Capitalization; Options. (a) The Company is authorized to issue 250,000,000 shares of Common Stock, par value $0.00001 per share, 38,197,596 of which are issued and outstanding as of the date hereof, (“Common Stock”) and 25,000,000 shares of Series A Preferred Stock, none of which are issued and outstanding as of the date hereof (prior to giving effect to the transactions contemplated by this Agreement).
(b) All of the Purchase Shares when issued to the Buyer in accordance with the terms of this Agreement shall be legally and validly issued, fully paid and non-assessable, free and clear of all Liens. The shares of Common Stock issuable upon conversion of the Purchase Shares or the exercise of the Warrant (the “Conversion Shares”) have been duly and validly reserved on the books and records of the Company and, when issued upon conversion of the Purchase Shares in accordance with the terms of the Certificate of Designations and the Warrant and applicable Governmental Rules, shall be legally and validly issued, fully paid and nonassessable, free and clear of all Liens.
(c) Other than the Common Stock and the Series A Preferred Stock, there are no other series or classes of capital stock of the Company authorized or issued and outstanding. Except as set forth in the SEC Filings, there are no outstanding warrants, options, contracts, rights (preemptive or otherwise), calls, commitments or other instruments convertible into or exchangeable for shares of capital stock of the Company or any of the Company’s Subsidiaries, in each such case, to which the Company or any of Company’s Subsidiaries is a party and which relates to the sale or issuance of shares of capital stock of the Company or of any of Company’s Subsidiaries (collectively, the “Company Instruments”). Except as set forth in the SEC Filings or as contemplated by this Agreement and the Transaction Documents, (i) the Company has not agreed to register any shares of its capital stock under the Securities Act or granted registration rights with respect to shares of its capital stock to any Person and (ii) there are no voting trusts, stockholders agreements, proxies or other agreements or understandings in effect to which the Company is a party with respect to the voting or transfer of any shares of Common Stock. Except as disclosed in the SEC Reports or any exhibit thereto, to the extent any such Company Instruments are outstanding as of the date hereof, neither the issuance and sale of the Purchase Shares nor the issuance of the C...
Capitalization; Options. (a) The Company’s authorized capital stock consists solely of 600,000,000 shares of Class A Common Stock, 1,000,000,000 shares of Class B Common Stock, and 100,000,000 shares of preferred stock (the “Preferred Stock”), including 600,000 shares of Series C Junior Participating Preferred Stock and 20,000 shares of Adjustable Rate Callable Nontransferable Series D Preferred Stock. As of the close of business on July 28, 2006 (the “Measurement Date”), 56,753,754 shares of Class A Common Stock were issued and outstanding, 123,229,981 shares of Class B Common Stock were issued and outstanding, and no shares of Preferred Stock were issued or outstanding. As of the Measurement Date, 18,884,252 shares of Class A Common Stock and 32,288,583 shares of Class B Common Stock are held in the treasury of the Company. No Shares are held by any Subsidiary of the Company. Since the Measurement Date until the date of this Agreement, other than in connection with the issuance of Shares pursuant to the exercise of Stock Options or the terms of Company RSUs or Company DSUs outstanding as of the Measurement Date and other than pursuant to Stock Options or Company DSUs issued to directors pursuant to and in accordance with the Company Director Compensation Program, there has been no change in the number of outstanding shares of capital stock of the Company or the number of outstanding Stock Options, Company RSUs, or Company DSUs. As of the Measurement Date, Stock Options to purchase 10,778,709 shares of Class A Common Stock or Class B Common Stock were outstanding, and there were outstanding 6,250.2978 Director DSUs and 2,409,008.576 DSUs under the SURP (based upon a closing price of $32.38 on such date) and 1,360,517.2913 Company RSUs. Section 3.3(a) of the Company Disclosure Letter sets forth a complete and correct list of all Stock Options that are outstanding as of the Measurement Date, the exercise price of each such Stock Option, and with respect to the Persons specified thereon, the number of Stock Options held by each such Person and the exercise prices thereof. As of the date of this Agreement, except as set forth in this Section 3.3 and for the 600,000 shares of Series C Junior Participating Preferred Stock which have been reserved for issuance upon the exercise of rights granted under the Company Rights Agreement, there are no shares of capital stock or securities or other rights convertible or exchangeable into or exercisable for shares of capital stock of the Company ...
