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 stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, or commitments, (B) outstanding obligations of the Parent to repurchase, redeem, or otherwise acquire any capital stock or other equity or voting securities or other equity interests of the Parent or any securities representing the right to purchase or otherwise receive any capital stock or other equity or voting securities or other equity interests of the Parent, (C) shareholder agreements, voting trusts, or similar agreements with any Person to which the Parent is a party either (1) restricting the transfer of the capital stock or other equity or voting interests of the Parent or (2) affecting the voting rights of capital stock or other equity or voting securities or other equity interests of the Parent, or (D) outstanding or authorized equity or equity-based compensation awards, including any equity appreciation rights, security-based performance units, “phantom” stock, profit-participation, or other security rights issued by the Parent, or other agreements, arrangements, or commitments of any character (contingent or otherwise) to which the Parent is party, in each case pursuant to which any Person is entitled to receive any payment from the Parent based, in whole or in part, on the value of any capital stock or other equity or voting securities or other equity interests of the Parent. (d) All of the issued and outstanding capital stock of the Merger Sub is, and at Merger Effective Time will be, owned, directly or indirectly, by the Parent. The Merger Sub has no outstanding options, warrants, rights, or any other agreements pursuant to which any Person other than the Parent may acquire any equity security of the Merger Sub. Except as would not be material to the Parent and its Subsidiaries, taken as a whole, none of the Parent or any of its Subsidiaries has any obligation or has made any commitment to acquire any shares of capital stock or other equity or voting securities or other equity interests in any Person or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Person. (e) The number of shares of authorized Parent Common Stock that have not been issued, subscribed for, or otherwise committed to be issued is at least equal to the number of shares of Parent Common Stock to be issued pursuant to the transactions contemplated by this Agreement. (f) Schedule 5.2(f) accurately sets forth the name, type of entity, and jurisdiction of organization of each Subsidiary of the Parent. Except as set forth on Schedule 5.2(f), all shares of Capital Stock of each Subsidiary (i) are owned, directly or indirectly, by the Parent, free and clear of all Security Interests (other than Permitted Exceptions); (ii) are duly authorized and validly issued; and (iii) were issued in compliance with Applicable Law and any preemptive or similar rights. There are no options, warrants, puts, calls, rights, convertible, or exchangeable securities, “phantom” unit rights, unit appreciation rights, unit-based performance units, commitments, contracts, arrangements, or undertakings of any kind to which any Subsidiary is a party or by which it is bound (i) obligating such Subsidiary to issue, deliver, transfer, or sell, or cause to be issued, delivered, transferred, or sold, additional shares of capital stock of such Subsidiary, or (ii) entitling any Person to any economic benefit based, directly or indirectly, on the value or price of any of the foregoing. No Subsidiary is or at any time has been insolvent within the meaning of Applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (Agrify Corp), Merger Agreement (Nature's Miracle Holding Inc.)
Capitalization; Subsidiaries. (a) As of the close of business on May 16the August 30, 2024 2017 (the “Parent Capitalization Date”), the authorized capital stock of the Parent consisted of 100,000,000 (i) 4,000,000,000 shares of Parent Common Stock, and 26,456,751 1,452,811,555 of which were issued and outstanding (including 0 shares of Parent Common Stock subject to Parent Equity Awards in the form of compensatory restricted stock awards) and 654,259,004 of which were held by Parent as treasury stock, and (ii) 250,000,000 shares of preferred stock, par value $1.00 per share, of Parent, no shares of which were outstanding. There are no other classes of capital stock of Parent and no bonds, debentures, notes, 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, issued or outstanding. As of the close of business on the Parent Capitalization Date, there were (A) outstanding options and warrants stock appreciation rights relating to 3,450,000 35,734,448 shares of Parent Common Stock and (B) outstanding Parent Equity Awards (other than options, stock appreciation rights and compensatory restricted stock awards relating to Parent Common Stock) representing 4,613,424 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 the Parent’s Long-Term Incentive Plan, as amended from time to time, or other compensation plans of the Parent will be, when issued in accordance with the respective terms thereof, duly authorized and validly issued and issued, and, along with the shares of Parent Common Stock issuable pursuant to this Agreement, are, or will be when issued, fully paid, nonassessable, nonassessable and free of preemptive rights. All of the outstanding Parent Common Stock has been sold pursuant to an effective registration statement filed under the federal securities Laws or an appropriate exemption therefrom.
(c) As of the date of this Agreement, other Other than (i1) issuances of shares of Parent Common Stock pursuant to the exercise or settlement, as applicable, of the Parent equity awards 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, terms or (ii2) the grant or issuance of equity awards of the Parent Equity Awards since the Parent Capitalization Date in the ordinary course of businessbusiness consistent with past practice, or (iii) as of the date of this Agreement, other than as set forth in Section 5.2(a4.2(a), there are no (Ai) existing options, warrants, calls, preemptive rights, subscriptions, subscriptions or other securities or rights, restricted stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, arrangements or commitments of any kind obligating the Parent to issue, transfer, register, register or sell, or cause to be issued, transferred, registered, 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 interestsshares, or obligating the Parent to grant, extend, extend or enter into such options, warrants, calls, preemptive, subscriptions, subscriptions or other securities or rights, restricted stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, arrangements or commitments, (Bii) outstanding obligations of the Parent to repurchase, redeem, redeem or otherwise acquire any capital stock or other equity or voting securities or other equity interests of the Parent or any securities representing the right to purchase or otherwise receive any capital stock of Parent, (iii) stockholder agreements, voting trusts or similar agreements with any Person to which Parent is a party (A) restricting the transfer of the capital stock of Parent or (B) affecting the voting rights of capital stock of Parent or other equity or voting securities or other equity interests of the Parent, (C) shareholder agreements, voting trusts, or similar agreements with any Person to which the Parent is a party either (1) restricting the transfer of the capital stock or other equity or voting interests of the Parent or (2) affecting the voting rights of capital stock or other equity or voting securities or other equity interests of the Parent, or (Div) outstanding or authorized equity or equity-based compensation awards, including any equity appreciation rights, security-based performance units, “phantom” stock, profit-participation, participation or other security rights issued by the Parent, or other agreements, arrangements, arrangements or commitments of any character (contingent or otherwise) to which the Parent is party, in each case pursuant to which any Person is entitled to receive any payment from the Parent based, based in whole or in part, part on the value of any capital stock or other equity or voting securities or other equity interests of the Parent.
(d) All of the issued and outstanding capital stock of the Merger Sub is, and at Merger the Effective Time will be, owned, directly owned by Parent or indirectly, by the a direct or indirect wholly owned Subsidiary of Parent. The Merger Sub has no outstanding options, warrants, rights, rights or any other agreements pursuant to which any Person other than the Parent may acquire any equity security of the Merger Sub. Except as would not be material to the Parent and its Subsidiaries, taken as a whole, none of the Parent or any of its Subsidiaries has any obligation or has made any commitment to acquire any shares of capital stock or other equity or voting securities or other equity interests in any Person or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Person.
(e) The number of shares of authorized Parent Common Stock that have not been issued, subscribed for, for or otherwise committed to be issued is at least equal to the number of shares of Parent Common Stock to be issued pursuant to the transactions contemplated by this Agreement.
(f) Schedule 5.2(f) accurately sets forth the name, type of entity, and jurisdiction of organization of each Subsidiary of the Parent. Except as set forth on Schedule 5.2(f), all shares of Capital Stock of each Subsidiary (i) are owned, directly or indirectly, by the Parent, free and clear of all Security Interests (other than Permitted Exceptions); (ii) are duly authorized and validly issued; and (iii) were issued in compliance with Applicable Law and any preemptive or similar rights. There are no options, warrants, puts, calls, rights, convertible, or exchangeable securities, “phantom” unit rights, unit appreciation rights, unit-based performance units, commitments, contracts, arrangements, or undertakings of any kind to which any Subsidiary is a party or by which it is bound (i) obligating such Subsidiary to issue, deliver, transfer, or sell, or cause to be issued, delivered, transferred, or sold, additional shares of capital stock of such Subsidiary, or (ii) entitling any Person to any economic benefit based, directly or indirectly, on the value or price of any of the foregoing. No Subsidiary is or at any time has been insolvent within the meaning of Applicable Law.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (United Technologies Corp /De/)
Capitalization; Subsidiaries. (a) As of the close of business on May 1620, 2024 (the “Parent Capitalization Date”)2016, the authorized capital stock of the Parent consisted of 100,000,000 (i) 500,000,000 shares of Parent Common Stock, and 26,456,751 313,954,008 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 (i) options 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 purchase shares of Parent Common StockStock or (ii) shares of preferred stock of Parent authorized and outstanding.
(b) All of the issued and outstanding shares of Parent Common Stock have beenbeen duly authorized and validly issued, and all of the shares of Parent Common Stock that are required to be issued issuable pursuant to this Agreement or any related agreements may be issued pursuant will (subject to obtaining 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 Stockholder Approval) be when issued, fully paid, nonassessable, nonassessable and free of preemptive rights. All of Parent Common Stock has been sold pursuant to an effective registration statement filed under the federal securities Laws or an appropriate exemption therefrom and in accordance with the Investment Company Act.
(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 May 20, 2016, 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) than as set forth in Section 5.2(a4.2(a), there are no existing (Ai) existing options, warrants, calls, preemptive rights, subscriptions, subscriptions or other securities or rights, restricted stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, agreements or commitments of any kind character to which Parent, any of its Subsidiaries or IHAM is a party obligating the Parent Parent, any of its Subsidiaries or IHAM to issue, transfer, register, transfer or sell, or cause to be issued, transferred, registered, or sold, sell any shares of capital stock or other equity interest in Parent, any of its Subsidiaries or voting securities or other equity interests of the Parent IHAM or securities convertible into or exchangeable for such shares or other equity or voting securities or other equity interests, (ii) contractual obligations of Parent, any of its Subsidiaries or obligating the Parent IHAM to grantrepurchase, extendredeem or otherwise acquire any capital stock of Parent, any of its Subsidiaries or IHAM, or enter into such any securities representing the right to purchase or otherwise receive any capital stock of Parent, any of its Subsidiaries or IHAM, (iii) voting trusts or similar agreements to which Parent is a party with respect to the voting of the capital stock of Parent or (iv) other equity-based awards, including any equity appreciation rights, issued by Parent, any of its Subsidiaries or IHAM.
(d) As of the close of business on May 20, 2016, the authorized capital stock of Acquisition Sub consisted of (i) 100 shares of common stock, $0.01 par value per share, 100 of which were issued and outstanding. As of the date hereof there are no existing (i) options, warrants, calls, preemptive, subscriptions, subscriptions or other securities or rights, restricted stock awards, restricted stock unit awards, convertible securities, agreementsagreements or commitments of any character to which Acquisition Sub or IHAM is a party obligating Acquisition Sub or IHAM to issue, arrangements, transfer or commitmentssell any shares of capital stock or other equity interest in Acquisition Sub or IHAM or securities convertible into or exchangeable for such shares or equity interests, (Bii) outstanding contractual obligations of the Parent Acquisition Sub or IHAM to repurchase, redeem, redeem or otherwise acquire any capital stock or other equity or voting securities or other equity interests of the Parent Acquisition Sub or IHAM, or any securities representing the right to purchase or otherwise receive any capital stock or other equity or voting securities or other equity interests of the ParentAcquisition Sub or IHAM, (Ciii) shareholder agreements, voting trusts, trusts or similar agreements with any Person to which the Parent Acquisition Sub or IHAM is a party either (1) restricting with respect to the transfer voting of the capital stock or other equity or voting interests of the Parent Acquisition Sub or IHAM or (2iv) affecting the voting rights of capital stock or other equity or voting securities or other equity interests of the Parent, or (D) outstanding or authorized equity or equity-based compensation awards, including any equity appreciation rights, security-based performance units, “phantom” stock, profit-participation, or other security rights issued by the Parent, or other agreements, arrangements, or commitments of any character (contingent or otherwise) to which the Parent is party, in each case pursuant to which any Person is entitled to receive any payment from the Parent based, in whole or in part, on the value of any capital stock or other equity or voting securities or other equity interests of the Parent.
(d) All of the issued and outstanding capital stock of the Merger Sub is, and at Merger Effective Time will be, owned, directly or indirectly, by the Parent. The Merger Sub has no outstanding options, warrants, rights, or any other agreements pursuant to which any Person other than the Parent may acquire any equity security of the Merger Sub. Except as would not be material to the Parent and its Subsidiaries, taken as a whole, none of the Parent IHAM or any of its Subsidiaries has any obligation or has made any commitment to acquire any shares of capital stock or other equity or voting securities or other equity interests in any Person or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Persontheir respective Subsidiaries.
(e) The number of shares of authorized Parent Common Stock that have not been issued, subscribed for, or otherwise committed to be issued is at least equal to the number of shares of Parent Common Stock to be issued pursuant to the transactions contemplated by this Agreement.
(f) Schedule 5.2(f) accurately sets forth the name, type of entity, and jurisdiction of organization of each Subsidiary of the Parent. Except as set forth on Schedule 5.2(f), all shares of Capital Stock of each Subsidiary (i) are owned, directly or indirectly, by the Parent, free and clear of all Security Interests (other than Permitted Exceptions); (ii) are duly authorized and validly issued; and (iii) were issued in compliance with Applicable Law and any preemptive or similar rights. There are no options, warrants, puts, calls, rights, convertible, or exchangeable securities, “phantom” unit rights, unit appreciation rights, unit-based performance units, commitments, contracts, arrangements, or undertakings of any kind to which any Subsidiary is a party or by which it is bound (i) obligating such Subsidiary to issue, deliver, transfer, or sell, or cause to be issued, delivered, transferred, or sold, additional shares of capital stock of such Subsidiary, or (ii) entitling any Person to any economic benefit based, directly or indirectly, on the value or price of any of the foregoing. No Subsidiary is or at any time has been insolvent within the meaning of Applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (Ares Capital Corp), Merger Agreement (American Capital, LTD)
Capitalization; Subsidiaries. (a) As of the close of business on May 16September 20, 2024 (the “Parent Capitalization Date”)2021, the authorized capital stock of the Parent consisted of 100,000,000 150,000,000 shares of Parent Common Stock, and 26,456,751 65,316,085 of which were issued and outstandingoutstanding and none of which were held by Parent as treasury stock. There are no other classes Parent does not have any shares of capital preferred 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, issued or outstanding. As of the close of business on September 20, 2021, the Parent Capitalization Date, there were outstanding options and warrants relating to 3,450,000 authorized capital stock of Acquisition Sub consisted of 100 shares of Parent Common Stockcommon stock, $0.01 par value per share, 100 of which were issued and outstanding. Acquisition Sub does not have any Subsidiaries and has no shares of preferred stock authorized, issued or outstanding.
(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, been duly authorized and validly issued and are, or will be when issued, are fully paid, nonassessable, nonassessable and free of preemptive rights. All of the Parent Common Stock has been sold pursuant to an effective registration statement filed under the federal securities Laws or an appropriate exemption therefrom and in accordance with the Investment Company Act.
