Capitalization; Subsidiaries. (a) As of the close of business on March 10, 2023 (the “Capitalization Date”), the authorized capital stock of the Company consisted of (i) 250,000,000 Common Shares, 187,113,577 of which were issued and outstanding and none of which were held by the Company as treasury shares, and (ii) 5,000,000 shares of preferred stock, par value $0.001 per share, of the Company (the “Company Preferred Shares”), no shares of which were issued and outstanding. There are no other classes of capital stock of the Company and no bonds, debentures, notes or other Indebtedness or securities of the Company having the right to vote (or convertible into or exercisable for securities having the right to vote) on any matters on which holders of capital stock of the Company may vote authorized, issued or outstanding. As of the close of business on the Capitalization Date, there were (A) outstanding Company Options to purchase 5,682,590 Common Shares, (B) 3,025,659 outstanding Company RSUs, (C) 1,019,201 outstanding Company PSUs (assuming maximum performance), (D) rights to purchase a maximum of 543,628 Common Shares pursuant to the Company ESPP (determined based on the fair market value of a Common Share on the first day of the current offering period) and (E) 4,349,617 Common Shares reserved for future issuance under the Company Stock Plans. Since the close of business on the Capitalization Date, there has been no issuance or grant of any Common Shares, Company Preferred Shares or any other securities of the Company, other than any issuances of Common Shares or other securities in accordance with the exercise, vesting or settlement, as applicable, of any Company Stock Plan Awards outstanding as of the close of business on the Capitalization Date in accordance with the terms of the Company Stock Plan Awards.
(b) Section 3.2(b) of the Company Disclosure Letter sets forth, as of the close of business on the Capitalization Date, each outstanding Company Stock Plan Award and, to the extent applicable, (i) the name (or employee identification number) and country of residence (if outside the U.S.) of the holder thereof, (ii) the number of Common Shares issuable thereunder, (iii) the exercise price or strike price (if any) relating thereto, (iv) the grant date, (v) the amount vested (or exercisable) and outstanding and the amount unvested (or not exercisable) and outstanding and (vi) the Company Stock Plan in accordance with which the award was made. Each grant of a Company Option was duly...
Capitalization; Subsidiaries. (a) Schedule 2.7(a) of the Disclosure Letter will set forth a true and complete list that accurately reflects all of the Company’s Interests in the Company Group Entities and the holder thereof. All such Interests in the Company Group Entities have been duly authorized, are validly issued and are fully paid and non-assessable and were not issued in violation of, and are not subject to, any preemptive rights, rights of first refusal, rights of first offer, purchase options, call options or other similar rights of any Person. There are no Interests issued or outstanding in the Company Group Entities other than as set forth on Schedule 2.7(a) of the Disclosure Letter.
(b) Except as set forth in Schedule 2.7(b) of the Disclosure Letter, there are no Contracts (including options, warrants, calls, puts and preemptive rights) obligating the Company Group Entities to: (i) issue, sell, pledge, dispose of or encumber any Interests in any Company Group Entity; (ii) redeem, purchase or acquire in any manner any Interests in any Company Group Entity; or (iii) make any dividend or distribution of any kind with respect to any Interests in any Company Group Entity.
(c) Except as set forth in Schedule 2.7(c) of the Disclosure Letter, there are no outstanding or authorized equity appreciation, phantom equity, profit participation, or similar rights affecting any of the Interests of any Company Group Entity. There are no voting trusts, proxies, or other equity holder or similar agreements or understandings with respect to the voting of any Interests of any Company Group Entity.
(d) Except as set forth in Schedule 2.7(d) of the Disclosure Letter, there are no, and there have not been any, Persons or joint ventures in which any Company Group Entity owns, or has owned, of record or beneficially, any direct or indirect (through a Subsidiary or otherwise) Interest. There are no outstanding obligations of any Company Group Entity to provide funds or make any investment (in either case, in the form of a loan, capital contribution, purchase of an Interest (whether from the issuer or another Person) or otherwise) in, any other Person.
