conversion, exchange or reset price under any of such securities. All of the outstanding shares of capital stock of the Company are validly issuedor any of its subsidiaries, fully paid and nonassessable, have been issued in compliance in all material respects 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 or the Board is required for the issuance and sale of the Investment Shares. There (e) there are no stockholders outstanding debt securities, (f) there are no agreements or voting agreements with respect to the Company’s capital stock to arrangements under which the Company or any of its subsidiaries is a partyobligated to register the sale of any of their securities under the Securities Act, (g) there are no outstanding registration statements or comment letters from the SEC or any other regulatory agency and (h)there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Preferred Stock as described in this Agreement.
Appears in 1 contract
Samples: Series a Convertible Preferred Stock Purchase Agreement (Locateplus Holdings Corp)
Capitalization of the Company. Immediately prior to the date The authorized Interests of this Agreement, the authorized capital stock of the Company consisted of 350,000,000 shares of Common StockMetal Resources consist of: (i) 400,000 Series A Preferred Units, of which 83,895,354 shares 400,000 are issued and outstanding, (ii) 400,000 Series A-1 Preferred Units, of which 400,000 are issued and outstanding, (iii) 400,000 Series B Preferred Units, of which 400,000 are issued and outstanding, (iv) 259,261 Series D Preferred Units, of which 259,261 are issued and outstanding, and 5,000,000 shares of preferred stock, par value $0.001 per share(v) 258,484 Series C Common Units, of which 2,070,000 shares of convertible preferred stock 258,484 are issued and outstanding. As of the date of this Agreement, the Company has not, and as of the Closing, the Company will not have, issued any capital stock since its most recently filed periodic report under the Exchange Act, other than (a) pursuant to any equity compensation or stock purchase plan that has been approved by the Company’s Board of Directors and stockholders, (b) pursuant to the conversion or exercise of Common Stock Equivalents, (c) in connection with bona fide business acquisitions by the Company or any of its subsidiaries, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, each as approved by the Company’s Board of Directors, and (d) in connection with bona fide commercial relationships of the Company or its subsidiaries, as long as any such issuance is not primarily intended to provide the Company with equity financing. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by this Agreement. As of the date of this Agreement, except as set forth in the SEC Reports or as otherwise disclosed to the Purchaser in writing immediately prior to its execution of this Agreement, there are no outstanding options, warrants, script 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 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 Common Stock or Common Stock Equivalents. The issuance and sale of the Investment Shares will not obligate the Company to issue shares of Common Stock or other securities of the Company to any Person (other than the Purchaser) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. All of the issued and outstanding shares of capital stock of the Company Interests were duly authorized and validly issued and are validly issued, fully paid and nonassessable, have been . None of the issued in compliance in all material respects with all federal and state securities Laws, and none of such outstanding shares was Interests were issued in violation of any preemptive rights Law. The Sellers collectively are and will be at the Closing the record and beneficial owners and holders of all of the issued and outstanding Interests, free and clear of all Encumbrances other than the Permitted Restrictions, as defined below. Except as set forth on Schedule 3.3, there are no contracts relating to the issuance, sale or similar rights to subscribe for or purchase securities. No further approval or authorization transfer of any stockholder Interests or other equity or equity-based securities of the Company. Metal Resources owns one hundred percent (100%) of the limited liability company membership interests of the Company ("Company Membership Interests"). The Interests and the Company Membership Interests are validly issued and outstanding and are owned beneficially and of record by Sellers and Metal Resources, respectively, free and clear of any mortgage, security interest, pledge, lien, charge, claim, lease, conditional sale or other title retention agreement, easement, limitation, commitment, encroachment, restriction or other encumbrance (each an "Encumbrance" and collectively, the "Encumbrances") other than as provided in Metal Resources' and the Company's Certificates of Formation, the Metal LLC Agreement, the Company's Limited Liability Company Agreement ("Company LLC Agreement"), the Delaware Limited Liability Company Act, as amended, the Securities Act of 1933, as amended, and any state securities laws (collectively, the "Permitted Restrictions"). Except as set forth on Schedule 3.3, no limited liability company membership interests of Metal Resources or the Board is required Company are reserved for the issuance issuance, and sale of the Investment Shares. There there are no stockholders issued and outstanding contracts, demands, commitments, options, warrants, rights of first refusal, offers, subscriptions, preemptive rights, claims of any character or other agreements or voting agreements with respect to the Company’s capital stock understandings to which Metal Resources or the Company is bound relating to the limited liability company membership interests of Metal Resources or the Company (including, without limitation, the Interests or the Company Membership Interests) or pursuant to which Metal Resources or the Company is or may become obligated to sell, transfer, assign, issue or exchange any limited liability company membership interests, or by which any person or entity has any right to acquire an interest in any limited liability company membership interests of Metal Resources or the Company. Except as provided in the Metal LLC Agreement or Company LLC Agreement, or as set forth on Schedule 3.3, no portion of the Interests or the Company Membership Interests are subject, and neither Sellers nor Metal Resources is a partyparty to, any voting trust, proxy or other contract, agreement, arrangement, commitment or understanding relating thereto.