(c) As of the date of this Agreement, other than there are no existing (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, subscriptions or other securities or rights, restricted stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, agreements or commitments of any kind character to which Parent or any of its Subsidiaries (including Acquisition Sub) is a party obligating the Parent or any of its Subsidiaries (including Acquisition Sub) to issue, transfer, register, transfer or sell, or cause to be issued, transferred, registered, or sold, sell any shares of capital stock or other equity interest in Parent or voting securities or other equity interests any of the Parent its Subsidiaries (including Acquisition Sub) 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 stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, or commitments, (Bii) outstanding contractual obligations of the Parent or any of its Subsidiaries (including Acquisition Sub) to repurchase, redeem, redeem or otherwise acquire any capital stock of Parent or other equity or voting securities or other equity interests any of the Parent its Subsidiaries or any securities representing the right to purchase or otherwise receive any capital stock of Parent or other any of its Subsidiaries, (iii) appreciation rights, phantom equity or similar rights with respect to, or valued in whole or in part in reference to, Parent or any of its Subsidiaries (including Acquisition Sub) or (iv) voting securities or other equity interests of the Parent, (C) shareholder agreements, voting trusts, trusts or similar agreements with any Person to which the Parent is a party either (1) restricting with respect to the transfer voting of the capital stock or other equity or voting interests of the Parent or (2) affecting the voting rights of capital stock or other equity or voting securities or other equity interests of the Parent, or (D) outstanding or authorized equity or equity-based compensation awards, including any equity appreciation rights, security-based performance units, “phantom” stock, profit-participation, or other security rights issued by the Parent, or other agreements, arrangements, or commitments of any character (contingent or otherwise) to which the Parent is party, in each case pursuant to which any Person is entitled to receive any payment from the Parent based, in whole or in part, on the value of any capital stock or other equity or voting securities or other equity interests of the Parent.
(d) All Each Subsidiary of Parent (including Acquisition Sub) on the issued and outstanding capital stock of the Merger Sub is, and at Merger Effective Time will be, owned, directly or indirectly, by the Parent. The Merger Sub has no outstanding options, warrants, rights, or any other agreements pursuant to which any Person other than the Parent may acquire any equity security of the Merger Sub. Except as would not be material to the Parent and its Subsidiaries, taken as a whole, none date hereof is listed on Section 4.2(d) of the Parent or any of its Subsidiaries has any obligation or has made any commitment to acquire any shares of capital stock or other equity or voting securities or other equity interests in any Person or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Person.
(e) The number of shares of authorized Parent Common Stock that have not been issued, subscribed for, or otherwise committed to be issued is at least equal to the number of shares of Parent Common Stock to be issued pursuant to the transactions contemplated by this Agreement.
(f) Schedule 5.2(f) accurately sets forth the name, type of entity, and jurisdiction of organization of each Subsidiary of the ParentDisclosure Letter. Except as set forth on Schedule 5.2(f)Section 4.2(d) of the Parent Disclosure Letter, all shares of Capital Stock of each Subsidiary (i) are ownedParent owns, directly or indirectly, by all of the Parentissued and outstanding company, partnership or corporate (as applicable) ownership interests in each such Subsidiary (including Acquisition Sub), free and clear of all Security Interests Liens except for Permitted Liens, and all of such company, partnership or corporate (other than Permitted Exceptions); (iias applicable) ownership interests are duly authorized and validly issued; issued and (iii) were issued in compliance with Applicable Law are fully paid, nonassessable and any free of preemptive or similar rights. There are no options, warrants, puts, calls, rights, convertible, or exchangeable securities, “phantom” unit rights, unit appreciation rights, unit-based performance units, commitments, contracts, arrangements, or undertakings of any kind to which any Subsidiary is a party or by which it is bound (i) obligating such Subsidiary to issue, deliver, transfer, or sell, or cause to be issued, delivered, transferred, or sold, additional shares of capital stock of such Subsidiary, or (ii) entitling any Person to any economic benefit based, directly or indirectly, on the value or price of any of the foregoing. No Subsidiary is or at any time has been insolvent within the meaning of Applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (Sierra Income Corp), Merger Agreement (Barings BDC, Inc.)
Capitalization; Subsidiaries. (a) As of the close of business on May 16July 25, 2024 2019 (the “Parent Capitalization Date”), the authorized capital stock of the Parent consisted of 100,000,000 (i) 200,000,000 shares of Parent Common Stock, and 26,456,751 129,513,246 of which were issued and outstanding (including 94,726 shares of Parent Common Stock in the form of compensatory restricted stock awards granted pursuant to a Parent Equity Plan) and none of which were held by Parent as treasury stock, (ii) 5,000,000 shares of preferred stock, par value $0.01 per share, of Parent, no shares of which were outstanding. There are no other classes of capital stock of Parent and and, except for the Convertible Notes, no bonds, debentures, notes, 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, issued or outstanding. As of the close of business on the Parent Capitalization Date, there were (A) outstanding options and warrants granted pursuant to a Parent Equity Plan relating to 3,450,000 2,386,978 shares of Parent Common Stock, (B) outstanding restricted stock units granted pursuant to a Parent Equity Plan relating to 3,997,723 shares of Parent Common Stock and (C) 12,197,000 shares of Parent Common Stock reserved for issuance upon conversion of the Convertible Notes due 2025 and the Convertible Notes due 2027 (together, the “Convertible Notes”).
(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 Convertible Notes, any Parent Equity Awards Plan or other compensation plans of the Parent will be, when issued in accordance with the respective terms thereof, duly authorized and validly issued and issued, and, along with the shares of Parent Common Stock issuable pursuant to this Agreement, are, or will be when issued, fully paid, nonassessable, nonassessable and free of preemptive rights. All of the outstanding Parent Common Stock has been sold pursuant to an effective registration statement filed under the federal securities Laws or an appropriate exemption therefrom.
(c) As of the date of this Agreement, other Other than (i1) issuances of shares of Parent Common Stock pursuant to the exercise or settlement, as applicable, of the Parent equity awards outstanding under any Parent Equity Plan as of the close of business on the Parent Capitalization Date or under other compensation plans of the Parent in accordance with their terms, (ii2) the grant or issuance of equity awards under any Parent Equity Plan or other compensation plan of the Parent since the Parent Capitalization Date in the ordinary course of business, or as of the date of this Agreement and (iii3) the Convertible Notes, other than as set forth in Section 5.2(a4.2(a), there are no (Ai) existing options, warrants, calls, preemptive rights, subscriptions, subscriptions or other securities or rights, restricted stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, arrangements or commitments of any kind obligating the Parent or any of its Subsidiaries to issue, transfer, register, register or sell, or cause to be issued, transferred, registered, 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 interestsinterests of Parent, or obligating the Parent to grant, extend, extend or enter into such options, warrants, calls, preemptive, subscriptions, subscriptions or other securities or rights, restricted stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, arrangements or commitments, (Bii) outstanding obligations of the Parent or any of its Subsidiaries to repurchase, redeem, redeem or otherwise acquire any capital stock or other equity or voting securities or other equity interests of the Parent or any securities representing the right to purchase or otherwise receive any capital stock of or other equity or voting securities or other equity interests of the Parent, (Ciii) shareholder stockholder agreements, voting trusts, trusts or similar agreements with any Person to which the Parent or any of its Subsidiaries is a party either party, including any such agreements or trusts (1A) restricting the transfer of the capital stock or other equity or voting interests of the Parent or (2B) affecting the voting rights of capital stock of Parent or other equity or voting securities or other equity interests of the Parent, or (Div) outstanding or authorized equity or equity-based compensation awards, including any equity appreciation rights, security-based performance units, “phantom” stock, profit-participation, participation or other security rights issued by the Parent, or other agreements, arrangements, arrangements or commitments of any character (contingent or otherwise) to which the Parent or any of its Subsidiaries is party, in each case pursuant to which any Person is entitled to receive any payment from the Parent based, based in whole or in part, part on the value of any capital stock or other equity or voting securities or other equity interests of the Parent.
(d) All of the issued and outstanding capital stock of the Merger Sub is, and at Merger the Effective Time will be, owned, directly owned by Parent or indirectly, by the a direct or indirect wholly owned Subsidiary of Parent. The Merger Sub has no outstanding options, warrants, rights, rights or any other agreements pursuant to which any Person other than the Parent may acquire any equity security of the Merger Sub. Except as would not be material to the Parent and its Subsidiaries, taken as a whole, none of the Parent or any of its Subsidiaries has any obligation or has made any commitment to acquire any shares of capital stock or other equity or voting securities or other equity interests in any Person or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Person.
(e) The number of shares of authorized Parent Common Stock that have not been issued, subscribed for, or otherwise committed to be issued is at least equal to the number of shares of Parent Common Stock to be issued pursuant to the transactions contemplated by this Agreement.
(f) Schedule 5.2(f) accurately sets forth the name, type of entity, and jurisdiction of organization of each Subsidiary of the Parent. Except as set forth on Schedule 5.2(f), all shares of Capital Stock of each Subsidiary (i) are owned, directly or indirectly, by the Parent, free and clear of all Security Interests (other than Permitted Exceptions); (ii) are duly authorized and validly issued; and (iii) were issued in compliance with Applicable Law and any preemptive or similar rights. There are no options, warrants, puts, calls, rights, convertible, or exchangeable securities, “phantom” unit rights, unit appreciation rights, unit-based performance units, commitments, contracts, arrangements, or undertakings of any kind to which any Subsidiary is a party or by which it is bound (i) obligating such Subsidiary to issue, deliver, transfer, or sell, or cause to be issued, delivered, transferred, or sold, additional shares of capital stock of such Subsidiary, or (ii) entitling any Person to any economic benefit based, directly or indirectly, on the value or price of any of the foregoing. No Subsidiary is or at any time has been insolvent within the meaning of Applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (Exact Sciences Corp), Merger Agreement (Genomic Health Inc)
Capitalization; Subsidiaries. (a) As of the close of business on May 16December 18, 2024 (the “Parent Capitalization Date”)2020, the authorized capital stock of the Parent consisted consists of (i) 100,000,000 shares of Parent Common Stock, and 26,456,751 75,164,230 of which were issued and outstanding and 5,000,000 of which were held by Parent as treasury stock, and (ii) 5,000,000 shares of preferred stock of Parent, par value $0.01 per share, zero shares of which were outstanding. There are Acquisition Sub does not have any Subsidiaries and has no other classes shares of capital preferred 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, 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, been duly authorized and validly issued and are, or will be when issued, are fully paid, nonassessable, nonassessable and free of preemptive rights. All of the Parent Common Stock has been sold pursuant to an effective registration statement filed under the federal securities Laws or an appropriate exemption therefrom and in accordance with the Investment Company Act.
(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)hereof, there are no existing (Ai) existing options, warrants, calls, preemptive rights, subscriptions, subscriptions or other securities or rights, restricted stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, agreements or commitments of any kind character to which Parent or any of its Subsidiaries (including Acquisition Sub) is a party obligating the Parent or any of its Subsidiaries (including Acquisition Sub) to issue, transfer, register, transfer or sell, or cause to be issued, transferred, registered, or sold, sell any shares of capital stock or other equity interest in Parent or voting securities or other equity interests any of the Parent its Subsidiaries (including Acquisition Sub) 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 stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, or commitments, (Bii) outstanding contractual obligations of the Parent or any of its Subsidiaries (including Acquisition Sub) to repurchase, redeem, redeem or otherwise acquire any capital stock of Parent or other equity or voting securities or other equity interests any of the Parent its Subsidiaries or any securities representing the right to purchase or otherwise receive any capital stock of Parent or other any of its Subsidiaries, (iii) appreciation rights, phantom equity or similar rights with respect to, or valued in whole or in part in reference to, Parent or any of its Subsidiaries (including Acquisition Sub) or (iv) voting securities or other equity interests of the Parent, (C) shareholder agreements, voting trusts, trusts or similar agreements with any Person to which the Parent is a party either (1) restricting with respect to the transfer voting of the capital stock or other equity or voting interests of the Parent or (2) affecting the voting rights of capital stock or other equity or voting securities or other equity interests of the Parent, or (D) outstanding or authorized equity or equity-based compensation awards, including any equity appreciation rights, security-based performance units, “phantom” stock, profit-participation, or other security rights issued by the Parent, or other agreements, arrangements, or commitments of any character (contingent or otherwise) to which the Parent is party, in each case pursuant to which any Person is entitled to receive any payment from the Parent based, in whole or in part, on the value of any capital stock or other equity or voting securities or other equity interests of the Parent.
(d) All Each Subsidiary of Parent (including Acquisition Sub) on the issued and outstanding capital stock of the Merger Sub is, and at Merger Effective Time will be, owned, directly or indirectly, by the Parent. The Merger Sub has no outstanding options, warrants, rights, or any other agreements pursuant to which any Person other than the Parent may acquire any equity security of the Merger Sub. Except as would not be material to the Parent and its Subsidiaries, taken as a whole, none date hereof is listed on Section 4.2(d) of the Parent or any of its Subsidiaries has any obligation or has made any commitment to acquire any shares of capital stock or other equity or voting securities or other equity interests in any Person or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Person.
(e) The number of shares of authorized Parent Common Stock that have not been issued, subscribed for, or otherwise committed to be issued is at least equal to the number of shares of Parent Common Stock to be issued pursuant to the transactions contemplated by this Agreement.
(f) Schedule 5.2(f) accurately sets forth the name, type of entity, and jurisdiction of organization of each Subsidiary of the ParentDisclosure Letter. Except as set forth on Schedule 5.2(f)Section 4.2(d) of the Parent Disclosure Letter, all shares of Capital Stock of each Subsidiary (i) are ownedParent owns, directly or indirectly, by all of the Parentissued and outstanding company, partnership or corporate (as applicable) ownership interests in each such Subsidiary (including Acquisition Sub), free and clear of all Security Interests (other than Liens except for Permitted Exceptions); (ii) are duly authorized and validly issued; and (iii) were issued in compliance with Applicable Law and any preemptive or similar rights. There are no options, warrants, puts, calls, rights, convertible, or exchangeable securities, “phantom” unit rights, unit appreciation rights, unit-based performance units, commitments, contracts, arrangements, or undertakings of any kind to which any Subsidiary is a party or by which it is bound (i) obligating such Subsidiary to issue, deliver, transfer, or sell, or cause to be issued, delivered, transferred, or sold, additional shares of capital stock of such Subsidiary, or (ii) entitling any Person to any economic benefit based, directly or indirectly, on the value or price of any of the foregoing. No Subsidiary is or at any time has been insolvent within the meaning of Applicable LawLiens.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Portman Ridge Finance Corp), Merger Agreement (Harvest Capital Credit Corp)
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 (i) 95,000,000 shares of Parent Common Stock, and 26,456,751 55,628,004 of which were issued and outstanding and 8,023,769 of which were held by Parent as treasury stock, and (ii) 2,000,000 shares of preferred stock of Parent, par value $0.01 per share, no shares of which were outstanding. There are no other authorized classes of capital stock of Parent and and, except for the Parent Convertible Notes, no bonds, debentures, notes, 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, issued or outstanding. As of the close of business on the Parent Capitalization Date, there were (A) no outstanding options and warrants relating to 3,450,000 representing shares of Parent Common Stock, (B) outstanding Parent Equity Awards representing 751,969 shares of Parent Common Stock, of which (x) 352,324 were Parent RSU Awards and (y) 399,645 were Parent Restricted Stock Awards that are included in the number of shares of issued and outstanding Parent Common Stock set forth in subclause (i) above and (C) 7,729,225 shares of Parent Common Stock reserved for issuance upon conversion of the Parent Convertible Notes.
(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 Convertible Notes will be, when issued in accordance with the respective terms thereof, duly authorized and validly issued and issued, and, along with the shares of Parent Common Stock issuable pursuant to this Agreement (subject to obtaining the Parent Stockholder Approval), are, or will be when issued, fully paid, nonassessable, nonassessable and free of preemptive rights. All of the outstanding Parent Common Stock has been sold pursuant to an effective registration statement filed under the federal Securities Laws or an appropriate exemption therefrom.