Capitalization; Options. (a) The Company’s authorized capital stock consists solely of 100,000,000 Common Shares and 10,000,000 shares of preferred stock, par value $.01 per share (the “Preferred Stock”). As of the close of business on September 12, 2005 (the “Measurement Date”), 46,124,004 Common Shares were issued and outstanding, including 14,000 Company Restricted Shares, and no shares of Preferred Stock were issued or outstanding. As of the Measurement Date, 1,416,386 Common Shares were held in the treasury of the Company or by any Subsidiary. Since the Measurement Date, other than in connection with the issuance of Common Shares pursuant to the exercise of Company Stock Options outstanding as of the Measurement Date, there has been no change in the number of outstanding shares of capital stock of the Company or the number of outstanding Company Stock Options. As of the Measurement Date, 631,581 Company Stock Options to purchase 631,581 Common Shares were outstanding. As of the Measurement Date, 1,766,401 Common Shares are issuable upon the vesting of all outstanding Matching Credits. As of the Measurement Date, there were outstanding 413,617.25 share credits under the Phantom Share Credit Plans. Except as set forth in this Section 3.4, there are no shares of capital stock or securities or other rights convertible or exchangeable into or exercisable for shares of capital stock of the Company or such securities or other rights (which term, for purposes of this Agreement, shall be deemed to include “phantom” stock or other commitments that provide any right to receive value or benefits similar to such capital stock, securities or other rights). Since the Measurement Date, there have been no issuances of any securities of the Company or any of its Subsidiaries that would have been in breach of Section 5.2 if made after the date hereof. No Subsidiary of the Company owns any Common Shares.
(b) All outstanding Common Shares are duly authorized, validly issued, fully paid and non-assessable and are not subject to any pre-emptive rights.
(c) The Company has made available to SibCo 1 correct and complete copies of all plans of the Company providing for the issuance of Common Share awards based upon the value of Common Shares (the “Company Stock Award Plans”), which the Company has set forth on Section 3.4(c) of the Company Disclosure Letter, and all forms of options and other stock-based awards issued under those Company Stock Award Plans.
(d) Except as set forth in this Section 3.4, ...
Capitalization; Options. The authorized capital stock of the Company consists of 60,000,000 Company Shares, and 5,000,000 shares of preferred stock, without par value. As of August 18, 2005, 46,444,693 Company Shares are issued and outstanding and no shares of preferred stock are issued and outstanding. All of such issued and outstanding Company Shares are validly issued, fully paid and nonassessable and were issued free of preemptive rights. Section 5.3 of the Company Disclosure Letter sets forth as of the date of this Agreement all outstanding options, warrants or other rights, whether or not exercisable, to acquire any shares of Company capital stock or any other equitable interest in the Company, the holders thereof, the exercise or conversion prices thereof, the expiration or termination dates, if any, thereof, and, in the case of outstanding options, identifies the Company stock plan or other Company benefit plan under which such options were granted. The Company is not a party to any agreement or understanding, oral or written, which (a) grants a right of first refusal or other such similar right upon the sale of Company Shares or (b) restricts or affects the voting rights of Company Shares. There is no liability for dividends declared or accumulated but unpaid with respect to any Company Shares or Company preferred stock.
Capitalization; Options. (i) As of the date of this Agreement, the authorized Capital Stock of the Company consists of 2,900,000 shares of Common Stock and 2,200,000 shares of Preferred Stock, all shares of which are designated as Series A Preferred Stock. As of the date of this Agreement, (A) 199,858.6 vested shares of Common Stock and 49,434.4 unvested shares of Common Stock are issued and outstanding; (B) except as set forth on Schedule 6.02(g)(i), no shares of Common Stock are held by the Company in treasury; (C) 1,597,000 shares of Series A Preferred Stock are issued and outstanding; and (D) 3,000 shares of Series A Preferred Stock are held by the Company in treasury. 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 Stockholders may vote are issued or outstanding. All outstanding shares of Common Stock and Series A Preferred Stock (x) are duly authorized, validly issued, fully paid and nonassessable and were not issued in violation of any preemptive or other similar rights or any federal or state securities law,
Capitalization; Options. Schedule 4.2 sets forth the capital structure of Seller, including the number of shares authorized and each class of stock that has been issued and is outstanding. Schedule 4.2 contains an accurate and complete list of: (i) the full legal names of the shareholders of Seller; (ii) the addresses of such shareholders; (iii) the federal tax identification or social security number of such shareholders; and (iv) the number of shares, warrants, options or other securities owned of record and beneficially by such shareholders and the certificate numbers of the certificates representing such shares. Except for the shareholders listed in Schedule 4.2, there are no other record or beneficial shareholders of Seller or any other securities of Seller including, but not limited to, any options, warrants, convertible securities, calls, commitments or conversion privileges. Except for the capital stock listed in Schedule 4.2, there were and currently is no other issued or outstanding capital stock. All of the issued and outstanding capital stock of Seller has been duly authorized and validly issued and is fully paid and non-assessable. Except as set forth in Schedule 4.2, there exists no right of first refusal or other preemptive right with respect to Seller or the capital stock, Business or Assets.