Appears in 1 contract
Samples: Limited Liability Company Interest Purchase Agreement (Atlas Industries Holdings LLC)
Capitalization of the Company. Immediately prior to the date of this Agreement, the authorized capital stock of the Company consisted of 350,000,000 shares of Common Stock, of which 83,895,354 shares are issued and outstanding, and 5,000,000 shares of preferred stock, par value $0.001 per share, of which 2,070,000 shares of convertible preferred stock are issued and outstanding. (a) As of the date of this Agreement, (i) the issued and outstanding share capital of the Company has notconsists of 16,094,329 Company Ordinary Shares, 8,299,000 Company Non-Voting Shares and 2,414,600 Company Series A Preference Shares, and (ii) there are Restricted Share Awards outstanding that provide for the future issuance of currently unvested 3,019,715 Company Non-Voting Shares. Set forth in Section 5.6(a) of the Company Disclosure Letter is a true, correct and complete list of each legal owner of Company Shares or other Equity Securities of the Company and the number of Company Shares or other Equity Securities held by each such holder as of the Closing, date hereof. Except as set forth in Section 5.6(a) of the Company will not haveDisclosure Letter, as of the date hereof there are no other ordinary shares, preferred shares or other Equity Securities of the Company authorized, reserved for issuance, issued or outstanding. All of the issued and outstanding Company Shares have been duly authorized and validly issued and allotted and are fully paid or credited as fully paid-up and contributions were not paid back; have been offered, issued, sold and transferred in compliance with applicable Law, including the Singapore Companies Act and federal and state securities Laws, and including any capital stock since its most recently filed periodic report filings and returns required under the Exchange Act, other than (a) pursuant any applicable Law to any equity compensation be delivered or stock purchase plan that has been approved by the Company’s Board of Directors and stockholders, (b) pursuant to the conversion or exercise of Common Stock Equivalents, (c) in connection with bona fide business acquisitions made by the Company in respect of such offer, sale, transfer or any of its subsidiaries, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, each as approved by the Company’s Board of Directorsissuance, and all requirements set forth in (d1) in connection with bona fide commercial relationships the Governing Documents of the Company and (2) any other applicable Contracts governing the issuance or its subsidiariesallotment of such securities; are not subject to, as long as nor have they been issued in violation of, any such issuance is not primarily intended to provide the Company with equity financing. No Person has any purchase option, call option, right of first refusal, preemptive right, subscription right of participation, or any similar right to participate in the transactions contemplated by this Agreement. As of the date of this Agreement, except as set forth in the SEC Reports or as otherwise disclosed to the Purchaser in writing immediately prior to its execution of this Agreement, there are no outstanding options, warrants, script rights to subscribe to, calls or commitments under any provision of any character whatsoever relating toapplicable Law, 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 the Governing Documents of 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 Common Stock or Common Stock Equivalents. The issuance and sale of the Investment Shares will not obligate the Company to issue shares of Common Stock or other securities of the Company to any Person (other than the Purchaser) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of 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 in all material respects 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 or the Board is required for the issuance and sale of the Investment Shares. There are no stockholders agreements or voting agreements with respect to the Company’s capital stock Contract to which the Company is a partyparty or otherwise bound; and are free and clear of any Liens.