Capitalization; Subsidiaries. The Company has an authorized capitalization as set forth in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. All of the issued and outstanding shares of capital stock of the Company are duly authorized and validly issued, fully paid and nonassessable, and have been issued in compliance with all applicable securities laws, and conform in all material respects to the description thereof in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. Except for the issuances of options or restricted stock in the ordinary course of business, since the respective dates as of which information is provided in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, the Company has not entered into or granted any convertible or exchangeable securities, options, warrants, agreements, contracts or other rights in existence to purchase or acquire from the Company any shares of the capital stock of the Company. The Shares, when issued and paid for as provided herein, will be duly authorized and validly issued, fully paid and nonassessable, will be issued in compliance with all applicable securities laws, and will be free of preemptive, registration or similar rights and will conform to the description of the capital stock of the Company contained in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. The Warrant Shares, when issued, paid for and delivered upon due exercise of the Warrants, will be duly authorized and validly issued, fully paid and nonassessable, will be issued in compliance with all applicable securities laws, and will be free of preemptive, registration or similar rights. The Warrant Shares have been reserved for issuance. The Warrants, when issued, will conform in all material respects to the descriptions thereof set forth in the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus. The Company has no “Subsidiary” as such term is defined in Rule 1-02(x) of Regulation S-X of the Commission.
Capitalization; Subsidiaries. (a) Seller has good, marketable and valid title to the Units, free and clear of any Liens, and is the sole record and beneficial owner thereof. Assuming Purchaser has the requisite power and authority to be the lawful owner of the Units, upon delivery to Purchaser at the Closing of a certificate of transfer with respect to the Units, duly endorsed by Seller, and upon Seller’s receipt of the Closing Date Purchase Price, good, marketable and valid title to the Units will pass to Purchaser, free and clear of any Liens.
(b) Except for the Units, there are no shares of capital stock or other voting securities of, or equity interests in, the Company, issued, reserved for issuance or outstanding. The Units have been duly authorized and validly issued and are fully paid and non-assessable. The Units have not been issued in violation of, and are not subject to, any preemptive, subscription, purchase options, rights of first refusal or similar rights under any provision of applicable Law, the Governing Documents of the Company or any Contract to which the Company is subject, bound or a party or otherwise. There are no outstanding bonds, debentures, notes or other indebtedness of the Company having the right to vote (or that are convertible into, or exercisable or exchangeable for, interests or securities having the right to vote) on any matters on which holders of the Units, respectively, may vote (“Voting Debt”). There are no outstanding warrants, options, rights, “phantom” stock rights, stock appreciation rights, stock-based performance units, convertible or exchangeable securities or other commitments or undertakings (other than this Agreement) (i) pursuant to which Seller or the Company is or may become obligated to issue, deliver or sell (A) any additional shares of capital stock or other voting securities of, or equity interests in, the Company, (B) any security convertible into, or exercisable or exchangeable for, shares of capital stock or other voting securities of, or equity interests in, the Company or (C) any Voting Debt, (ii) pursuant to which Seller or the Company is or may become obligated to issue, grant, extend or enter into any such warrant, option, right, unit, security, commitment or undertaking or (iii) that give any person the right to receive any benefits or rights similar to any rights enjoyed by or accruing to Seller as the sole holder of the Units. There are no Contracts to which the Company is a party that require the Company to register, ...
Capitalization; Subsidiaries. The authorized capital stock of the Company consists of 30,000,000 Common Shares and 5,000,000 shares of preferred stock, par value $.01 per share ("Preferred Stock"). As of the close of business on September 17, 1999, 10,375,693 Common Shares were issued and outstanding, all of which are entitled to vote on this Agreement except for those shares held in treasury. The Company has no shares of Preferred Stock issued and outstanding. As of September 17, 1999, except for 305,000 Common Shares reserved for issuance pursuant to outstanding Options and rights granted under the Stock Plan, there are not now, and at the Effective Time there will not be, any existing options, warrants, calls, subscriptions, or other rights, or other agreements or commitments, obligating the Company to issue, transfer or sell any shares of capital stock of the Company or any of its Subsidiaries. Section 3.2 of the Disclosure Schedule sets forth the name of each holder of an outstanding Option under the Stock Plan, and with respect to each Option held by any such holder, the grant date, vesting schedule, exercise price and number of Common Shares for which such Option is exercisable. All issued and outstanding Common Shares are, and all Common shares which may be issued pursuant to the exercise of outstanding Options will be, when issued in accordance with the respective terms thereof, validly issued, fully paid, nonassessable and free of preemptive rights. All of the outstanding shares of capital stock of each of the Company's Subsidiaries have been validly issued and are fully paid and non-assessable and, except as set forth on Section 3.2 of the Disclosure Schedule, are owned by either the Company or another of its Subsidiaries free and clear of all liens, charges, claims or encumbrances. There are no outstanding options, warrants, calls, subscriptions, or other rights, or other agreements or commitments, obligating any Subsidiary of the Company to issue, transfer or sell any shares of its capital stock.