(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(a4.2(a), there are no (Ai) existing options, warrants, calls, preemptive rights, subscriptions, subscriptions or other securities or rights, restricted stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, arrangements or commitments of any kind obligating the Parent or any of its Subsidiaries to issue, transfer, register, register or sell, or cause to be issued, transferred, registered, registered or sold, any shares of capital stock or other equity or voting securities of, or other equity interests in, Parent or any of the Parent its Subsidiaries or securities convertible into or exchangeable for such shares or other equity or voting securities or other equity interestsshares, or obligating the Parent to grant, extend, extend or enter into such options, warrants, calls, preemptive, subscriptions, subscriptions or other securities or rights, restricted stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, arrangements or commitments, (Bii) outstanding obligations of the Parent or any of its Subsidiaries to repurchase, redeem, redeem or otherwise acquire any capital stock or other equity or voting securities or other equity interests of the Parent or any of its Subsidiaries or any securities representing the right to purchase or otherwise receive any capital stock or other equity or voting securities or other equity interests of the ParentParent or any of its Subsidiaries, (Ciii) shareholder agreements, voting trusts, or similar agreements with any Person to which the Parent or any of its Subsidiaries is a party either (1A) restricting the transfer of the capital stock or other equity or voting interests of the Parent or any of its Subsidiaries or (2B) affecting the voting rights of capital stock or other equity or voting securities or other equity interests of the ParentParent or any of its Subsidiaries (including stockholder agreements, voting trusts or similar agreements), (Div) outstanding or authorized equity or equity-based compensation awards, including any equity appreciation rights, security-based performance units, “phantom” stock, profit-participation, participation or other security rights issued by the ParentParent or any of its Subsidiaries, or other agreements, arrangements, arrangements or commitments of any character (contingent or otherwise) to which the Parent or any of its Subsidiaries is party, in each case pursuant to which any Person is entitled to receive any payment from the Parent based, based in whole or in part, part on the value of any capital stock or other equity interests of Parent or voting securities any of its Subsidiaries or (v) outstanding obligations of Parent or any of its Subsidiaries to accelerate the vesting of any of its capital stock or other equity interests securities pursuant to the terms of the Parentany Parent Equity Awards.
(d) All of the issued and outstanding capital stock of the Merger Sub is, and at Merger the Effective Time will be, owned, directly or indirectly, owned by the Acquiror and beneficially owned by Parent. The Merger Sub has no outstanding options, warrants, rights, rights or any other agreements pursuant to which any Person other than the Parent Acquiror may acquire any equity security of the Merger Sub. Except as would not be material to the Parent and its Subsidiaries, taken as a whole, none of the Parent or any of its Subsidiaries has any obligation or has made any commitment to acquire any shares of capital stock or other equity or voting securities or other equity interests in any Person or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Person.
(e) The number of shares of authorized Parent Common Stock that have not been issued, subscribed for, or otherwise committed to be issued is at least equal to the number of shares of Parent Common Stock to be issued pursuant to the transactions contemplated by this Agreement.
(f) Schedule 5.2(f) accurately sets forth the name, type of entity, and jurisdiction of organization of each Subsidiary of the Parent. Except as set forth on Schedule 5.2(f), all shares of Capital Stock of each Subsidiary (i) are owned, directly or indirectly, by the Parent, free and clear of all Security Interests (other than Permitted Exceptions); (ii) are duly authorized and validly issued; and (iii) were issued in compliance with Applicable Law and any preemptive or similar rights. There are no options, warrants, puts, calls, rights, convertible, or exchangeable securities, “phantom” unit rights, unit appreciation rights, unit-based performance units, commitments, contracts, arrangements, or undertakings of any kind to which any Subsidiary is a party or by which it is bound (i) obligating such Subsidiary to issue, deliver, transfer, or sell, or cause to be issued, delivered, transferred, or sold, additional shares of capital stock of such Subsidiary, or (ii) entitling any Person to any economic benefit based, directly or indirectly, on the value or price of any of the foregoing. No Subsidiary is or at any time has been insolvent within the meaning of Applicable Law.
Appears in 2 contracts
Samples: Merger Agreement (Welbilt, Inc.), Merger Agreement (Middleby Corp)
Capitalization; Subsidiaries. (a) As of the close of business on May 16, 2024 (the “Parent Capitalization Date”), the The authorized capital stock of the Parent consisted consists of 100,000,000 shares of Parent Common StockStock and 5,000,000 shares of preferred stock, and 26,456,751 of which were issued and outstanding. There are no other classes of capital stock $0.025 par value per share, 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 outstandingPreferred Stock”). As of the close of business on the Parent Capitalization DateSeptember 13, 2010, there were outstanding options and warrants relating to 3,450,000 37,340,663 shares of Parent Common Stock and zero shares of Parent Preferred Stock, and Parent Options to purchase an aggregate of 760,316 shares of Parent Common Stock and warrants to purchase an aggregate of 65,317 shares of Parent Common Stock (of which options and warrants to purchase an aggregate of 484,068 shares and 65,317 shares, respectively, of Parent Common Stock were exercisable) and 5,395,841 shares of Parent Common Stock subject to outstanding restricted stock units.
(b) As of September 13, 2010, Parent has reserved 10,592,558 shares of Parent Common Stock for issuance on exercise of Parent Option and other equity awards. 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 Option Plans will be, when issued in accordance with the respective terms thereof, duly authorized and validly issued and areare fully paid and nonassessable. Except as set forth in the Parent SEC Documents, there are no shares of Parent Common Stock that are subject to vesting or will be when issued, fully paid, nonassessable, and free of preemptive rightsforfeiture restrictions.
(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) Except as set forth in this Section 5.2(a)5.05, as of September 13, 2010, there are no outstanding (Ai) 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 voting securities of Parent, (ii) securities of Parent convertible into or exchangeable for shares of capital stock or voting securities of Parent or (iii) options, warrants or other equity interests rights to acquire from Parent, or other obligation of the Parent to issue, any capital stock, voting securities or securities convertible into or exchangeable for such shares or other equity capital stock 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 stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, or commitments, (B) outstanding obligations of the Parent to repurchase, redeem, or otherwise acquire any capital stock or other equity or voting securities or other equity interests of the Parent or any securities representing the right to purchase or otherwise receive any capital stock or other equity or voting securities or other equity interests of the Parent, (C) shareholder agreements, voting trusts, or similar agreements with any Person to which the Parent is a party either (1) restricting the transfer of the capital stock or other equity or voting interests of the Parent or (2) affecting the voting rights of capital stock or other equity or voting securities or other equity interests of the Parent, or (D) outstanding or authorized equity or equity-based compensation awards, including any equity appreciation rights, security-based performance units, “phantom” stock, profit-participation, or other security rights issued by the Parent, or other agreements, arrangements, or commitments of any character (contingent or otherwise) to which the Parent is party, in each case pursuant to which any Person is entitled to receive any payment from the Parent based, in whole or in part, on the value of any capital stock or other equity or voting securities or other equity interests of the Parent.
(d) All of the issued and outstanding capital stock of the Merger Sub is, and at Merger Effective Time will be, owned, directly or indirectly, by the Parent. The Merger Sub has no outstanding options, warrants, rights, or any other agreements pursuant to which any Person other than the Parent may acquire any equity security of the Merger Sub. Except as would not be material to the Parent and its Subsidiaries, taken as a whole, none of the Parent or any of its Subsidiaries has any obligation or has made any commitment to acquire any shares of capital stock or other equity or voting securities or other equity interests in any Person or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Person.
(e) The number of shares of authorized Parent Common Stock that have not been issued, subscribed for, or otherwise committed to be issued is at least equal to the number of shares of Parent Common Stock to that may be issued pursuant to the transactions as contemplated by this Agreement.
(f) Schedule 5.2(f) accurately sets forth the nameAgreement will be, type of entitywhen issued, and jurisdiction of organization of each Subsidiary of the Parent. Except as set forth on Schedule 5.2(f), all shares of Capital Stock of each Subsidiary (i) are owned, directly or indirectly, by the Parent, free and clear of all Security Interests (other than Permitted Exceptions); (ii) are duly authorized and validly issued; , fully paid and (iii) were issued in compliance with Applicable Law nonassessable and not subject to any preemptive or similar rights. There Parent is the sole equity holder of Merger Sub and Second Merger Sub, each of which were formed solely for purposes of effecting the Transaction and neither of which hold any assets or carry on any business activities other than in connection with the Transaction. All of the outstanding equity interests of Merger Sub and Second Merger Sub have been duly authorized and validly issued and are no options, warrants, puts, calls, rights, convertible, or exchangeable securities, “phantom” unit rights, unit appreciation rights, unit-based performance units, commitments, contracts, arrangements, or undertakings of any kind to which any Subsidiary is a party or by which it is bound (i) obligating such Subsidiary to issue, deliver, transfer, or sell, or cause to be issued, delivered, transferred, or sold, additional shares of capital stock of such Subsidiary, or (ii) entitling any Person fully paid and nonassessable and not subject to any economic benefit based, directly or indirectly, on the value or price of any of the foregoing. No Subsidiary is or at any time has been insolvent within the meaning of Applicable Lawpreemptive rights.
Appears in 2 contracts
Samples: Merger Agreement (Occam Networks Inc/De), Merger Agreement (Calix, Inc)
Capitalization; Subsidiaries. (a) As of the close of business on May 164, 2024 2018 (the “Parent Capitalization Date”), the authorized capital stock of the Parent consisted of 100,000,000 500,000,000 shares of Parent Common Stock, and 26,456,751 78,933,586 of which were issued and outstandingoutstanding (including 1,060,935 shares of Parent Common Stock subject to Parent Equity Awards in the form of compensatory equity awards) and 36,924,604 of which were held by Parent as treasury stock. There are no other classes of capital stock of Parent and no bonds, debentures, notes, 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, issued or outstanding. As of the close of business on the Parent Capitalization Date, there were (A) outstanding options and warrants stock appreciation rights relating to 3,450,000 5,900 shares of Parent Common Stock and (B) outstanding Parent Equity Awards (other than options or stock appreciation rights relating to Parent Common Stock) representing 1,055,035 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, 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 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 Equity Awards since the Parent Capitalization Date in the ordinary course of business, or (iii) as set forth in Section 5.2(a4.2(a), there are no (A) existing options, warrants, calls, preemptive rights, subscriptions, subscriptions or other securities or rights, restricted stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, arrangements or commitments of any kind obligating the Parent to issue, transfer, register, register or sell, or cause to be issued, transferred, registered, 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, extend or enter into such options, warrants, calls, preemptive, subscriptions, subscriptions or other securities or rights, restricted stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, arrangements or commitments, (B) outstanding obligations of the Parent to repurchase, redeem, redeem or otherwise acquire any capital stock or other equity or voting securities or other equity interests of the Parent or any securities representing the right to purchase or otherwise receive any capital stock or other equity or voting securities or other equity interests of the Parent, (C) shareholder agreements, voting trusts, trusts or similar agreements with any Person to which the Parent is a party either (1) restricting the transfer of the capital stock or other equity or voting interests of the Parent or (2) affecting the voting rights of capital stock or other equity or voting securities or other equity interests of the Parent, or (D) outstanding or authorized equity or equity-based compensation awards, including any equity appreciation rights, security-based performance units, “phantom” stock, profit-participation, participation or other security rights issued by the Parent, or other agreements, arrangements, arrangements or commitments of any character (contingent or otherwise) to which the Parent is party, in each case pursuant to which any Person is entitled to receive any payment from the Parent based, in whole or in part, on the value of any capital stock or other equity or voting securities or other equity interests of the Parent.
(d) All of the issued and outstanding capital stock of the Merger Sub is, and at Merger the Effective Time will be, owned, directly or indirectly, by the Parent. The Merger Sub has no outstanding options, warrants, rights, rights or any other agreements pursuant to which any Person other than the Parent may acquire any equity security of the Merger Sub. Except as would not be material to the Parent and its Subsidiaries, taken as a whole, none of the Parent or any of its Subsidiaries has any obligation or has made any commitment to acquire any shares of capital stock or other equity or voting securities or other equity interests in any Person or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Person.
(e) The number of shares of authorized Parent Common Stock that have not been issued, subscribed for, for or otherwise committed to be issued is at least equal to the number of shares of Parent Common Stock to be issued pursuant to the transactions contemplated by this Agreement.
(f) Schedule 5.2(f) accurately sets forth the name, type of entity, and jurisdiction of organization of each Subsidiary of the Parent. Except as set forth on Schedule 5.2(f), all shares of Capital Stock of each Subsidiary (i) are owned, directly or indirectly, by the Parent, free and clear of all Security Interests (other than Permitted Exceptions); (ii) are duly authorized and validly issued; and (iii) were issued in compliance with Applicable Law and any preemptive or similar rights. There are no options, warrants, puts, calls, rights, convertible, or exchangeable securities, “phantom” unit rights, unit appreciation rights, unit-based performance units, commitments, contracts, arrangements, or undertakings of any kind to which any Subsidiary is a party or by which it is bound (i) obligating such Subsidiary to issue, deliver, transfer, or sell, or cause to be issued, delivered, transferred, or sold, additional shares of capital stock of such Subsidiary, or (ii) entitling any Person to any economic benefit based, directly or indirectly, on the value or price of any of the foregoing. No Subsidiary is or at any time has been insolvent within the meaning of Applicable Law.
Appears in 1 contract
Samples: Merger Agreement (International Flavors & Fragrances Inc)
Capitalization; Subsidiaries. (a) As of the close of business on May 16, 2024 (the “Parent Capitalization Date”), the The authorized capital stock of the Parent consisted Company consists of 100,000,000 200,000 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 At the close of business on the Parent Capitalization Datedate hereof, there were outstanding options and warrants relating to 3,450,000 114,195.55 shares of Parent Common Stock are issued and outstanding, 85,804.45 shares of Common Stock are held in treasury, Options with respect to an aggregate of 13,307.80 shares of Common Stock are issued and outstanding, and 1,444.27 shares of Common Stock are subject to issuance pursuant to the terms of the Option Plan. Schedule 3.04(a) in the Disclosure Schedule contains a true, correct and complete list of the authorized, issued and outstanding Equity Interests of the Company, including each Person who, as of the date hereof, is the record and beneficial owner of any (i) shares of Common Stock, together with the number of shares of Common Stock held by such Person and (ii) Options, together with the number of shares of Common Stock subject to each such Option, the number of Options that are, as of the date of this Agreement, expected to vest in connection with the closing of the transaction contemplated by this Agreement, and the exercise price per share. All of the issued and outstanding Equity Interests of the Company have been duly authorized and validly issued and, if applicable, are fully paid and non-assessable, were issued in compliance with applicable Laws, were not issued in breach or violation of any pre-emptive rights, call options, rights of first refusal, subscription rights, transfer restrictions or similar rights of any Person or under the Company’s Organizational Documents, and are owned beneficially and of record by the Person set forth on Schedule 3.04(a) in the Disclosure Schedule, free and clear of all Liens other than (i) general restrictions on transfer arising under the Securities Act and applicable state securities Laws and (ii) Liens granted in connection with the Credit Agreement and all other Loan Documents (as defined in the Credit Agreement) (which Liens will be released following the repayment of the Indebtedness of the Company and its Subsidiaries set forth on the Indebtedness Payoff Schedule pursuant to the Payoff Letters).