Capitalization; Options. (a) As of the date of this Agreement, the Company's authorized capital stock consists solely of 750,000,000 shares of Class A Common Stock, 750,000,000 shares of Class B Common Stock, and 150,000,000 shares of preferred stock, par value $.0l per share (the "PREFERRED STOCK"). As of June 9, 2005 (the "CAPITALIZATION DATE"), 172,791,295 shares of Class A Common Stock were issued and outstanding, an additional 4,931,692 shares of restricted stock issued under the Company Stock Award Plans were subject to vesting restrictions as of such date, no shares of the Company's Class B Common Stock were issued and outstanding and 16,181,124.78 shares of Preferred Stock were issued and outstanding, of which 74,167.71 shares are designated Series A Preferred Stock and 16,106,957.07 shares are designated Series B Preferred Stock. As of the Capitalization Date, (i) options to purchase 8,230,037 shares of Class A Common Stock at a weighted average per share exercise price of $5.07 were outstanding and 16,305,874 shares of Class A Common Stock were available for future issuance in connection with stock options under the Company Stock Award Plans (including 8,230,037 shares reserved pursuant to outstanding options), (ii) there were 320,910 partnership units in Patriot American Hospitality Partnership, L.P. or Wyndham International Operating Partnership, L.P. outstanding (collectively, the "OP UNITS") and 320,910 shares of Class A Common Stock are reserved for issuance upon the redemption of the OP Units and (iii) there were 11,000,000 shares of Class A Common Stock reserved for issuance in connection with the Stipulation of Settlement, dated as of February 28, 2005 relating to In re: Patriot American Hospitality, Inc. Securities Litigation. Under the Company's Rights Plan, the board of directors of the Company created a series of 5,000,000 shares of preferred stock designated as the "SERIES C PARTICIPATING PREFERRED Stock," par value $0.01 per share (the "SERIES C PREFERRED STOCK"), which are issuable in connection with the rights to purchase those shares (the "COMPANY RIGHTS") issued under the Rights Plan. No Company Stock is held in the treasury of the Company or by any Subsidiary. Since the Capitalization Date through the date of this Agreement, other than in connection with the issuance of shares of Class A Common Stock pursuant to the exercise of, or lapse of restrictions under, Company Stock Awards outstanding as of the Capitalization Date, there has been no change in t...
Capitalization; Options. (a) As of the date hereof, the authorized capital stock of the Company consists of (i) 40,000,000 shares of Company Common Stock, of which 7,987,450 shares are issued and outstanding; and (ii) 2,000,000 shares of Preferred Stock, $0.001 par value, of which 10,000 are designated Series A Participating Preferred Stock, and none of which are issued and outstanding. There are, and at the Effective Time there will be, no other shares of capital stock of the Company outstanding, except for shares of Company Common Stock issued (i) on the exercise of currently outstanding Stock Options and (ii) pursuant to Purchase Rights under the ESPP. There is no other class or type of shares, capital stock or equity interests of or in the Company authorized for issuance or outstanding. All of the outstanding shares of capital stock of the Company are duly authorized and validly issued, fully paid, nonassessable and free of preemptive rights. All outstanding shares of Company Common Stock and Stock Options were issued, and all shares of Company Common Stock which may be issued upon the exercise of Stock Options or pursuant to the ESPP will be issued, when issued, in compliance with all applicable state and federal laws concerning the offer, sale and issuance of such securities.