Capitalization; Subsidiaries. (a) ZBB has duly and validly authorized capital stock as set forth in the SEC Filings and in the Articles of Incorporation of ZBB, as amended and as in effect as of the Closing Date (the “Articles of Incorporation”). All of the issued and outstanding shares of ZBB’s capital stock have been duly authorized and validly issued and are fully paid, nonassessable and free of pre-emptive rights and were issued in full compliance with applicable state and federal securities law and any rights of third parties. Except as described in the SEC Filings, all of the issued and outstanding shares of capital stock of each Subsidiary have been duly authorized and validly issued and are fully paid, nonassessable and free of pre-emptive rights, were issued in full compliance with applicable state and federal securities law and any rights of third parties and are owned by ZBB, beneficially and of record, subject to no lien, encumbrance or other adverse claim. Except as described in the SEC Filings, no Person is entitled to pre-emptive or similar statutory or contractual rights with respect to any securities of ZBB. Except as described in the SEC Filings, there are no outstanding warrants, options, convertible securities or other rights, agreements or arrangements of any character under which ZBB or any of its Subsidiaries is or may be obligated to issue any equity securities of any kind. Except as described in the SEC Filings, there are no voting agreements, buy-sell agreements, option or right of first purchase agreements or other agreements of any kind among ZBB and any of the securityholders of ZBB relating to the securities of ZBB held by them. Except as described in the SEC Filings, the issuance and sale of the Shares pursuant to the Purchase Agreements will not obligate ZBB to issue shares of Common Stock or other securities to any other Person (other than the Purchasers) and will not result in the adjustment of the exercise, conversion, exchange or reset price of any outstanding security. Except as described in the SEC Filings, ZBB does not have outstanding any shareholder purchase rights or “poison pill” or any similar arrangement in effect giving any Person the right to purchase any equity interest in ZBB upon the occurrence of certain events.
(b) ZBB has no significant subsidiary (as such term is defined in Rule 1-02(w) of Regulation S-X promulgated by the Securities and Exchange Commission (the “SEC”)) other than the Subsidiaries disclosed in the SEC Filings. All o...
Capitalization; Subsidiaries. (a) As of the close of business on May 16, 2024 (the “Parent Capitalization Date”), the authorized capital stock of the Parent consisted of 100,000,000 shares of Parent Common Stock, and 26,456,751 of which were issued and outstanding. There are no other classes of capital stock of Parent and no bonds, debentures, notes, or other Indebtedness or securities of the Parent having the right to vote (or convertible into or exercisable for securities having the right to vote) on any matters on which holders of capital stock of the Parent may vote authorized, issued, or outstanding. As of the close of business on the Parent Capitalization Date, there were outstanding options and warrants relating to 3,450,000 shares of Parent Common Stock.
(b) All of the issued and outstanding shares of Parent Common Stock have been, and all of the shares of Parent Common Stock that are required to be issued pursuant to this Agreement or any related agreements may be issued pursuant to the Parent Equity Awards or other compensation plans of the Parent will be, when issued in accordance with the respective terms thereof, duly authorized and validly issued and are, or will be when issued, fully paid, nonassessable, and free of preemptive rights.
(c) As of the date of this Agreement, other than (i) issuances of shares of Parent Common Stock pursuant to the exercise or settlement, as applicable, of the Parent equity awards outstanding as of the close of business on the Parent Capitalization Date or under other compensation plans of the Parent in accordance with their terms, (ii) the grant or issuance of equity awards of the Parent since the Parent Capitalization Date in the ordinary course of business, or (iii) as set forth in Section 5.2(a), there are no (A) existing options, warrants, calls, preemptive rights, subscriptions, or other securities or rights, restricted stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, or commitments of any kind obligating the Parent to issue, transfer, register, or sell, or cause to be issued, transferred, registered, or sold, any shares of capital stock or other equity or voting securities or other equity interests of the Parent or securities convertible into or exchangeable for such shares or other equity or voting securities or other equity interests, or obligating the Parent to grant, extend, or enter into such options, warrants, calls, preemptive, subscriptions, or other securities or rights, restricted...