(b) All Schedule 3.04(b) in the Disclosure Schedule sets forth each of the Company’s Subsidiaries and, with respect to each such Subsidiary, its jurisdiction of incorporation, formation or organization. Other than the Subsidiaries, none of the Company or any Subsidiary of the Company owns any Equity Interest (or the right or obligation to acquire any Equity Interest) of any Person. Except as set forth on Schedule 3.04(b) in the Disclosure Schedule, 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 capital stock or other compensation plans Equity Interests of the Parent will be, when issued in accordance with the respective terms thereof, each such Subsidiary have been duly authorized and validly issued and, if applicable, are fully paid and arenon-assessable, were issued in compliance with applicable Laws, were not issued in breach or violation of any pre-emptive rights, call options, rights of first refusal, subscription rights, transfer restrictions or similar rights of any Person or under such Subsidiary’s Organizational Documents, and are wholly owned beneficially and of record, directly or indirectly, by the Company or one of the Company’s Subsidiaries, free and clear of all Liens other than (i) general restrictions on transfer arising under the Securities Act and applicable state securities Laws, and (ii) any Permitted Liens. Other than the Company’s Subsidiaries set forth on Schedule 3.04(b) in the Disclosure Schedule, neither the Company nor any of its Subsidiaries owns or controls, directly or indirectly, any interest in any other corporation, partnership, limited liability company, association or other entity. Each of the Company’s Subsidiaries identified on Schedule 3.04(b) in the Disclosure Schedule is a corporation, limited liability company, or other entity duly organized, validly existing and in good standing under the Laws of the jurisdiction of its state of incorporation or organization and has full organizational power and authority to own, lease and operate its properties and carry on its business as presently conducted. Each of the Company’s Subsidiaries has the requisite organizational power and authority to execute and deliver the documents and agreements contemplated by this Agreement to which such Subsidiary is a party, perform its obligations thereunder and consummate the transactions contemplated thereby. The execution and delivery by each of the Company’s Subsidiaries of the documents and agreements contemplated by this Agreement to which such Subsidiary is a party, the performance by such Subsidiary of its obligations thereunder and the consummation by such Subsidiary of the transactions contemplated thereby have been authorized by all requisite organizational action. Each of the Company’s Subsidiaries identified on Schedule 3.04(b) in the Disclosure Schedule is duly licensed and qualified to conduct business and in good standing under the Laws of each jurisdiction in which such qualification is required, except in such jurisdictions where the lack of such licensure or qualification, or the failure to be in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. On or prior to the Closing the other documents contemplated by this Agreement to which any of the Company’s Subsidiaries is or is specified to be a party will be when issuedduly executed and delivered by such Subsidiary and assuming the due authorization, fully paidexecution and delivery by each of the other parties thereto, nonassessableif any, will constitute, the legal, valid and free binding obligation of preemptive rightssuch Subsidiary, enforceable in accordance with their terms and conditions, subject to the Enforceability Exceptions.
(c) As There are no outstanding shares of Common Stock or other Equity Interests of the date of this AgreementCompany, other than the Company Stock and Options. Except for the Options set forth on Schedule 3.04(a) in the Disclosure Schedule, there are (i) issuances no securities of the Company or any of its Subsidiaries convertible into or exercisable or exchangeable for shares of Parent Common Stock pursuant to the exercise or settlement, as applicable, other Equity Interests of the Parent equity awards outstanding as Company or any of the close of business on the Parent Capitalization Date or under other compensation plans of the Parent in accordance with their termsits Subsidiaries, (ii) the grant no outstanding 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 authorized options, warrants, callspurchase rights, subscription rights, rights of first refusal, preemptive rights, subscriptionsconversion rights, exchange rights, “phantom” rights, appreciation rights, or other securities or rights, restricted stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, contracts or commitments relating to the Common Stock or any other Equity Interests of the Company or any kind obligating of its Subsidiaries, and no obligations that require or could require the Parent Company or any of its Subsidiaries to issue, transfersell, register, or selldeliver, or cause to be issued, transferred, registeredsold or delivered, or sold, otherwise cause to become outstanding any shares of capital stock Common Stock or other equity or voting securities or other equity interests Equity Interests of the Parent Company or any of its Subsidiaries or any securities convertible into or exchangeable exercisable for such shares of Common Stock or other equity Equity Interests of the Company or voting securities any of its Subsidiaries, (iii) no outstanding or other equity interests, or obligating the Parent to grant, extend, or enter into such options, warrants, authorized calls, preemptivestock appreciation, subscriptionsphantom stock, or other securities or rightsstock-based performance units, profit participation, restricted stock, restricted stock awardsunits, restricted stock unit awards, convertible securities, agreements, arrangements, or commitments, (B) outstanding obligations of the Parent to repurchase, redeem, or otherwise acquire any capital stock or other equity or voting securities or other equity interests of the Parent or any securities representing the right to purchase or otherwise receive any capital stock or other equity or voting securities or other equity interests of the Parent, (C) shareholder agreements, voting trusts, or similar agreements with any Person to which the Parent is a party either (1) restricting the transfer of the capital stock or other equity or voting interests of the Parent or (2) affecting the voting rights of capital stock or other equity or voting securities or other equity interests of the Parent, or (D) outstanding or authorized equity or equity-based compensation awards, including any equity appreciation rights, security-based performance units, “phantom” stock, profit-participation, equivalents or other security similar rights issued by the Parent, of or other agreements, arrangements, or commitments of any character (contingent or otherwise) to which the Parent is party, in each case pursuant to which any Person is entitled to receive any payment from the Parent based, in whole or in part, on the value of any capital stock or other equity or voting securities or other equity interests of the Parent.
(d) All of the issued and outstanding capital stock of the Merger Sub is, and at Merger Effective Time will be, owned, directly or indirectly, by the Parent. The Merger Sub has no outstanding options, warrants, rights, or any other agreements pursuant to which any Person other than the Parent may acquire any equity security of the Merger Sub. Except as would not be material with respect to the Parent and its Subsidiaries, taken as a whole, none of the Parent Company or any of its Subsidiaries has any Subsidiaries, and (iv) no repurchase, redemption or other obligation or has made any commitment of the Company to acquire any shares of capital stock the foregoing securities, any shares of Common Stock or other equity Equity Interests of the Company or any of its Subsidiaries. Except for the Equity Agreements, there are no voting securities trusts, stockholder agreements, or other equity interests in any Person Contracts or understandings with respect to provide funds to the voting or make any investment (in transfer of the form of a loan, capital contribution or otherwise) in any Person.
(e) The number of shares of authorized Parent Common Stock that have not been issued, subscribed for, or otherwise committed to be issued is at least equal to the number of shares of Parent Common Stock to be issued pursuant to the transactions contemplated by this Agreement.
(f) Schedule 5.2(f) accurately sets forth the name, type of entity, and jurisdiction of organization of each Subsidiary other Equity Interests of the Parent. Except as set forth on Schedule 5.2(f), all shares of Capital Stock of each Subsidiary (i) are owned, directly Company or indirectly, by the Parent, free and clear of all Security Interests (other than Permitted Exceptions); (ii) are duly authorized and validly issued; and (iii) were issued in compliance with Applicable Law and any preemptive or similar rights. There are no options, warrants, puts, calls, rights, convertible, or exchangeable securities, “phantom” unit rights, unit appreciation rights, unit-based performance units, commitments, contracts, arrangements, or undertakings of any kind to which any Subsidiary is a party or by which it is bound (i) obligating such Subsidiary to issue, deliver, transfer, or sell, or cause to be issued, delivered, transferred, or sold, additional shares of capital stock of such Subsidiary, or (ii) entitling any Person to any economic benefit based, directly or indirectly, on the value or price of any of the foregoing. No Subsidiary is or at any time has been insolvent within the meaning of Applicable Lawits Subsidiaries.
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Capitalization; Subsidiaries. (a) As of the close of business on May 16, 2024 (the “Parent Capitalization Date”), the The authorized capital stock of the Parent consisted MidConn Bank consists of 100,000,000 8,000,000 shares of Parent MidConn Bank Common Stock and 1,000,000 shares of serial preferred stock, no par value (the "MidConn Bank Preferred 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 Datedate hereof, there were are (x) 1,953,469 shares of MidConn Bank Common Stock issued and outstanding, (y) no shares of MidConn Bank Common Stock reserved for issuance upon exercise of outstanding stock options or otherwise, except for (i) 83,830 shares of MidConn Bank Common Stock reserved for issuance pursuant to outstanding options under the MidConn Stock Option Plans and warrants relating to 3,450,000 (ii) 485,319 shares of Parent MidConn Bank Common Stock.
Stock reserved for issuance upon exercise of the option to be issued to EFC pursuant to the Option Agreement, and (bz) no shares of MidConn Bank Preferred Stock issued or outstanding, held in MidConn Bank's treasury or reserved for issuance upon exercise of outstanding stock options or otherwise. All of the issued and outstanding shares of Parent MidConn Bank 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, been duly authorized and validly issued and are, or will be when issued, are fully paid, nonassessable, nonassessable and free of preemptive rights.
(c) As of , with no personal liability attaching to the date of this Agreement, other than (i) issuances of ownership thereof. Except with respect to the aforementioned options to purchase 83,830 shares of Parent MidConn Bank Common Stock issued pursuant to the exercise or settlementMidConn Stock Option Plans and for the Option Agreement, as applicableand except for formula option grants under the MidConn Bank 1994 Stock Option Plan for Outside Directors, of the Parent equity awards MidConn Bank does not have and is not bound by any outstanding as of the close of business on the Parent Capitalization Date or under other compensation plans of the Parent in accordance with their termssubscriptions, (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, commitments or other securities or rights, restricted stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, or commitments agreements of any kind obligating character calling for the Parent to issue, transfer, register, purchase or sell, or cause to be issued, transferred, registered, or sold, issuance of any shares of capital stock MidConn Bank Common Stock or MidConn Bank Preferred Stock or any other equity or voting securities or other equity interests security 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 stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, or commitments, (B) outstanding obligations of the Parent to repurchase, redeem, or otherwise acquire any capital stock or other equity or voting securities or other equity interests of the Parent MidConn Bank or any securities representing the right to purchase or otherwise receive any capital stock or other equity or voting securities or other equity interests shares of the Parent, (C) shareholder agreements, voting trusts, or similar agreements with any Person to which the Parent is a party either (1) restricting the transfer of the capital stock or other equity or voting interests of the Parent or (2) affecting the voting rights of capital stock or other equity or voting securities or other equity interests of the Parent, or (D) outstanding or authorized equity or equity-based compensation awards, including any equity appreciation rights, security-based performance units, “phantom” stock, profit-participation, or other security rights issued by the Parent, or other agreements, arrangements, or commitments of any character (contingent or otherwise) to which the Parent is party, in each case pursuant to which any Person is entitled to receive any payment from the Parent based, in whole or in part, on the value of any capital stock or other equity or voting securities or other equity interests of the Parent.
(d) All of the issued and outstanding capital stock of the Merger Sub is, and at Merger Effective Time will be, owned, directly or indirectly, by the Parent. The Merger Sub has no outstanding options, warrants, rights, MidConn Bank Common Stock or any other agreements pursuant to which any Person other than the Parent may acquire any equity security of the Merger SubMidConn Bank. Except as would not be material to the Parent and its Subsidiaries, taken as a whole, none The names of the Parent or any optionees, the date of its Subsidiaries has any obligation or has made any commitment each option to acquire any shares of capital stock or other equity or voting securities or other equity interests in any Person or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Person.
(e) The number of shares of authorized Parent purchase MidConn Bank Common Stock that have not been issuedgranted, subscribed for, or otherwise committed to be issued is at least equal to the number of shares subject to each such option, the expiration date of Parent Common each such option, and the price at which each such option may be exercised under the applicable MidConn Stock Option Plan are set forth in Section 3.2(a) of the MidConn Disclosure Schedule. Since September 30, 1996, MidConn Bank has not issued any shares of its capital stock or any options or other securities convertible into or exercisable for any shares of its capital stock, other than pursuant to be the exercise of director or employee stock options granted prior to September 30, 1995 under the MidConn Stock Option Plans or shares issued pursuant to the transactions contemplated by this AgreementMidConn Bank Dividend Reinvestment Plan (the "MidConn DRIP") and other formula option grants under the MidConn Bank 1994 Stock Option Plan for Outside Directors.
(fb) Schedule 5.2(f) accurately sets forth the name, type of entity, and jurisdiction of organization of each Subsidiary of the Parent. Except as set forth on Schedule 5.2(f), all shares of Capital Stock of each Subsidiary (iat Section 3.2(b) are owned, directly or indirectly, by the Parent, free and clear of all Security Interests (other than Permitted Exceptions); (ii) are duly authorized and validly issued; and (iii) were issued in compliance with Applicable Law and any preemptive or similar rights. There are no options, warrants, puts, calls, rights, convertible, or exchangeable securities, “phantom” unit rights, unit appreciation rights, unit-based performance units, commitments, contracts, arrangements, or undertakings of any kind to which any Subsidiary is a party or by which it is bound (i) obligating such Subsidiary to issue, deliver, transfer, or sell, or cause to be issued, delivered, transferred, or sold, additional shares of capital stock of such Subsidiary, or (ii) entitling any Person to any economic benefit based, directly or indirectly, on the value or price of any of the foregoing. No Subsidiary is or at MidConn Disclosure Schedule, MidConn Bank has no Subsidiaries, and has not owned any time has been insolvent within Subsidiaries during the meaning of Applicable Lawperiod from September 30, 1985 through the date hereof.
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Capitalization; Subsidiaries. (a) As of the close date hereof, the authorized share capital of business on May 16Parent consists of (i) an unlimited number of ordinary shares of no par value, 2024 7,978,937 of which are issued and outstanding, (ii) an unlimited number of Class A preferred shares of no par value, none of which are issued and outstanding, (iii) an unlimited number of Class B preferred shares of no par value, none of which are issued and outstanding, (iv) an unlimited number of Class C preferred shares of no par value, none of which are issued and outstanding, (v) an unlimited number of Class D preferred shares of no par value, none of which are issued and outstanding, (vi) an unlimited number of Class E preferred shares of no par value, none of which are issued and outstanding ((i) through (vi) collectively, the “Parent Capitalization DateShares”). All the outstanding Parent Shares and Parent Warrants have been duly and validly issued and are fully paid and non-assessable, and were issued in accordance with the authorized capital stock registration or qualification requirements of the Parent consisted of 100,000,000 shares of Parent Common StockSecurities Act, 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, any relevant state securities Laws or other Indebtedness or securities of the Parent having the right pursuant 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 Stockvalid exemptions therefrom.
(b) All Except as set forth in Schedule 4.04 of the issued and Parent Disclosure Letter, as of the date hereof, Parent has not granted any outstanding shares options, share appreciation rights, warrants, rights or other securities convertible into or exchangeable or exercisable for Parent Shares, or any other commitments or agreements providing for the issuance of additional shares, the sale of treasury shares, for the repurchase or redemption of any Parent Common Stock have beenShares or the value of which is determined by reference to the Parent Shares, and all there are no contracts of the shares any kind which may obligate Parent to issue, purchase, redeem or otherwise acquire any of its Parent Common Stock that are required to be Shares.
(c) The Per Share Closing Merger Consideration and any Parent Ordinary Shares 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 beSection 1.05(e), when issued in accordance with the respective terms thereofhereof, shall be duly authorized and validly issued and are, or will be when issued, fully paid, nonassessablepaid and nonassessable and issued in compliance with all applicable state and federal securities Laws and not subject to, and free not issued in violation of, any Lien, purchase option, call option, right of first refusal, preemptive rights.
(c) As right, subscription right or any similar right under any provision of the date of this Agreementapplicable Law, 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 stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, or commitments, (B) outstanding obligations of the Parent to repurchase, redeem, or otherwise acquire any capital stock or other equity or voting securities or other equity interests of the Parent Governing Documents or any securities representing the right to purchase or otherwise receive any capital stock or other equity or voting securities or other equity interests of the Parent, (C) shareholder agreements, voting trusts, or similar agreements with any Person contract to which the Parent is a party either (1) restricting the transfer of the capital stock or other equity or voting interests of the Parent or (2) affecting the voting rights of capital stock or other equity or voting securities or other equity interests of the Parent, or (D) outstanding or authorized equity or equity-based compensation awards, including any equity appreciation rights, security-based performance units, “phantom” stock, profit-participation, or other security rights issued by the Parent, or other agreements, arrangements, or commitments of any character (contingent or otherwise) to which the Parent is party, in each case pursuant to which any Person is entitled to receive any payment from the Parent based, in whole or in part, on the value of any capital stock or other equity or voting securities or other equity interests of the Parentotherwise bound.