Appears in 1 contract
Samples: Business Combination Agreement (Fat Projects Acquisition Corp)
Capitalization of the Company. Immediately prior to the date (a) The authorized, issued and outstanding shares of this Agreement, the authorized all classes of capital stock of the Company consisted is set forth in Schedule 3.3 hereto. Upon issuance, the Shares will constitute 51.0% of 350,000,000 the aggregate voting power of all the issued and outstanding voting securities of the Company on a fully diluted basis (i.e., after giving effect to the exercise of all options, warrants, or similar rights to acquire shares of Common Stock, of which 83,895,354 shares are issued other than the Note). The Shares have been duly authorized for issuance and outstanding, and 5,000,000 shares of preferred stock, par value $0.001 per share, of which 2,070,000 shares of convertible preferred stock are issued and outstanding. As of sale to Spotless pursuant to the date terms of this Agreement, the Company has notand, and as upon payment of the ClosingPurchase Price and delivery of the certificates representing the Shares, the Company Shares will be validly issued and fully paid and nonassessable. The issuance of the Shares is not have, issued any capital stock since its most recently filed periodic report under the Exchange Act, other than (a) pursuant subject to any equity compensation preemptive or stock purchase plan that has been approved by the Company’s Board of Directors and stockholders, (b) pursuant to the conversion or exercise of Common Stock Equivalents, (c) in connection with bona fide business acquisitions by the Company or any of its subsidiaries, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, each as approved by the Company’s Board of Directors, and (d) in connection with bona fide commercial relationships of the Company or its subsidiaries, as long as any such issuance is not primarily intended to provide the Company with equity financingother similar rights. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by this Agreement. As of the date of this Agreement, except Except as set forth in Schedule 3.3, the SEC Reports or as otherwise disclosed to the Purchaser in writing immediately prior to its execution of this Agreement, there are no outstanding options, warrants, script 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 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 Common Stock or Common Stock Equivalents. The issuance and sale Series B Preferred to be issued upon conversion of the Investment Shares will not obligate Note, as the Company to issue case may be, and the shares of Common Stock or other securities to be issued upon conversion of the Company to Series B Preferred will be, upon any Person (other than the Purchaser) and will not result in a right of any holder of Company securities to adjust the exercise, such conversion, exchange or reset price under any of such securitiesduly authorized, validly issued, fully paid and nonassessable. All of the issued and outstanding shares of capital stock of the Company are duly authorized, validly issued, fully full paid and nonassessable. Except as disclosed in Schedule 3.3 hereto, have been issued in compliance in all material respects 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 or the Board is required for the issuance and sale of the Investment Shares. There there are no stockholders agreements agreements, arrangements or voting agreements with respect to the Company’s capital stock understandings (including, without limitation, options or warrants), to which the Company is a party, or by which the Company is bound relating to the issuance, acquisition or disposition of any shares of capital stock of the Company or any interest therein, and there are no agreements, arrangements or understandings to which the Company is a party or by which it is bound relating to the repurchase or redemption of any shares of its capital stock. Except for the options, warrants and other rights listed on Schedule 3.3 hereto, there are no outstanding options, warrants or other rights to subscribe for or purchase, or securities convertible into or exchangeable for, shares of the Company's capital stock, and there are no agreements, arrangements or understandings to which the Company is a party or by which it is bound pursuant to which the Company is or may be required to issue or sell additional shares of its capital stock.