Capitalization; Subsidiaries. (i) On the Effective Date, after giving effect to the transactions contemplated hereby to occur on the Effective Date, the authorized Equity Interests of the Parent and the issued and outstanding Equity Interests of the Parent are as set forth on Schedule 6.01(e). All of the issued and outstanding shares of Equity Interests of the Parent have been validly issued. Except as described on Schedule 6.01(e), as of the Effective Date, there are no outstanding debt or equity securities of the Parent and no outstanding obligations of the Parent convertible into or exchangeable for, or warrants, options or other rights for the purchase or acquisition from the Parent, or other obligations of the Parent to issue, directly or indirectly, any shares of Equity Interests of the Parent.
(ii) Schedule 6.01(e) is a complete and correct description of the name, jurisdiction of incorporation and ownership of the outstanding Equity Interests of such Subsidiaries of the Ultimate Parent in existence as of the Effective Date. All of the issued and outstanding shares of Equity Interests of such Subsidiaries have been validly issued and, in the case of any Subsidiary organized as a corporation under the laws of any jurisdiction of the United States, are fully paid and nonassessable, and the holders thereof are not entitled to any preemptive, first refusal or other similar rights. Except as indicated on such Schedule, as of the Effective Date, all such Equity Interests is owned by the Ultimate Parent or one or more of its wholly-owned Subsidiaries, free and clear of all Liens other than Permitted Liens (but excluding any Permitted Liens that are consensual or contractual Liens). As of the Effective Date, there are no outstanding debt or equity securities of the Ultimate Parent or any of its Subsidiaries and no outstanding obligations of the Ultimate Parent or any of its Subsidiaries convertible into or exchangeable for, or warrants, options or other rights for the purchase or acquisition from the Ultimate Parent or any of its Subsidiaries, or other obligations of any Subsidiary to issue, directly or indirectly, any shares of Equity Interests of any Subsidiary of the Ultimate Parent.
Capitalization; Subsidiaries. (a) The authorized capital stock of the Company consists of 37,000,000 shares, 36,000,000 shares of which are designated as Common Stock, 1,000,000 shares of which are designated as Series A Preferred Stock, par value $0.01 per share (the “Preferred Stock”, together with the Common Stock are collectively referred to herein as the “Capital Stock”). As of the date of this Agreement, 9,630,077 shares of Common Stock were issued and outstanding, and no shares of Preferred Stock were issued and outstanding, and as of the Closing Date, no more than 11,237,028 shares of Common Stock plus any shares of Common Stock issuable pursuant to the Merit Options and no shares of Preferred Stock shall be issued and outstanding. Other than the foregoing, there are no other shares of a class or series of Capital Stock of the Company or any Subsidiary thereof authorized or outstanding. All of the issued and outstanding shares of Capital Stock have been duly authorized and validly issued and are fully paid and nonassessable, and are free of preemptive rights. All of the issued and outstanding shares of Capital Stock were issued in compliance with any preemptive rights and any other statutory or contractual rights of any shareholders of the Company and in compliance with all applicable securities Laws. As of the date hereof, 1,606,951 shares of Common Stock are reserved for issuance upon the exercise of outstanding Options granted pursuant to the Option Plans, and no shares of Common Stock are reserved for issuance upon the exercise of outstanding Options granted outside of the Option Plans and no shares of Common Stock are reserved for issuance upon the exercise of any warrants or similar rights. Section 2.2 of the Company Disclosure Schedule sets forth a correct, true and complete list of each Person who, as of the close of business on the date of this Agreement, held an Option under any of the Option Plans or otherwise, indicating with respect to each Option then outstanding, the number of Shares subject to such Option, the grant date and exercise price of such Option, and the vesting schedule and expiration of such Option. The only security issuable upon exercise of outstanding Options is Common Stock. There are not as of the date hereof, and at the Effective Time there will not be, any subscriptions, outstanding or authorized options, warrants, convertible securities, calls, rights (including preemptive rights), commitments or any other agreements of any character to which ...
Capitalization; Subsidiaries. (i) As of immediately prior to the execution and delivery of this Agreement, there are no securities of the Company issued and outstanding, except for the Shares previously issued pursuant to Section 1.1. Except as provided and contemplated by this Agreement, as of the date of this Agreement, the Company has no commitment or arrangement to issue securities of the Company to any person or entity.
(ii) As of the date of this Agreement, the Company has no subsidiaries.