(d) All of the issued and outstanding capital stock of the Parent has no Subsidiaries, apart from Merger Sub isSub, and at Merger Effective Time will be, owneddoes not own, directly or indirectly, by the Parent. The Merger Sub has no outstanding options, warrants, rights, or any other agreements pursuant to which any Person other than the Parent may acquire any equity security of the Merger Sub. Except as would not be material to the Parent and its Subsidiaries, taken as a whole, none of the Parent or any of its Subsidiaries has any obligation or has made any commitment to acquire any shares of capital stock interests or other interests or investments (whether equity or voting securities or other equity interests debt) in any Person Person, whether incorporated or unincorporated. Parent is not party to provide funds any contract that obligates Parent to invest money in, loan money to or make any investment (in the form of a loan, capital contribution or otherwise) in to any other Person.
(e) The number of shares of authorized Parent Common Stock that have not been issued, subscribed for, or otherwise committed to be issued is at least equal to the number of shares of Parent Common Stock to be issued pursuant to the transactions contemplated by this Agreement.
(f) Schedule 5.2(f) accurately sets forth the name, type of entity, and jurisdiction of organization of each Subsidiary As of the Parent. Except as set forth on Schedule 5.2(f)date hereof, all shares of Capital Stock of each Subsidiary (i) are owned, directly or indirectly, by the Parent, free and clear of all Security Interests (other than Permitted Exceptions); (ii) are duly authorized and validly issued; and (iii) were issued in compliance with Applicable Law and any preemptive or similar rights. There are no options, warrants, puts, calls, rights, convertible, or exchangeable securities, “phantom” unit rights, unit appreciation rights, unit-based performance units, commitments, contracts, arrangements, or undertakings of any kind to which any Subsidiary is a party or by which it is bound (i) obligating such Subsidiary to issue, deliver, transfer, or sell, or cause to be issued, delivered, transferred, or sold, additional shares of capital stock of such SubsidiaryMerger Sub consists of 100 shares of common stock, or (ii) entitling any Person to any economic benefit basedpar value $0.0001 per share, directly or indirectlyone of which is issued and outstanding, on the value or price and which share is held of any of the foregoing. No Subsidiary is or at any time has been insolvent within the meaning of Applicable Lawrecord and beneficially by Parent.
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Capitalization; Subsidiaries. (a) As of the close date hereof, the authorized share capital of business on May 16Parent consists of (i) 55,000,000 shares of Class A common stock, 2024 $0.0001 per share par value, 10,440,500 of which are issued and outstanding, (ii) 5,000,000 shares of Class B common stock, $0.0001 per share par value, 2,443,750 of which are issued and outstanding, and (iii) 2,000,000 shares of no par value, none of which are issued and outstanding ((i) through (iii) collectively, the “Parent Capitalization DateShares”). All the outstanding Parent Shares have been duly and validly issued and are fully paid and non-assessable, and were issued in accordance with the authorized capital stock registration or qualification requirements of the Parent consisted of 100,000,000 shares of Parent Common StockSecurities Act, 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, any relevant state securities Laws or other Indebtedness or securities of the Parent having the right pursuant 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 Stockvalid exemptions therefrom.
(b) All Except as set forth in Schedule 4.04 of the issued Parent Disclosure Letter, as of the date hereof, Parent has not granted any outstanding options, share appreciation rights, warrants, rights or other securities convertible into or exchangeable or exercisable for Parent Shares, or any other commitments or agreements providing for the issuance of additional shares, the sale of treasury shares, for the repurchase or redemption of any Parent Shares or the value of which is determined by reference to the Parent Shares, and outstanding shares there are no contracts of any kind which may obligate Parent to issue, purchase, redeem or otherwise acquire any of its Parent Shares.
(c) The Closing Merger Consideration Shares, the Gamma Earnout Consideration Shares and any Parent Common Stock have been, and all of the shares of Parent Common Stock that are required to be Shares 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 beSection 1.02, when issued in accordance with the respective terms thereofhereof, shall be duly authorized and validly issued and are, or will be when issued, fully paid, nonassessablepaid and nonassessable and issued in compliance with all applicable state and federal securities Laws and not subject to, and free not issued in violation of, any Lien, purchase option, call option, right of first refusal, preemptive rights.
(c) As right, subscription right or any similar right under any provision of the date of this Agreementapplicable Law, 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 stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, or commitments, (B) outstanding obligations of the Parent to repurchase, redeem, or otherwise acquire any capital stock or other equity or voting securities or other equity interests of the Parent Governing Documents or any securities representing the right to purchase or otherwise receive any capital stock or other equity or voting securities or other equity interests of the Parent, (C) shareholder agreements, voting trusts, or similar agreements with any Person contract to which the Parent is a party either (1) restricting the transfer of the capital stock or other equity or voting interests of the Parent or (2) affecting the voting rights of capital stock or other equity or voting securities or other equity interests of the Parent, or (D) outstanding or authorized equity or equity-based compensation awards, including any equity appreciation rights, security-based performance units, “phantom” stock, profit-participation, or other security rights issued by the Parent, or other agreements, arrangements, or commitments of any character (contingent or otherwise) to which the Parent is party, in each case pursuant to which any Person is entitled to receive any payment from the Parent based, in whole or in part, on the value of any capital stock or other equity or voting securities or other equity interests of the Parentotherwise bound.
(d) All of the issued and outstanding capital stock of the Parent has no Subsidiaries, apart from Merger Sub isSubs, and at Merger Effective Time will be, owneddoes not own, directly or indirectly, by the Parent. The Merger Sub has no outstanding options, warrants, rights, or any other agreements pursuant to which any Person other than the Parent may acquire any equity security of the Merger Sub. Except as would not be material to the Parent and its Subsidiaries, taken as a whole, none of the Parent or any of its Subsidiaries has any obligation or has made any commitment to acquire any shares of capital stock interests or other interests or investments (whether equity or voting securities or other equity interests debt) in any Person Person, whether incorporated or unincorporated. Parent is not party to provide funds any contract that obligates Parent to invest money in, loan money to or make any investment (in the form of a loan, capital contribution or otherwise) in to any other Person.
(e) The number of shares of authorized Parent Common Stock that have not been issued, subscribed for, or otherwise committed to be issued is at least equal to the number of shares of Parent Common Stock to be issued pursuant to the transactions contemplated by this Agreement.
(f) Schedule 5.2(f) accurately sets forth the name, type of entity, and jurisdiction of organization of each Subsidiary As of the Parent. Except as set forth on Schedule 5.2(f)date hereof, all shares of Capital Stock of each Subsidiary (i) are owned, directly or indirectly, by the Parent, free and clear of all Security Interests (other than Permitted Exceptions); (ii) are duly authorized and validly issued; and (iii) were issued in compliance with Applicable Law and any preemptive or similar rights. There are no options, warrants, puts, calls, rights, convertible, or exchangeable securities, “phantom” unit rights, unit appreciation rights, unit-based performance units, commitments, contracts, arrangements, or undertakings of any kind to which any Subsidiary is a party or by which it is bound (i) obligating such Subsidiary to issue, deliver, transfer, or sell, or cause to be issued, delivered, transferred, or sold, additional shares of capital stock of such Subsidiaryeach Merger Subs consists of 100 shares of common stock, or (ii) entitling any Person to any economic benefit basedpar value $0.0001 per share, directly or indirectlyone of which is issued and outstanding, on the value or price and which share is held of any of the foregoing. No Subsidiary is or at any time has been insolvent within the meaning of Applicable Lawrecord and beneficially by Parent.
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Capitalization; Subsidiaries. (a) As of the close of business on May 16September 30, 2024 (the “Parent Capitalization Date”)2022, the authorized capital stock of the Parent consisted consists of 100,000,000 (i) 200,000,000 shares of Parent Common Stock, and 26,456,751 30,887,360 of which were issued and outstanding and zero of which were held by Parent as treasury stock, and (ii) 10,000 shares of preferred stock of Parent, par value $0.001 per share, zero shares of which were outstanding. There are no other classes Neither of capital Acquisition Sub nor Acquisition Sub 2 has any Subsidiaries or shares of preferred 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, 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, been duly authorized and validly issued and are, or will be when issued, are fully paid, nonassessable, nonassessable and free of preemptive rights. All of the Parent Common Stock has been sold pursuant to an effective registration statement filed under the federal securities Laws or an appropriate exemption therefrom and in accordance with the Investment Company Act.
(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)hereof, there are no existing (Ai) existing options, warrants, calls, preemptive rights, subscriptions, subscriptions or other securities or rights, restricted stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, agreements or commitments of any kind character to which Parent or any of its Subsidiaries (including Acquisition Sub and Acquisition Sub 2) is a party obligating the Parent or any of its Subsidiaries (including Acquisition Sub and Acquisition Sub 2) to issue, transfer, register, transfer or sell, or cause to be issued, transferred, registered, or sold, sell any shares of capital stock or other equity interest in Parent or voting securities or other equity interests any of the Parent its Subsidiaries (including Acquisition Sub and Acquisition Sub 2) 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 stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, or commitments, (Bii) outstanding contractual obligations of the Parent or any of its Subsidiaries (including Acquisition Sub and Acquisition Sub 2) to repurchase, redeem, redeem or otherwise acquire any capital stock of Parent or other equity or voting securities or other equity interests any of the Parent its Subsidiaries or any securities representing the right to purchase or otherwise receive any capital stock of Parent or other any of its Subsidiaries, (iii) appreciation rights, phantom equity or similar rights with respect to, or valued in whole or in part in reference to, Parent or any of its Subsidiaries (including Acquisition Sub and Acquisition Sub 2) or (iv) voting securities or other equity interests of the Parent, (C) shareholder agreements, voting trusts, trusts or similar agreements with any Person to which the Parent is a party either (1) restricting with respect to the transfer voting of the capital stock or other equity or voting interests of the Parent or (2) affecting the voting rights of capital stock or other equity or voting securities or other equity interests of the Parent, or (D) outstanding or authorized equity or equity-based compensation awards, including any equity appreciation rights, security-based performance units, “phantom” stock, profit-participation, or other security rights issued by the Parent, or other agreements, arrangements, or commitments of any character (contingent or otherwise) to which the Parent is party, in each case pursuant to which any Person is entitled to receive any payment from the Parent based, in whole or in part, on the value of any capital stock or other equity or voting securities or other equity interests of the Parent.
(d) All Each Subsidiary of Parent (including Acquisition Sub and Acquisition Sub 2) on the issued and outstanding capital stock of the Merger Sub is, and at Merger Effective Time will be, owned, directly or indirectly, by the Parent. The Merger Sub has no outstanding options, warrants, rights, or any other agreements pursuant to which any Person other than the Parent may acquire any equity security of the Merger Sub. Except as would not be material to the Parent and its Subsidiaries, taken as a whole, none date hereof is listed on Section 4.2(d) of the Parent or any of its Subsidiaries has any obligation or has made any commitment to acquire any shares of capital stock or other equity or voting securities or other equity interests in any Person or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Person.
(e) The number of shares of authorized Parent Common Stock that have not been issued, subscribed for, or otherwise committed to be issued is at least equal to the number of shares of Parent Common Stock to be issued pursuant to the transactions contemplated by this Agreement.
(f) Schedule 5.2(f) accurately sets forth the name, type of entity, and jurisdiction of organization of each Subsidiary of the ParentDisclosure Letter. Except as set forth on Schedule 5.2(f)Section 4.2(d) of the Parent Disclosure Letter, all shares of Capital Stock of each Subsidiary (i) are ownedParent owns, directly or indirectly, by all of the Parentissued and outstanding company, partnership or corporate (as applicable) ownership interests in each such Subsidiary (including Acquisition Sub and Acquisition Sub 2), free and clear of all Security Interests Liens except for Permitted Liens, and all of such company, partnership or corporate (other than Permitted Exceptions); (iias applicable) ownership interests are duly authorized and validly issued; issued and (iii) were issued in compliance with Applicable Law are fully paid, nonassessable and any free of preemptive or similar rights. There are no options, warrants, puts, calls, rights, convertible, or exchangeable securities, “phantom” unit rights, unit appreciation rights, unit-based performance units, commitments, contracts, arrangements, or undertakings of any kind to which any Subsidiary is a party or by which it is bound (i) obligating such Subsidiary to issue, deliver, transfer, or sell, or cause to be issued, delivered, transferred, or sold, additional shares of capital stock of such Subsidiary, or (ii) entitling any Person to any economic benefit based, directly or indirectly, on the value or price of any of the foregoing. No Subsidiary is or at any time has been insolvent within the meaning of Applicable Law.
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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 (i) 1,000,000,000 shares of Parent Common Stock, and 26,456,751 143,777,488 of which were issued and outstanding and 13,587,492 of which were held by Parent as treasury stock, and (ii) 25,000,000 shares of preferred stock of Parent, without par value, no shares of which were outstanding. There are no other classes of capital stock of Parent and no bonds, debentures, notes, 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, issued or outstanding. As of the close of business on the Parent Capitalization Date, there were (A) outstanding options to purchase 3,893,821 shares of Parent Common Stock and warrants relating (B) outstanding Parent Equity Awards (other than options to 3,450,000 purchase Parent Common Stock) representing 756,217 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 Awards, the Parent 2015 Long-Term Incentives Plan or the Parent Employee Stock Purchase Plan will be, when issued in accordance with the respective terms thereof, duly authorized and validly issued and issued, and, along with the shares of Parent Common Stock issuable pursuant to this Agreement (subject to obtaining the Parent Stockholder Approval), are, or will be when issued, fully paid, nonassessable, nonassessable and free of preemptive rights. All of the outstanding Parent Common Stock has been sold pursuant to an effective registration statement filed under the federal securities Laws or an appropriate exemption therefrom.
(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(a4.2(a), there are no (Ai) existing options, warrants, calls, preemptive rights, subscriptions, subscriptions or other securities or rights, restricted stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, arrangements or commitments of any kind obligating the Parent to issue, transfer, register, register or sell, or cause to be issued, transferred, registered, 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 interestsshares, or obligating the Parent to grant, extend, extend or enter into such options, warrants, calls, preemptive, subscriptions, subscriptions or other securities or rights, restricted stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, arrangements or commitments, (Bii) outstanding obligations of the Parent to repurchase, redeem, redeem or otherwise acquire any capital stock or other equity or voting securities or other equity interests of the Parent or any securities representing the right to purchase or otherwise receive any capital stock or other equity or voting securities or other equity interests of the Parent, (Ciii) shareholder stockholder agreements, voting trusts, trusts or similar agreements with any Person to which the Parent is a party either (1A) restricting the transfer of the capital stock or other equity or voting interests of the Parent or (2B) affecting the voting rights of capital stock or other equity or voting securities or other equity interests of the Parent, Parent or (Div) outstanding or authorized equity or equity-based compensation awards, including any equity appreciation rights, security-based performance units, “phantom” stock, profit-participation, participation or other security rights issued by the Parent, or other agreements, arrangements, arrangements or commitments of any character (contingent or otherwise) to which the Parent is party, in each case pursuant to which any Person is entitled to receive any payment from the Parent based, based in whole or in part, part on the value of any capital stock or other equity or voting securities or other equity interests of the Parent.
(d) All of the issued and outstanding capital stock of the Merger Sub is, and at Merger the Effective Time will be, owned, directly owned by Parent or indirectly, by the a direct or indirect wholly owned Subsidiary of Parent. The Merger Sub has no outstanding options, warrants, rights, rights or any other agreements pursuant to which any Person other than the Parent may acquire any equity security of the Merger Sub. Except as would not be material to the Parent and its Subsidiaries, taken as a whole, none of the Parent or any of its Subsidiaries has any obligation or has made any commitment to acquire any shares of capital stock or other equity or voting securities or other equity interests in any Person or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Person.