Appears in 1 contract
Capitalization of the Company. Immediately prior to the date of this Agreement, the (a) The authorized capital stock of the Company consisted consists of 350,000,000 (i) 50,000,000 shares of Company Common Stock, of which 83,895,354 7,179,429 shares are currently issued and outstanding, outstanding and 5,000,000 (ii) 15,000,000 shares of preferred stock, $.001 par value $0.001 per sharevalue, of which 2,070,000 shares of convertible preferred stock 3,250 Preferred Shares are currently issued and outstanding. As of the date of this Agreement, the Company has not, and as of the Closing, the Company will not have, issued any capital stock since its most recently filed periodic report under the Exchange Act, other than (a) pursuant to any equity compensation or stock purchase plan that has been approved by the Company’s Board of Directors and stockholders, (b) pursuant to the conversion or exercise of Common Stock Equivalents, (c) in connection with bona fide business acquisitions by the Company or any of its subsidiaries, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, each as approved by the Company’s Board of Directors, and (d) in connection with bona fide commercial relationships of the Company or its subsidiaries, as long as any such issuance is not primarily intended to provide the Company with equity financing. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by this Agreement. As of the date of this Agreement, except as set forth in the SEC Reports or as otherwise disclosed to the Purchaser in writing immediately prior to its execution of this Agreement, there are no outstanding options, warrants, script 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 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 Common Stock or Common Stock Equivalents. The issuance and sale of the Investment Shares will not obligate the Company to issue shares of Common Stock or other securities of the Company to any Person (other than the Purchaser) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. All of the outstanding shares of capital stock of the Company are have been validly issued, and are fully paid paid, nonassessable and nonassessablefree of preemptive rights. Set forth in Schedule 4.2(a) are all outstanding options, have been issued warrants, or other --------------- rights to purchase capital stock of the Company from the Company. Except as set forth above or in compliance in all material respects with all federal and state Schedule 4.2(a), there are outstanding (A) no shares of --------------- capital stock or other voting securities Lawsof the Company, (B) no securities of the Company convertible into or exchangeable for shares of capital stock or voting securities of the Company, (C) no options, subscriptions, warrants, convertible securities, calls or other rights to acquire from the Company, and none no obligation of such outstanding shares was issued the Company to issue, deliver or sell, any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company, and (D) no equity equivalents, performance shares, interests in violation the ownership or earnings of any preemptive rights the Company or other similar rights issued by the Company (the items referred to subscribe for or purchase securitiesin clauses (A)-(D) are referred to herein as "COMPANY SECURITIES"). No further approval or authorization of any stockholder or the Board is required for the issuance and sale Except as set forth on Schedule 4.2(a) hereto, (i) there are no outstanding obligations of the Investment Shares. There are Company --------------- to repurchase, redeem or otherwise acquire any Company Securities, (ii) no stockholders agreements agreement or voting agreements other document grants or imposes on any shares of the Company Common Stock any right, preference, privilege or restriction with respect to the Company’s capital stock transactions contemplated hereby (including without limitation any rights of first refusal), other than the right to which dissent from the Merger as provided in Section 2.1(e) above and (iii) there are no bonds, debentures, notes or other indebtedness having general voting rights (or convertible into securities having such rights) of the Company is a partyissued and outstanding.
Appears in 1 contract
Capitalization of the Company. Immediately prior to the date of this Agreement, the The Company has authorized capital stock of the Company consisted of 350,000,000 (a) two hundred fifty million (250,000,000) shares of Common Stock, six million three hundred eighty seven thousand three hundred seventy-two (6,387,372) of which 83,895,354 shares are issued and outstanding, and 5,000,000 (b) ten million (10,000,000) shares of preferred stockSeries A Stock, par value $0.001 per share, seven million four hundred thirty-three thousand nine hundred eighty-eight (7,433,988) shares of which 2,070,000 shares of convertible preferred stock are issued and outstandingoutstanding (together with the Common Stock, the “Capital Stock”). All of the issued and outstanding shares of the Capital Stock are duly authorized, validly issued, fully paid, non-assessable and, except for the Preferred Stock, free of preemptive rights. There are no outstanding obligations of the Company to repurchase, redeem or otherwise acquire any of its securities. There are no stockholder agreements, voting trusts or other agreements or understandings to which the Company is a party or by which it is bound relating to the voting or registration of any shares of Capital Stock. As of the date of this Agreement, the Company has not, and as of the Closing, the Company will not have, issued any capital stock since its most recently filed periodic report under the Exchange Act, other than (a) pursuant to any equity compensation or stock purchase plan that has been approved by the Company’s Board of Directors and stockholdershereof, (bi) pursuant to the conversion or exercise of Common Stock Equivalents, (c) in connection with bona fide business acquisitions by the Company or any of its subsidiaries, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, each as approved by the Company’s Board of Directors, and (d) in connection with bona fide commercial relationships of the Company or its subsidiaries, as long as any such issuance is not primarily intended to provide the Company with equity financing. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by this Agreement. As of the date of this Agreement, except as set forth in the SEC Reports or as otherwise disclosed to the Purchaser in writing immediately prior to its execution of this AgreementSchedule 3.3, there are no outstanding options, warrants, script scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, securities or rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquireinto, any shares of Common StockCapital Stock of the Company or any of its subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any subsidiary of its subsidiaries is or may become bound to issue additional shares of Common Capital Stock or Common Stock Equivalents. The issuance and sale of the Investment Shares will not obligate the Company to issue shares of Common Stock or other securities of the Company or any of its subsidiaries or options, warrants, scrip, rights to any Person (other than the Purchaser) and will not result in a right subscribe to, calls or commitments of any holder of Company character whatsoever relating to, or securities to adjust the exerciseor rights convertible into, conversion, exchange or reset price under any of such securities. All of the outstanding shares of capital stock of the Company or any of its subsidiaries, (ii) there are validly issuedno outstanding debt securities, fully paid and nonassessable, have been issued in compliance in all material respects with all federal and state (iii) there are no agreements or arrangements under which the Company or any of its subsidiaries is obligated to register the sale of any of their securities Lawsunder the Securities Act, and none of such (iv) there are no outstanding shares was issued in violation of registration statements and there are no outstanding comment letters from the Commission (as defined herein) or any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder or the Board is required for the issuance and sale of the Investment Sharesother regulatory agency. There are no stockholders agreements securities or voting agreements with respect to instruments containing anti-dilution or similar provisions that will be triggered by the Company’s capital stock to which issuance of the Company is a partyPreferred Stock as described in this Agreement.
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (Enigma Software Group, Inc)
Capitalization of the Company. Immediately prior to the date of this Agreement, the authorized capital stock of the Company consisted of 350,000,000 shares of Common Stock, of which 83,895,354 shares are issued and outstanding, and 5,000,000 shares of preferred stock, par value $0.001 per share, of which 2,070,000 shares of convertible preferred stock are issued and outstanding. (a) As of the date of this Agreement, the Company has not, and as authorized equity interests of the Closing, Company that are issued and outstanding equity interests of the Company will not have, issued any capital stock since its most recently filed periodic report under the Exchange Act, other than consist of (ai) pursuant to any equity compensation or stock purchase plan that has been approved by the Company’s Board of Directors and stockholders71,882,729 Company Common Interests, (bii) pursuant to 73,723,250 Class A Preferred Interests of the conversion or Company (the “Class A Preferred Interests”), (iii) 34,023,527 Class B Preferred Interests of the Company (the “Class B Preferred Interests”), (iv) 37,642,050 Class C Preferred Interests of the Company (the “Class C Preferred Interests”), (v) 36,909,359 Class D Preferred Interests of the Company (the “Class D Preferred Interests”), (vi) 112,949,305 Class E Preferred Interests of the Company (the “Class E Preferred Interests”), (vii) the Company Common Interests issuable upon the exercise of Common Stock Equivalentsoutstanding Company Options, including vesting schedule and exercise price, as set forth on Section 4.6(a) of the Company Disclosure Letter, (cviii) in connection with bona fide business acquisitions by the Profits Interests, including the applicable participation threshold corresponding thereto, as set forth on Section 4.6(a) of the Company or any of its subsidiaries, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, each as approved by the Company’s Board of DirectorsDisclosure Letter, and (dix) in connection with bona fide commercial relationships the Restricted Interests, as set forth on Section 4.6(a) of the Company or its subsidiaries, as long as any such issuance is not primarily intended to provide Disclosure Letter. Except for the rights provided for in the Company LLC Agreement, and the securities and rights described on Section 4.6(a) of the Company Disclosure Letter, there are no other authorized equity interests of the Company that are issued and outstanding. All of the issued and outstanding Company Interests (i) have been duly authorized and validly issued and are fully paid and non-assessable; (ii) have been offered, sold and issued in compliance with equity financing. No Person has applicable Law, including federal and state securities Laws, and all requirements set forth in (1) the Governing Documents of the Company and (2) any other applicable Contracts governing the issuance of such securities; (iii) are not subject to, nor have they been issued in violation