(b) The Company has (i) reserved 2,143,455 shares of Company Common Stock for issuance under Restricted Stock Units or on the exercise of Stock Options, of which options to purchase 787,376 shares and Restricted Stock Units to receive 2,750 shares are outstanding as of the date hereof and (ii) 496,748 shares of Common Stock are available for issuance in the current purchase period under the ESPP. Part 3.4(b) of the Disclosure Schedule sets forth with respect to each outstanding Stock Option and Restricted Stock Unit as of the date hereof (A) the name of the Person that holds such Stock Option or Restricted Stock Unit, (B) the total number of shares of Company Common Stock issuable thereunder (assuming that all conditions to the exercise and issuance thereof, including the passage of time, had been met), (C) the Plan pursuant to which such Stock Option or Restricted Stock Unit was issued, (D) the grant date and expiration date thereof, (E) the per share exercise price thereof, (F) the vesting schedule and any provisions providing for or relating to the acceleration of vesting thereof, and (G) any material term or condition thereof that is inconsistent with, or modifies a material term and condition of, t...
Capitalization; Options. Schedule 4.2 sets forth the capital structure of Seller, including the numbers and types of membership interests authorized and the number of each type of membership interests issued and outstanding. Schedule 4.2 contains an accurate and complete list of: (i) the full legal names of the members of Seller; (ii) the addresses of such members; and (iii) the number of membership interests, shares, warrants, options or other securities owned of record and beneficially by each such member and the certificate numbers of the certificates representing such equity interests, if any. Except for the members listed on Schedule 4.2, there are no other record or beneficial owners of any membership interests of Seller or any other securities of Seller. Except for the membership interests listed on Schedule 4.2, there have been and currently are no other issued or outstanding equity interests. All of the issued and outstanding equity interests of Seller have been duly authorized and validly issued and are fully paid and non-assessable. Except as set forth on Schedule 4.2, there exists no right of first refusal or other preemptive right with respect to Seller or the equity interests, Business or Assets of Seller.
Capitalization; Options. (a) As of the date of this Agreement, the Company’s authorized capital stock consists solely of 100,000,000 shares of common stock, par value $0.0l per share (the “Common Stock”), and 100,000,000 shares of preferred stock, par value $0.01 per share (the “Preferred Stock”). As of February 17, 2006 (the “Capitalization Date”), 87,568,850 shares of Common Stock were issued and outstanding, an additional 246,665 shares of restricted stock issued under the Company Stock Award Plans were subject to vesting restrictions as of such date, no shares of Common stock were held in treasury or by any Subsidiary of the Company and no shares of Preferred Stock were issued and outstanding. As of the Capitalization Date, shares of Common Stock were issuable as set forth on Section 3.10(a)(i) of the Company Disclosure Letter. As of the Capitalization Date, (i) 1,301,397 Company Options to purchase 1,301,397 shares of Common Stock at a weighted average price per share of $14.37 were outstanding and 7,765,899 shares of Common Stock were available for issuance in connection with stock options and (ii) 1,147,647 Company Awards under the Company Stock Award Plans were outstanding. Since the Capitalization Date through the date of this Agreement, other than in connection with the issuance of shares of Common Stock pursuant to the Stock Purchase Plan or the exercise of Company Options and Company Awards, in each case outstanding as of the Capitalization Date, there has been no change in the number of shares of outstanding capital stock of the Company or the number of outstanding Company Options or Company Awards. The authorized equity interests of the Operating Partnership consist solely of the OP Units and units of Class D limited partner interests in the Operating Partnership (the “Class D OP Units”) and units of profits-only limited partner interests in the Operating Partnership (the “Profits-Only OP Units”). As of the date of this Agreement, (i) 88,800,025 Common OP Units are issued and outstanding, (ii) 46,628 Class B OP Units are issued and outstanding, (iii) 910,714 Class C OP Units are issued and outstanding and (iv) no Class D OP Units or Profits-Only OP Units are issued or outstanding. As of the date of this Agreement, 87,568,850 Common OP Units are owned, directly or indirectly, by the Company free and clear of any Liens and the remaining Common OP Units, Class B OP Units and Class C OP Units are owned of record as set forth in Section 3.10(a)(ii) of the Company Disclosu...