(e) The number of shares of authorized Parent Common Stock that have not been issued, subscribed for, for or otherwise committed to be issued is at least equal to the number of shares of Parent Common Stock to be issued pursuant to the transactions contemplated by this Agreement.
(f) Schedule 5.2(f) accurately sets forth the name, type of entity, and jurisdiction of organization of each Subsidiary of the Parent. Except as set forth on Schedule 5.2(f), all shares of Capital Stock of each Subsidiary (i) are owned, directly or indirectly, by the Parent, free and clear of all Security Interests (other than Permitted Exceptions); (ii) are duly authorized and validly issued; and (iii) were issued in compliance with Applicable Law and any preemptive or similar rights. There are no options, warrants, puts, calls, rights, convertible, or exchangeable securities, “phantom” unit rights, unit appreciation rights, unit-based performance units, commitments, contracts, arrangements, or undertakings of any kind to which any Subsidiary is a party or by which it is bound (i) obligating such Subsidiary to issue, deliver, transfer, or sell, or cause to be issued, delivered, transferred, or sold, additional shares of capital stock of such Subsidiary, or (ii) entitling any Person to any economic benefit based, directly or indirectly, on the value or price of any of the foregoing. No Subsidiary is or at any time has been insolvent within the meaning of Applicable Law.
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Capitalization; Subsidiaries. (a) As of the close date of business on May 16, 2024 (the “Parent Capitalization Date”)this Agreement, the authorized capital stock of the Parent consisted consists of 100,000,000 200,000,000 shares of Parent Common Stock and 10,000,000 shares of preferred stock, $0.001 par value per share, of Parent (“Parent Preferred Stock”). As of January 22, 2014, there were outstanding 25,836,969 shares of Parent Common Stock and zero shares of Parent Preferred Stock, and 26,456,751 Parent Options to purchase an aggregate of 3,391,129 shares of Parent Common Stock and warrants to purchase an aggregate of zero shares of Parent Common Stock (of which were issued options and outstanding. There are no other classes warrants to purchase an aggregate of capital stock 1,662,016 shares and zero shares, respectively, 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 outstandingCommon Stock were exercisable). As of the close date of business on the this Agreement, Parent Capitalization Date, there were outstanding options and warrants relating to 3,450,000 has reserved such number of shares of Parent Common Stock.
(b) Stock for issuance on exercise of Parent Options as set forth in Parent SEC Documents. 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 Option Plans will be, when issued in accordance with the respective terms thereof, duly authorized and validly issued and are, or will be when issued, are fully paid, nonassessable, paid and free of preemptive rightsnon-assessable.
(cb) As of Except as set forth in Section 4.04(a) and for changes since January 22, 2014 resulting from (w) the date of this Agreement, other than (i) issuances of shares exercise of Parent Common Stock pursuant to the exercise or settlement, as applicable, of the Parent equity awards Options and warrants outstanding as of the close of business on the Parent Capitalization Date or under other compensation plans of the Parent in accordance with their termssuch date, (iix) the grant or issuance of equity incentive awards of the Parent since the Parent Capitalization Date in the ordinary course of businessbusiness consistent with past practices, or (iiiy) as the issuance of securities of Parent in connection with the Financing, and (z) the issuance of securities of Parent which do not result in Parent’s fully diluted capitalization exceeding by more than a number of shares equal to one percent (1%) of the Parent’s fully diluted capitalization set forth in Section 5.2(a4.04(a), there are will be at Closing no outstanding (Ai) 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 voting securities of Parent; (ii) securities of Parent convertible into or exchangeable for shares of capital stock or voting securities of Parent; or (iii) options, warrants or other equity interests rights to acquire from Parent, or other obligation of the Parent to issue, any capital stock, voting securities or securities convertible into or exchangeable for such shares or other equity capital stock 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 stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, or commitments, (B) outstanding obligations of the Parent to repurchase, redeem, or otherwise acquire any capital stock or other equity or voting securities or other equity interests of the Parent or any securities representing the right to purchase or otherwise receive any capital stock or other equity or voting securities or other equity interests of the Parent, (C) shareholder agreements, voting trusts, or similar agreements with any Person to which the Parent is a party either (1) restricting the transfer of the capital stock or other equity or voting interests of the Parent or (2) affecting the voting rights of capital stock or other equity or voting securities or other equity interests of the Parent, or (D) outstanding or authorized equity or equity-based compensation awards, including any equity appreciation rights, security-based performance units, “phantom” stock, profit-participation, or other security rights issued by the Parent, or other agreements, arrangements, or commitments of any character (contingent or otherwise) to which the Parent is party, in each case pursuant to which any Person is entitled to receive any payment from the Parent based, in whole or in part, on the value of any capital stock or other equity or voting securities or other equity interests of the Parent.
(dc) All Upon issuance in accordance with, and subject to the terms and conditions of, this Agreement (including, but not limited to, the accuracy of the issued representations and outstanding capital stock of the Merger Sub is, and at Merger Effective Time will be, owned, directly or indirectly, warranties made by the Parent. The Merger Sub has no outstanding options, warrants, rights, or any other agreements Stockholders pursuant to which any Person other than Section 6.10), the Parent may acquire any equity security of the Merger Sub. Except as would not be material to the Parent and its Subsidiaries, taken as a whole, none of the Parent or any of its Subsidiaries has any obligation or has made any commitment to acquire any shares of capital stock or other equity or voting securities or other equity interests in any Person or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Person.
(e) The number of shares of authorized Parent Common Stock that have not been issued, subscribed for, or otherwise committed to be issued is at least equal to the number of shares of Parent Common Stock to be issued pursuant to the transactions contemplated by Article I of this Agreement.
(f) Schedule 5.2(f) accurately sets forth the nameAgreement will be duly authorized, type of entityvalidly issued, fully paid and jurisdiction of organization of each Subsidiary of the Parent. Except as set forth on Schedule 5.2(f), all shares of Capital Stock of each Subsidiary (i) are owned, directly or indirectly, by the Parentnon-assessable, free and clear of all Security Interests Liens (other than Permitted ExceptionsLiens and other than restrictions on transfer under this Agreement and under applicable state and federal securities Laws); (ii) are duly authorized , and, when issued to the Stockholders entitled to receive such shares pursuant to the terms of this Agreement, will be exempt from registration under the Securities Act and validly issued; and (iii) were issued in compliance with Applicable Law and any preemptive or similar rights. There are no options, warrants, puts, calls, rights, convertible, or exchangeable securities, “phantom” unit rights, unit appreciation rights, unit-based performance units, commitments, contracts, arrangements, or undertakings of any kind to which any Subsidiary is a party or by which it is bound (i) obligating such Subsidiary to issue, deliver, transfer, or sell, or cause to be issued, delivered, transferred, or sold, additional shares of capital stock of such Subsidiary, or (ii) entitling any Person to any economic benefit based, directly or indirectly, on the value or price of any of the foregoingExchange Act. No Subsidiary is notice of deregistration or at any time delisting of Parent Common Stock has been insolvent within the meaning of Applicable Lawreceived by Parent and, to Parent’s knowledge, no Actions are pending for that purpose.
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Samples: Merger Agreement (Fluidigm Corp)
Capitalization; Subsidiaries. (a) As of the close date hereof, the capital stock of business on May 16Parent consists of 80,850,000 Parent Ordinary Shares, 2024 out of which 67,375,000 is issued and outstanding (the “Outstanding Parent Capitalization DateShares”). As of the date hereof, Parent has authorized the issuance of an additional 13,475,000 Parent Ordinary Shares (“Additional Parent Ordinary Shares”), the authorized capital stock and upon approval by KOSDAQ, such Additional Parent Ordinary Shares will be issued and outstanding prior to Closing, thus immediately prior to Closing, there will be 80,850,000 issued Parent Ordinary Shares. As of the date hereof, the Outstanding Parent consisted of 100,000,000 Shares are the only 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 issued and outstanding and no Parent Ordinary Shares are held as treasury shares. All the Outstanding Parent Ordinary Shares have been duly and validly issued and are fully paid, and were issued in accordance with the registration or qualification requirements of the Hong Kong Companies Ordinance (as amended) and the Capital Market and Financial Investment Service Act of the Republic of Korea or pursuant to valid exemptions therefrom, in accordance with the Company’s Governing Documents, and have not been issued in violation of any preemptive or similar rights. Schedule 3.04(a) of the Parent Disclosure Letter accurately sets forth the name and ownership amount of the holders of the Outstanding Parent Shares as of the date of this Agreement.
(b) The authorized share capital of the Merger Sub is Fifty Thousand Dollars (US$50,000) divided into 50,000,000 Merger Sub Shares, each with a nominal or par value of US$0.001. As of the execution of this Agreement, only one Merger Sub Share is issued and outstanding. The sole outstanding Merger Sub Share has been duly authorized, validly issued, fully paid and is non-assessable and is not subject to preemptive rights and is held by the Parent.
(c) The Parent Ordinary Shares underlying the Parent ADSs to be issued as Merger Consideration, when issued in accordance with the terms hereof, shall be duly authorized and validly issued, fully paid and issued in compliance with the Hong Kong Companies Ordinance (as amended) and Capital Market and Financial Investment Service Act of the Republic of Korea, all applicable state and U.S. federal securities Laws and not subject to, and not issued in violation of, any Lien, purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of applicable Law, the memorandum and articles of association or any contract to which Parent is a party or otherwise bound. There are no outstanding bonds, debentures, notes, notes or other Indebtedness or securities indebtedness of the Parent having the right to vote (or convertible into into, or exercisable for exchangeable for, securities having the right to vote) on any matters on matter for which holders the Parent’s Shareholders may vote. To the Knowledge of capital stock Parent, other than pursuant to the Lock-Up Agreements dated as of the date of this Agreement, none of the Parent may Ordinary Shares, including those underlying the Parent ADSs to be issued as Merger Consideration, are subject to any proxies, voting agreements, voting trusts or other similar arrangements which affect the rights of holder(s) to vote authorizedsuch securities, issuednor are any shareholder agreements, buy-sell agreements, restricted share purchase agreements, share purchase agreements, warrant purchase agreements, stock issuance agreements, stock option agreements, rights of first refusal or outstandingother similar agreements, in each case, to which Parent is a party, existing as of the date hereof with respect to such securities which in any manner would affect the title of any holder(s) to such securities or the rights of any holder(s) to sell the same free and clear of all Liens.
(d) Schedule 3.04(d) of the Parent Disclosure Letter accurately sets forth the name and place of incorporation or formation of each Subsidiary of Parent as of the date hereof. As of the close of business on the Parent Capitalization Datedate hereof, there were outstanding options and warrants relating to 3,450,000 shares of Parent Common Stock.
(b) All of the each such Subsidiary is directly or indirectly wholly owned by Parent. Each Group Company’s issued and outstanding shares of Parent Common Stock shares, nominal share capital or other equity securities 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 thereofextent applicable, duly authorized and validly issued and are, or will be when issued, are fully paid, nonassessable, paid and free of preemptive rights.
(c) non-assessable. As of the date of this Agreementhereof, other than (i) issuances of shares of Parent Common Stock pursuant to the exercise or settlement, as applicable, of the Parent equity awards ADSs, no Group Company has granted or issued any outstanding as of the close of business on the options, share appreciation rights, phantom stock, warrants, rights or other securities convertible into or exchangeable or exercisable for 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), Ordinary Shares and there are no (A) existing optionsoutstanding stock-based performance units, warrants, calls, preemptive rights, subscriptions, or other securities or rightsprofit participations, restricted stock awards, restricted stock unit awardsunits or other equity-based compensation awards or similar rights with respect to the Parent, options, warrants, rights or other securities convertible securitiesinto or exchangeable or exercisable for Parent Ordinary Shares or other commitments or agreements providing for the issuance of additional shares (or other equity interests), agreements, arrangementsthe sale of treasury shares, or commitments for the repurchase or redemption of Parent Ordinary Shares. There are no agreements requiring any kind obligating the Parent Group Company to issue, transferpurchase, register, redeem or sellotherwise acquire, or cause to be issuedtransfer, transferred, registered, sell or sold, otherwise dispose of any shares of capital stock or other equity or voting securities of any Group Company, including any options, subscriptions, rights, warrants, calls or other equity interests of the Parent similar commitments or agreements relating thereto, or any share appreciation rights or securities convertible into or exchangeable or exercisable for such Parent Ordinary Shares other than Parent ADSs, or any commitments or agreements the value of which is determined by reference to the Parent Ordinary Shares other than the Parent ADSs. Other than pursuant to the Lock-Up Agreements, no shares or other equity or securities of any Group Company, are subject to any proxies, 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 stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, or commitments, (B) outstanding obligations of the Parent to repurchase, redeem, or otherwise acquire any capital stock or other equity or voting securities or other equity interests of the Parent or any securities representing the right to purchase or otherwise receive any capital stock or other equity or voting securities or other equity interests of the Parent, (C) shareholder agreements, voting truststrusts or other similar arrangements which affect the rights of holder(s) to vote such securities, nor are any stockholder agreements, buy-sell agreements, restricted share purchase agreements, equity purchase agreements, warrant purchase agreements, stock issuance agreements, stock option agreements, rights of first refusal or other similar agreements with any Person agreements, in each case, to which the Parent or Merger Sub is a party either (1) restricting the transfer party, existing as of the capital stock date hereof with respect to such securities which in any manner would affect the title of any holder(s) to such securities or other equity or voting interests of the Parent or (2) affecting the voting rights of capital stock or other equity or voting securities or other equity interests of the Parent, or (D) outstanding or authorized equity or equity-based compensation awards, including any equity appreciation rights, security-based performance units, “phantom” stock, profit-participation, or other security rights issued by the Parent, or other agreements, arrangements, or commitments of any character (contingent or otherwiseholder(s) to which sell the Parent is party, in each case pursuant to which any Person is entitled to receive any payment from the Parent based, in whole or in part, on the value same free and clear of any capital stock or other equity or voting securities or other equity interests of the Parent.
(d) All of the issued and outstanding capital stock of the Merger Sub is, and at Merger Effective Time will be, owned, directly or indirectly, by the Parent. The Merger Sub has no outstanding options, warrants, rights, or any other agreements pursuant to which any Person other than the Parent may acquire any equity security of the Merger Sub. Except as would not be material to the Parent and its Subsidiaries, taken as a whole, none of the Parent or any of its Subsidiaries has any obligation or has made any commitment to acquire any shares of capital stock or other equity or voting securities or other equity interests in any Person or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Personall Liens.
(e) The number Merger Sub is a newly incorporated company, formed solely for the purpose of shares of authorized Parent Common Stock that have not been issued, subscribed for, or otherwise committed to be issued is at least equal to the number of shares of Parent Common Stock to be issued pursuant to engaging in the transactions contemplated by this Agreement. Merger Sub has not engaged in any business activities or conducted any operations other than in connection with the transactions contemplated by this Agreement. Merger Sub is a direct wholly owned Subsidiary of Parent. Merger Sub has no Subsidiaries.
(f) Schedule 5.2(f) accurately sets forth Except for the name, type of entityobligations or liabilities incurred in connection with its organization, and jurisdiction of organization of each Subsidiary of the Parent. Except as set forth on Schedule 5.2(f)transactions contemplated by this Agreement, all shares of Capital Stock of each Subsidiary (i) are ownedMerger Sub has not, and shall not have prior to the Effective Time, incurred, directly or indirectlyindirectly through any subsidiary or Affiliate, by any obligations or liabilities or engaged in any business activities of any type or kind whatsoever or entered into any agreements or arrangements with any Person.