of, any purchase option, call option, right of first refusal, preemptive right, subscription right of participation, or any similar right to participate in the transactions contemplated by this Agreement. As of the date of this Agreement, except as set forth in the SEC Reports or as otherwise disclosed to the Purchaser in writing immediately prior to its execution of this Agreement, there are no outstanding options, warrants, script rights to subscribe to, calls or commitments under any provision of any character whatsoever relating toapplicable Law, 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 the Governing Documents of 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 Common Stock or Common Stock Equivalents. The issuance and sale of the Investment Shares will not obligate the Company to issue shares of Common Stock or other securities of the Company to any Person (other than the Purchaser) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of 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 in all material respects 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 or the Board is required for the issuance and sale of the Investment Shares. There are no stockholders agreements or voting agreements with respect to the Company’s capital stock Contract to which the Company is a partyparty or otherwise bound; and (iv) are free and clear of any Liens.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Aspirational Consumer Lifestyle Corp.)
Capitalization of the Company. Immediately prior to the date (i) The authorized, issued and outstanding shares of this Agreement, the authorized all classes of capital stock of the Company consisted is set forth in Schedule 3.3 hereto. Upon issuance, the Shares will constitute 51.0% of 350,000,000 the aggregate voting power of all the issued and outstanding voting securities of the Company on a fully diluted basis (i.e., after giving effect to the exercise of all options, warrants, or similar rights to acquire shares of Common Stock, of which 83,895,354 shares are issued other than the Note). The Shares have been duly authorized for issuance and outstanding, and 5,000,000 shares of preferred stock, par value $0.001 per share, of which 2,070,000 shares of convertible preferred stock are issued and outstanding. As of sale to Spotless pursuant to the date terms of this Agreement, the Company has notand, and as upon payment of the ClosingPurchase Price and delivery of the certificates representing the Shares, the Company Shares will be validly issued and fully paid and nonassessable. The issuance of the Shares is not have, issued any capital stock since its most recently filed periodic report under the Exchange Act, other than (a) pursuant subject to any equity compensation preemptive or stock purchase plan that has been approved by the Company’s Board of Directors and stockholders, (b) pursuant to the conversion or exercise of Common Stock Equivalents, (c) in connection with bona fide business acquisitions by the Company or any of its subsidiaries, whether by merger, consolidation, sale of assets, sale or exchange of stock or otherwise, each as approved by the Company’s Board of Directors, and (d) in connection with bona fide commercial relationships of the Company or its subsidiaries, as long as any such issuance is not primarily intended to provide the Company with equity financingother similar rights. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by this Agreement. As of the date of this Agreement, except Except as set forth in Schedule 3.3, the SEC Reports or as otherwise disclosed to the Purchaser in writing immediately prior to its execution of this Agreement, there are no outstanding options, warrants, script 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 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 Common Stock or Common Stock Equivalents. The issuance and sale Series B Preferred to be issued upon conversion of the Investment Shares will not obligate Note, as the Company to issue case may be, and the shares of Common Stock or other securities to be issued upon conversion of the Company to Series B Preferred will be, upon any Person (other than the Purchaser) and will not result in a right of any holder of Company securities to adjust the exercise, such conversion, exchange or reset price under any of such securitiesduly authorized, validly issued, fully paid and nonassessable. All of the issued and outstanding shares of capital stock of the Company are duly authorized, validly issued, fully full paid and nonassessable. Except as disclosed in Schedule 3.3 hereto, have been issued in compliance in all material respects 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 or the Board is required for the issuance and sale of the Investment Shares. There there are no stockholders agreements agreements, arrangements or voting agreements with respect to the Company’s capital stock understandings (including, without limitation, options or warrants), to which the Company is a party, or by which the Company is bound relating to the issuance, acquisition or disposition of any shares of capital stock of the Company or any interest therein, and there are no agreements, arrangements or understandings to which the Company is a party or by which it is bound relating to the repurchase or redemption of any shares of its capital stock. Except for the options, warrants and other rights listed on Schedule 3.3 hereto, there are no outstanding options, warrants or other rights to subscribe for or purchase, or securities convertible into or exchangeable for, shares of the Company's capital stock, and there are no agreements, arrangements or understandings to which the Company is a party or by which it is bound pursuant to which the Company is or may be required to issue or sell additional shares of its capital stock.