(g) Except as provided for in this Agreement, the Parentother Transaction Documents, free and clear or pursuant to the PIPE Investment, as a result of all Security Interests (other than Permitted Exceptions); (ii) are duly authorized and validly issued; and (iii) were issued in compliance with Applicable Law and any preemptive or similar rights. There are the consummation of the Merger, no optionsshares of capital stock, warrants, puts, calls, rights, convertible, options or exchangeable securities, “phantom” unit rights, unit appreciation rights, unit-based performance units, commitments, contracts, arrangements, or undertakings of any kind to which any Subsidiary is a party or by which it is bound (i) obligating such Subsidiary to issue, deliver, transfer, or sell, or cause to be issued, delivered, transferred, or sold, additional shares of capital stock of such Subsidiary, or (ii) entitling any Person to any economic benefit based, directly or indirectly, on the value or price of any other securities of the foregoing. No Subsidiary is Group Companies are issuable and no rights in connection with any shares, warrants, options or at any time has been insolvent within other securities of the meaning of Applicable LawGroup Companies accelerate or otherwise become triggered (whether as to vesting, exercisability, convertibility or otherwise).
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Capitalization; Subsidiaries. (a) As of the close of business on May 16date hereof, 2024 (the “there are 3,533,133.2 Parent Capitalization Date”), the authorized capital stock of the Parent consisted of 100,000,000 shares Class A Common Units of Parent and 453,106 Parent Class B Common Stock, and 26,456,751 of which were Units issued and outstanding. There are no other classes of capital stock of Parent and no bonds, debentures, notes, or other Indebtedness or securities which collectively constitute all 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 issued and outstanding Equity Interests of capital stock of the Parent may vote authorized, issued, or outstandingParent. 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 Equity Interests 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, been duly authorized and are validly issued and are, or will be when issued, fully paidand have not been issued in violation of, nonassessableand, 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) except as set forth in Section 5.2(a)the Existing Parent LLCA, are not subject to, any preemption, subscription or similar rights. Other than as set forth in this Agreement or as set forth in the Existing Parent LLCA and except for the Parent Class B Common Units, there are no (A) existing outstanding or authorized options, profits interests, warrants, callsrestricted units, rights (including any 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, warrantspledges, calls, preemptiveputs, subscriptionsrights to subscribe, conversion or exchange rights or other securities or rights, restricted stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, Contracts or commitments, (B) outstanding obligations of the Parent to repurchase, redeem, or otherwise acquire any capital stock or other equity or voting securities or other equity interests of the Parent or any securities representing the right to purchase or otherwise receive any capital stock or other equity or voting securities or other equity interests of the Parent, (C) shareholder agreements, voting trusts, or similar agreements with any Person in each case to which the Parent is a party either (1) restricting the transfer of the capital stock or other equity or voting interests of the Parent or (2) affecting the voting rights of capital stock or other equity or voting securities or other equity interests of the which are binding upon Parent, providing for the issuance, disposition or (D) acquisition of any of its Equity Interests or any rights or interests exercisable therefor, and there are no outstanding or authorized equity or equity-based compensation awardsappreciation, including any equity appreciation rights, security-based performance units, “phantom” phantom stock, profit-participation, profit participation or other security similar rights issued by with respect to the Equity Interests of Parent, or other agreements, arrangements, or commitments of any character (contingent or otherwise) to which the Parent is party, in each case pursuant to which any Person is entitled to receive any payment from the Parent based, in whole or in part, on the value of any capital stock or other equity or voting securities or other equity interests of the Parent.
(d) . All of the issued and outstanding capital stock Equity Interests of the Merger Sub is, and at Merger Effective Time will be, owned, Parent’s Subsidiaries are directly or indirectly, indirectly owned by the Parent. The Merger Sub has no outstanding options, warrants, rights, or any other agreements pursuant to which any Person other than the Parent may acquire any equity security of the Merger Sub. Except as would not be material to the Parent and its Subsidiaries, taken as a whole, none of the Parent or any of its Subsidiaries has any obligation or has made any commitment to acquire any shares of capital stock or other equity or voting securities or other equity interests in any Person or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Person.
(e) The number of shares of authorized Parent Common Stock that have not been issued, subscribed for, or otherwise committed to be issued is at least equal to the number of shares of Parent Common Stock to be issued pursuant to the transactions contemplated by this Agreement.
(f) Schedule 5.2(f) accurately sets forth the name, type of entity, and jurisdiction of organization of each Subsidiary of the Parent. Except as set forth on Schedule 5.2(f), all shares of Capital Stock of each Subsidiary (i) are owned, directly or indirectly, by the Parent, free and clear of all Security Interests Liens (other than Permitted Exceptions); (ii) are duly authorized immaterial Liens and validly issued; and (iii) were issued in compliance with Applicable Law and any preemptive or similar rights. There are no optionsLiens arising under the Existing Parent LLCA, warrants, puts, calls, rights, convertible, or exchangeable securities, “phantom” unit rights, unit appreciation rights, unit-based performance units, commitments, contracts, arrangements, or undertakings of any kind to which any Subsidiary is a party or by which it is bound (i) obligating such Subsidiary to issue, deliver, transfer, or sell, or cause to be issued, delivered, transferred, or sold, additional shares of capital stock the Organizational Documents of such SubsidiarySubsidiaries or any applicable credit agreements or other debt financing documents).
(b) The Exchanged Units, or (ii) entitling when issued to New Remedy Corp at the Closing, will be free and clear of all Liens, other than any Person to any economic benefit based, directly or indirectly, on Liens arising under the value or price of any of the foregoing. No Subsidiary is or at any time has been insolvent within the meaning of Applicable LawA&R Parent LLCA.
Appears in 1 contract
Capitalization; Subsidiaries. (a) As of the close of business on May 16, 2024 (the “Parent Capitalization Date”), the The authorized capital stock of the Parent consisted NACO consists of 100,000,000 2,000,000 shares of Parent NACO 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 outstanding400,000 shares have been designated as Class A Common Stock. As of the close of business on the Parent Capitalization DateSeptember 15, there were outstanding options and warrants relating to 3,450,000 1998, 1,024,106 shares of Parent NACO Common Stock.
(b) Stock were outstanding, 1,035 shares of NACO Common Stock were held in NACO's treasury and no shares of NACO's Class A Common Stock were issued or outstanding or held in NACO's treasury. All of the issued and outstanding shares of Parent NACO 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, been duly authorized and validly issued and are, or will be when issued, are fully paid, nonassessable, nonassessable and free of preemptive rights, with no personal liability attaching to the ownership thereof arising from NACO. All prior sales of NACO's securities have been made in compliance with or under an exemption from the registration requirements of the Securities Act of 1933, as amended (the "Securities Act"), and applicable state securities laws, and no shareholders of --------------- NACO have any rescission rights with respect to any NACO Common Stock or other NACO securities.
(cb) As An aggregate of the date of this Agreement, other than (i) issuances of 49,377 shares of Parent NACO Common Stock are reserved and authorized for issuance 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) NACO's Omnibus Stock Option Plan. Except as set forth in Section 5.2(a)3.3(b) of the Disclosure Schedule, there are no (A) existing NACO does not have and is not bound by any outstanding subscriptions, options, warrants, calls, preemptive rights, subscriptions, commitments or other securities or rights, restricted stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, or commitments agreements of any kind obligating the Parent character to or by which NACO is a party or is bound which, directly or indirectly, obligate NACO to issue, transferdeliver, 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 stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, or commitments, (B) outstanding obligations of the Parent to repurchase, redeem, repurchase or otherwise acquire any capital stock shares of NACO Common Stock or any other equity or voting securities or other equity interests security of the Parent NACO or any securities representing the right to purchase or otherwise receive any capital stock shares of NACO Common Stock or any other equity or voting securities or other equity interests security of the Parent, (C) shareholder agreements, voting trusts, or similar agreements with any Person to which the Parent is a party either (1) restricting the transfer of the capital stock or other equity or voting interests of the Parent or (2) affecting the voting rights of capital stock or other equity or voting securities or other equity interests of the Parent, or (D) outstanding or authorized equity or equity-based compensation awards, including any equity appreciation rights, security-based performance units, “phantom” stock, profit-participation, or other security rights issued by the Parent, or other agreements, arrangements, or commitments of any character (contingent or otherwise) to which the Parent is party, in each case pursuant to which any Person is entitled to receive any payment from the Parent based, in whole or in part, on the value of any capital stock or other equity or voting securities or other equity interests of the ParentNACO.
(dc) All Section 3.3(c)(i) of the issued Disclosure Schedule sets forth a true and outstanding capital stock correct list of the Merger Sub is, and at Merger Effective Time will be, ownedall of NACO's Subsidiaries. NACO owns, directly or indirectly, all of the outstanding capital stock of each of its Subsidiaries. Each share of each Subsidiary owned directly or indirectly by NACO is duly authorized and validly issued and is fully paid, nonassessable and free of preemptive rights, and, except as set forth in Section 3.3(c)(ii) of the ParentDisclosure Schedule, each share is free and clear of all mortgages, liens, security interests, charges, easements, leases, subleases, covenants, rights of way, options, claims, restrictions or encumbrances of any kind (collectively "Liens"), and all rights ----- of first refusal and limitations on NACO's voting rights. The Merger Sub None of NACO's Subsidiaries has no or is bound by any outstanding subscriptions, options, warrants, rightscalls, commitments or agreements of any character calling for the sale or issuance by such Subsidiary or by NACO or any other agreements pursuant to which any Person other than the Parent may acquire any equity security Subsidiary of the Merger Sub. Except as would not be material to the Parent and its SubsidiariesNACO, taken as a whole, none of the Parent or any of its Subsidiaries has any obligation or has made any commitment to acquire any shares of capital stock or any other equity security of such Subsidiary or voting any securities or other equity interests in any Person or representing the right to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Person.
(e) The number of shares of authorized Parent Common Stock that have not been issued, subscribed for, purchase or otherwise committed to be issued is at least equal to the number of shares of Parent Common Stock to be issued pursuant to the transactions contemplated by this Agreement.
(f) Schedule 5.2(f) accurately sets forth the name, type of entity, and jurisdiction of organization of each Subsidiary of the Parent. Except as set forth on Schedule 5.2(f), all shares of Capital Stock of each Subsidiary (i) are owned, directly or indirectly, by the Parent, free and clear of all Security Interests (other than Permitted Exceptions); (ii) are duly authorized and validly issued; and (iii) were issued in compliance with Applicable Law and receive any preemptive or similar rights. There are no options, warrants, puts, calls, rights, convertible, or exchangeable securities, “phantom” unit rights, unit appreciation rights, unit-based performance units, commitments, contracts, arrangements, or undertakings of any kind to which any Subsidiary is a party or by which it is bound (i) obligating such Subsidiary to issue, deliver, transfer, or sell, or cause to be issued, delivered, transferred, or sold, additional shares of capital stock or any other equity security of such Subsidiary, or (ii) entitling any Person to any economic benefit based, directly or indirectly, on the value or price of any of the foregoing. No Subsidiary is or at any time has been insolvent within the meaning of Applicable Law.
Appears in 1 contract
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 (i) 1,000,000,000 shares of Parent Common Stock, and 26,456,751 143,777,488 of which were issued and outstanding and 13,587,492 of which were held by Parent as treasury stock, and (ii) 25,000,000 shares of preferred stock of Parent, without par value, no shares of which were outstanding. There are no other classes of capital stock of Parent and no bonds, debentures, notes, 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, issued or outstanding. As of the close of business on the Parent Capitalization Date, there were (A) outstanding options to purchase 3,893,821 shares of Parent Common Stock and warrants relating (B) outstanding Parent Equity Awards (other than options to 3,450,000 purchase Parent Common Stock) representing 756,217 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 Awards, the Parent 2015 Long-Term Incentives Plan or the Parent Employee Stock 35 Purchase Plan will be, when issued in accordance with the respective terms thereof, duly authorized and validly issued and issued, and, along with the shares of Parent Common Stock issuable pursuant to this Agreement (subject to obtaining the Parent Stockholder Approval), are, or will be when issued, fully paid, nonassessable, nonassessable and free of preemptive rights. All of the outstanding Parent Common Stock has been sold pursuant to an effective registration statement filed under the federal securities Laws or an appropriate exemption therefrom.
(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(a4.2(a), there are no (Ai) existing options, warrants, calls, preemptive rights, subscriptions, subscriptions or other securities or rights, restricted stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, arrangements or commitments of any kind obligating the Parent to issue, transfer, register, register or sell, or cause to be issued, transferred, registered, 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 interestsshares, or obligating the Parent to grant, extend, extend or enter into such options, warrants, calls, preemptive, subscriptions, subscriptions or other securities or rights, restricted stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, arrangements or commitments, (Bii) outstanding obligations of the Parent to repurchase, redeem, redeem or otherwise acquire any capital stock or other equity or voting securities or other equity interests of the Parent or any securities representing the right to purchase or otherwise receive any capital stock or other equity or voting securities or other equity interests of the Parent, (Ciii) shareholder stockholder agreements, voting trusts, trusts or similar agreements with any Person to which the Parent is a party either (1A) restricting the transfer of the capital stock or other equity or voting interests of the Parent or (2B) affecting the voting rights of capital stock or other equity or voting securities or other equity interests of the Parent, Parent or (Div) outstanding or authorized equity or equity-based compensation awards, including any equity appreciation rights, security-based performance units, “phantom” stock, profit-participation, participation or other security rights issued by the Parent, or other agreements, arrangements, arrangements or commitments of any character (contingent or otherwise) to which the Parent is party, in each case pursuant to which any Person is entitled to receive any payment from the Parent based, based in whole or in part, part on the value of any capital stock or other equity or voting securities or other equity interests of the Parent.
(d) All of the issued and outstanding capital stock of the Merger Sub is, and at Merger the Effective Time will be, owned, directly owned by Parent or indirectly, by the a direct or indirect wholly owned Subsidiary of Parent. The Merger Sub has no outstanding options, warrants, rights, rights or any other agreements pursuant to which any Person other than the Parent may acquire any equity security of the Merger Sub. Except as would not be material to the Parent and its Subsidiaries, taken as a whole, none of the Parent or any of its Subsidiaries has any obligation or has made any commitment to acquire any shares of capital stock or other equity or voting securities or other equity interests in any Person or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Person.
(e) The number of shares of authorized Parent Common Stock that have not been issued, subscribed for, for or otherwise committed to be issued is at least equal to the number of shares of Parent Common Stock to be issued pursuant to the transactions contemplated by this Agreement.
(f) Schedule 5.2(f) accurately sets forth the name, type of entity, and jurisdiction of organization of each Subsidiary of the Parent. Except as set forth on Schedule 5.2(f), all shares of Capital Stock of each Subsidiary (i) are owned, directly or indirectly, by the Parent, free and clear of all Security Interests (other than Permitted Exceptions); (ii) are duly authorized and validly issued; and (iii) were issued in compliance with Applicable Law and any preemptive or similar rights. There are no options, warrants, puts, calls, rights, convertible, or exchangeable securities, “phantom” unit rights, unit appreciation rights, unit-based performance units, commitments, contracts, arrangements, or undertakings of any kind to which any Subsidiary is a party or by which it is bound (i) obligating such Subsidiary to issue, deliver, transfer, or sell, or cause to be issued, delivered, transferred, or sold, additional shares of capital stock of such Subsidiary, or (ii) entitling any Person to any economic benefit based, directly or indirectly, on the value or price of any of the foregoing. No Subsidiary is or at any time has been insolvent within the meaning of Applicable Law.
Appears in 1 contract
Samples: Merger Agreement
Capitalization; Subsidiaries. (a) As of the close date hereof and without taking into effect the PIPE Investment, (i) the total number of business on May 16, 2024 shares of Parent in issue is 131,392,242 Parent Ordinary Shares (the “Outstanding Parent Capitalization DateShares”), the authorized capital stock (ii) 815,546 Parent Options are issued and outstanding as of the date hereof (the “Outstanding Parent consisted Options”) and (iii) 21,925,960 Parent Warrants are issued and outstanding as of 100,000,000 shares the date hereof (the “Outstanding Parent Warrants” and together with the Outstanding Parent Shares and the Outstanding Parent Options, the “Parent Equity Securities”). As of the date hereof, no Parent Common StockOrdinary Shares are held as treasury shares. All the outstanding Parent Equity Securities have been duly and validly issued and are fully paid and non-assessable, and 26,456,751 of which were issued in accordance with the registration or qualification requirements of the Securities Act, the UK Companies Axx 0000 (as amended) and outstandingthe UK Financial Services and Markets Act 2000 (as amended) or pursuant to valid exemptions therefrom.
(b) The Parent Ordinary Shares underlying the Parent ADSs to be issued as Merger Consideration, when issued in accordance with the terms hereof, shall be duly authorized and validly issued, fully paid and nonassessable and issued in compliance with the UK Companies Axx 0000 (as amended) and the UK Financial Services and Markets Axx 0000 (as amended), all applicable state and federal securities Laws and not subject to, and not issued in violation of, any Lien, purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of applicable Law, the memorandum and articles of association or any contract to which Parent is a party or otherwise bound. There are no other classes of capital stock of Parent and no outstanding bonds, debentures, notes, notes or other Indebtedness or securities indebtedness of the Parent having the right to vote (or convertible into into, or exercisable for exchangeable for, securities having the right to vote) on any matters on matter for which holders the Parent’s Shareholders may vote. To the Knowledge of capital stock Parent, none of the Parent may Ordinary Shares, including those underlying the Parent ADSs to be issued as Merger Consideration, are subject to any proxies, voting agreements, voting trusts or other similar arrangements which affect the rights of holder(s) to vote authorizedsuch securities, issuednor are any shareholder agreements, buy-sell agreements, restricted share purchase agreements, share purchase agreements, warrant purchase agreements, stock issuance agreements, stock option agreements, rights of first refusal or outstandingother similar agreements, in each case, to which Parent is a party, existing as of the date hereof with respect to such securities which in any manner would affect the title of any holder(s) to such securities or the rights of any holder(s) to sell the same free and clear of all Liens.
(c) Schedule 3.04 of the Parent Disclosure Letter accurately sets forth the name and place of incorporation or formation of each Subsidiary of Parent as of the date hereof. As of the close of business on the Parent Capitalization Datedate hereof, there were outstanding options and warrants relating to 3,450,000 shares of Parent Common Stock.
(b) All of the each such Subsidiary is directly or indirectly wholly owned by Parent. Each Group Company’s issued and outstanding shares of Parent Common Stock shares, nominal share capital or other equity securities 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 thereofextent applicable, duly authorized and validly issued and are, or will be when issued, are fully paid, nonassessable, paid and free of preemptive rights.
(c) non-assessable. As of the date of this Agreementhereof, other than (i) issuances of shares of Parent Common Stock pursuant to the exercise or settlementeach Group Company has not granted any outstanding options, 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 optionsshare appreciation rights, warrants, callsrights or other securities convertible into or exchangeable or exercisable for Parent Ordinary Shares other than the Parent ADSs. There are no agreements requiring any Group Company to issue, preemptive rightspurchase, redeem or otherwise acquire, or transfer, sell or otherwise dispose of any shares or other securities of any Group Company, including any options, subscriptions, rights, warrants, calls or other securities similar commitments or rights, restricted stock awards, restricted stock unit awards, convertible securities, agreements, arrangementsagreements relating thereto, 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 share appreciation rights or securities convertible into or exchangeable or exercisable for such Parent Ordinary Shares other than Parent ADSs, or any commitments or agreements the value of which is determined by reference to the Parent Ordinary Shares other than the Parent ADSs. To the Knowledge of Parent, no shares or other equity or securities of any Group Company, are subject to any proxies, 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 stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, or commitments, (B) outstanding obligations of the Parent to repurchase, redeem, or otherwise acquire any capital stock or other equity or voting securities or other equity interests of the Parent or any securities representing the right to purchase or otherwise receive any capital stock or other equity or voting securities or other equity interests of the Parent, (C) shareholder agreements, voting truststrusts or other similar arrangements which affect the rights of holder(s) to vote such securities, nor are any stockholder agreements, buy-sell agreements, restricted share purchase agreements, equity purchase agreements, warrant purchase agreements, stock issuance agreements, stock option agreements, rights of first refusal or other similar agreements with any Person agreements, in each case, to which the Parent or Merger Sub is a party either (1) restricting the transfer party, existing as of the capital stock date hereof with respect to such securities which in any manner would affect the title of any holder(s) to such securities or other equity or voting interests of the Parent or (2) affecting the voting rights of capital stock or other equity or voting securities or other equity interests of the Parent, or (D) outstanding or authorized equity or equity-based compensation awards, including any equity appreciation rights, security-based performance units, “phantom” stock, profit-participation, or other security rights issued by the Parent, or other agreements, arrangements, or commitments of any character (contingent or otherwiseholder(s) to which sell the Parent is party, in each case pursuant to which any Person is entitled to receive any payment from the Parent based, in whole or in part, on the value same free and clear of any capital stock or other equity or voting securities or other equity interests of the Parentall Liens.
(d) All of the issued and outstanding capital stock of the Merger Sub isis a newly incorporated company, and at Merger Effective Time will be, owned, directly or indirectly, by formed solely for the Parent. The Merger Sub has no outstanding options, warrants, rights, or any other agreements pursuant to which any Person other than the Parent may acquire any equity security purpose of the Merger Sub. Except as would not be material to the Parent and its Subsidiaries, taken as a whole, none of the Parent or any of its Subsidiaries has any obligation or has made any commitment to acquire any shares of capital stock or other equity or voting securities or other equity interests engaging in any Person or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Person.
(e) The number of shares of authorized Parent Common Stock that have not been issued, subscribed for, or otherwise committed to be issued is at least equal to the number of shares of Parent Common Stock to be issued pursuant to the transactions contemplated by this Agreement. Merger Sub has not engaged in any business activities or conducted any operations other than in connection with the transactions contemplated by this Agreement. Merger Sub is a direct wholly-owned Subsidiary of Parent. Merger Sub has no Subsidiaries.
(fe) Schedule 5.2(f) accurately sets forth Except for the name, type of entityobligations or liabilities incurred in connection with its organization, and jurisdiction of organization of each Subsidiary of the Parent. Except as set forth on Schedule 5.2(f)transactions contemplated by this Agreement, all shares of Capital Stock of each Subsidiary (i) are ownedMerger Sub has not, and will not have prior to the Effective Time, incurred, directly or indirectlyindirectly through any subsidiary or Affiliate, by the Parent, free and clear of all Security Interests (other than Permitted Exceptions); (ii) are duly authorized and validly issued; and (iii) were issued any obligations or liabilities or engaged in compliance with Applicable Law and any preemptive or similar rights. There are no options, warrants, puts, calls, rights, convertible, or exchangeable securities, “phantom” unit rights, unit appreciation rights, unit-based performance units, commitments, contracts, arrangements, or undertakings business activities of any type or kind to which whatsoever or entered into any Subsidiary is a party agreements or by which it is bound (i) obligating such Subsidiary to issue, deliver, transfer, or sell, or cause to be issued, delivered, transferred, or sold, additional shares of capital stock of such Subsidiary, or (ii) entitling arrangements with any Person to any economic benefit based, directly or indirectly, on the value or price of any of the foregoing. No Subsidiary is or at any time has been insolvent within the meaning of Applicable LawPerson.
Appears in 1 contract
Capitalization; Subsidiaries. (a) As of the close date hereof and without taking into effect the PIPE Investment, (i) the total number of business on May 16, 2024 shares of Parent in issue is 131,392,242 Parent Ordinary Shares (the “Outstanding Parent Capitalization DateShares”), the authorized capital stock (ii) 815,546 Parent Options are issued and outstanding as of the date hereof (the “Outstanding Parent consisted Options”) and (iii) 21,925,960 Parent Warrants are issued and outstanding as of 100,000,000 shares the date hereof (the “Outstanding Parent Warrants” and together with the Outstanding Parent Shares and the Outstanding Parent Options, the “Parent Equity Securities”). As of the date hereof, no Parent Common StockOrdinary Shares are held as treasury shares. All the outstanding Parent Equity Securities have been duly and validly issued and are fully paid and non-assessable, and 26,456,751 of which were issued in accordance with the registration or qualification requirements of the Securities Act, the UK Companies Xxx 0000 (as amended) and outstandingthe UK Financial Services and Markets Act 2000 (as amended) or pursuant to valid exemptions therefrom.
(b) The Parent Ordinary Shares underlying the Parent ADSs to be issued as Merger Consideration, when issued in accordance with the terms hereof, shall be duly authorized and validly issued, fully paid and nonassessable and issued in compliance with the UK Companies Xxx 0000 (as amended) and the UK Financial Services and Markets Xxx 0000 (as amended), all applicable state and federal securities Laws and not subject to, and not issued in violation of, any Lien, purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of applicable Law, the memorandum and articles of association or any contract to which Parent is a party or otherwise bound. There are no other classes of capital stock of Parent and no outstanding bonds, debentures, notes, notes or other Indebtedness or securities indebtedness of the Parent having the right to vote (or convertible into into, or exercisable for exchangeable for, securities having the right to vote) on any matters on matter for which holders the Parent’s Shareholders may vote. To the Knowledge of capital stock Parent, none of the Parent may Ordinary Shares, including those underlying the Parent ADSs to be issued as Merger Consideration, are subject to any proxies, voting agreements, voting trusts or other similar arrangements which affect the rights of holder(s) to vote authorizedsuch securities, issuednor are any shareholder agreements, buy-sell agreements, restricted share purchase agreements, share purchase agreements, warrant purchase agreements, stock issuance agreements, stock option agreements, rights of first refusal or outstandingother similar agreements, in each case, to which Parent is a party, existing as of the date hereof with respect to such securities which in any manner would affect the title of any holder(s) to such securities or the rights of any holder(s) to sell the same free and clear of all Liens.
(c) Schedule 3.04 of the Parent Disclosure Letter accurately sets forth the name and place of incorporation or formation of each Subsidiary of Parent as of the date hereof. As of the close of business on the Parent Capitalization Datedate hereof, there were outstanding options and warrants relating to 3,450,000 shares of Parent Common Stock.
(b) All of the each such Subsidiary is directly or indirectly wholly owned by Parent. Each Group Company’s issued and outstanding shares of Parent Common Stock shares, nominal share capital or other equity securities 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 thereofextent applicable, duly authorized and validly issued and are, or will be when issued, are fully paid, nonassessable, paid and free of preemptive rights.
(c) non-assessable. As of the date of this Agreementhereof, other than (i) issuances of shares of Parent Common Stock pursuant to the exercise or settlementeach Group Company has not granted any outstanding options, 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 optionsshare appreciation rights, warrants, callsrights or other securities convertible into or exchangeable or exercisable for Parent Ordinary Shares other than the Parent ADSs. There are no agreements requiring any Group Company to issue, preemptive rightspurchase, redeem or otherwise acquire, or transfer, sell or otherwise dispose of any shares or other securities of any Group Company, including any options, subscriptions, rights, warrants, calls or other securities similar commitments or rights, restricted stock awards, restricted stock unit awards, convertible securities, agreements, arrangementsagreements relating thereto, 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 share appreciation rights or securities convertible into or exchangeable or exercisable for such Parent Ordinary Shares other than Parent ADSs, or any commitments or agreements the value of which is determined by reference to the Parent Ordinary Shares other than the Parent ADSs. To the Knowledge of Parent, no shares or other equity or securities of any Group Company, are TABLE OF CONTENTS subject to any proxies, 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 stock awards, restricted stock unit awards, convertible securities, agreements, arrangements, or commitments, (B) outstanding obligations of the Parent to repurchase, redeem, or otherwise acquire any capital stock or other equity or voting securities or other equity interests of the Parent or any securities representing the right to purchase or otherwise receive any capital stock or other equity or voting securities or other equity interests of the Parent, (C) shareholder agreements, voting truststrusts or other similar arrangements which affect the rights of holder(s) to vote such securities, nor are any stockholder agreements, buy-sell agreements, restricted share purchase agreements, equity purchase agreements, warrant purchase agreements, stock issuance agreements, stock option agreements, rights of first refusal or other similar agreements with any Person agreements, in each case, to which the Parent or Merger Sub is a party either (1) restricting the transfer party, existing as of the capital stock date hereof with respect to such securities which in any manner would affect the title of any holder(s) to such securities or other equity or voting interests of the Parent or (2) affecting the voting rights of capital stock or other equity or voting securities or other equity interests of the Parent, or (D) outstanding or authorized equity or equity-based compensation awards, including any equity appreciation rights, security-based performance units, “phantom” stock, profit-participation, or other security rights issued by the Parent, or other agreements, arrangements, or commitments of any character (contingent or otherwiseholder(s) to which sell the Parent is party, in each case pursuant to which any Person is entitled to receive any payment from the Parent based, in whole or in part, on the value same free and clear of any capital stock or other equity or voting securities or other equity interests of the Parentall Liens.
(d) All of the issued and outstanding capital stock of the Merger Sub isis a newly incorporated company, and at Merger Effective Time will be, owned, directly or indirectly, by formed solely for the Parent. The Merger Sub has no outstanding options, warrants, rights, or any other agreements pursuant to which any Person other than the Parent may acquire any equity security purpose of the Merger Sub. Except as would not be material to the Parent and its Subsidiaries, taken as a whole, none of the Parent or any of its Subsidiaries has any obligation or has made any commitment to acquire any shares of capital stock or other equity or voting securities or other equity interests engaging in any Person or to provide funds to or make any investment (in the form of a loan, capital contribution or otherwise) in any Person.
(e) The number of shares of authorized Parent Common Stock that have not been issued, subscribed for, or otherwise committed to be issued is at least equal to the number of shares of Parent Common Stock to be issued pursuant to the transactions contemplated by this Agreement. Merger Sub has not engaged in any business activities or conducted any operations other than in connection with the transactions contemplated by this Agreement. Merger Sub is a direct wholly-owned Subsidiary of Parent. Merger Sub has no Subsidiaries.
(fe) Schedule 5.2(f) accurately sets forth Except for the name, type of entityobligations or liabilities incurred in connection with its organization, and jurisdiction of organization of each Subsidiary of the Parent. Except as set forth on Schedule 5.2(f)transactions contemplated by this Agreement, all shares of Capital Stock of each Subsidiary (i) are ownedMerger Sub has not, and will not have prior to the Effective Time, incurred, directly or indirectlyindirectly through any subsidiary or Affiliate, by the Parent, free and clear of all Security Interests (other than Permitted Exceptions); (ii) are duly authorized and validly issued; and (iii) were issued any obligations or liabilities or engaged in compliance with Applicable Law and any preemptive or similar rights. There are no options, warrants, puts, calls, rights, convertible, or exchangeable securities, “phantom” unit rights, unit appreciation rights, unit-based performance units, commitments, contracts, arrangements, or undertakings business activities of any type or kind to which whatsoever or entered into any Subsidiary is a party agreements or by which it is bound (i) obligating such Subsidiary to issue, deliver, transfer, or sell, or cause to be issued, delivered, transferred, or sold, additional shares of capital stock of such Subsidiary, or (ii) entitling arrangements with any Person to any economic benefit based, directly or indirectly, on the value or price of any of the foregoing. No Subsidiary is or at any time has been insolvent within the meaning of Applicable LawPerson.
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