Appears in 1 contract
Samples: Subscription Agreement (Windswept Environmental Group Inc)
Capitalization of the Company. Immediately prior to The authorized, issued and outstanding shares of all classes of capital stock of the date Company, and the record ownership thereof, is set forth in Section 4.5 of this Agreement, the authorized Disclosure Schedule. The Subject Shares constitute 100% of the issued and outstanding shares of the capital stock of the Company consisted on a fully diluted basis (i.e., after giving effect to the exercise of 350,000,000 all options, warrants or similar rights to acquire shares of Common Stock, of which 83,895,354 shares are issued and outstandingstock), and 5,000,000 there are no other shares of preferred stockany class of capital stock authorized, par value $0.001 per share, of which 2,070,000 shares of convertible preferred stock are issued and outstanding. As or outstanding as of the date of this Agreement, the Company has not, and as hereof. All of the ClosingSubject Shares were duly and validly authorized and issued and are fully paid and non-assessable, except as provided in Section 180.0622(2)(b) of the Company will not haveWisconsin Statutes. Except as disclosed in Section 4.5 of the Disclosure Schedule, issued there are no agreements, arrangements or understandings (including, without limitation, options or rights of first refusal), to which any capital stock since its most recently filed periodic report under the Exchange ActShareholder, other than (a) pursuant to any equity compensation or stock purchase plan that has been approved by the Company’s Board of Directors and stockholders, (b) pursuant to the conversion or exercise of Common Stock Equivalents, (c) in connection with bona fide business acquisitions by the Company or any of its subsidiariesSubsidiary is a party, whether or by mergerwhich any Shareholder, consolidation, sale of assets, sale or exchange of stock or otherwise, each as approved by the Company’s Board of Directors, and (d) in connection with bona fide commercial relationships of the Company or its subsidiariesany Subsidiary is bound relating to the ownership, as long as acquisition or disposition of the Subject Shares or any such issuance is not primarily intended interest therein, and there are no agreements, arrangements or understandings to provide which any Shareholder, the Company with equity financing. No Person has any right of first refusal, preemptive right, right of participation, or any similar right Subsidiary is a party or by which they are bound relating to participate in the transactions contemplated by this Agreement. As repurchase or redemption of any shares of the date of this Agreement, except as set forth in the SEC Reports or as otherwise disclosed to the Purchaser in writing immediately prior to its execution of this Agreement, there Company's capital stock. There are no outstanding options, warrants, script warrants or other rights to subscribe to, calls for or commitments of any character whatsoever relating topurchase, or securities, rights or obligations securities convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stockthe Company's capital stock, there are no agreements, arrangements or contracts, commitments, understandings or arrangements by to which the Company or any subsidiary Subsidiary is a party or may become by which they are bound to issue additional shares of Common Stock or Common Stock Equivalents. The issuance and sale of the Investment Shares will not obligate the Company to issue shares of Common Stock or other securities of the Company to any Person (other than the Purchaser) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of 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 in all material respects 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 or the Board is required for the issuance and sale of the Investment Shares. There are no stockholders agreements or voting agreements with respect to the Company’s capital stock pursuant to which the Company is a partyor may be required to issue or sell additional shares of the Company's capital stock, and no person other than the Shareholders owns or holds any legal, equitable or beneficial interest in or right to any shares of the Company's capital stock or other equity interest in the Company of any nature whatsoever. Except as set forth on Section 4.5 of the Disclosure Schedule, the Company does not have any stock appreciation rights, "phantom stock" rights, performance share plans or similar equity-based compensation plans (collectively, "SAR Plans").
Appears in 1 contract
