Company Capital Structure. (a) Immediately prior to Closing, the authorized capital stock of the Company will consist of 100,000,000 shares of authorized Common Stock, $.001 par value, of which 11,773,997 shares are issued and outstanding as of December 31, 1998 and of which 10,000,000 are designated Class B Common, none of which are outstanding, and 50,000,000 shares of Preferred Stock, $.001 par value, of which 750,000 shares are designated Series A Preferred Stock, all of which are outstanding, 17,100,003 shares are designated Series B Preferred, all of which are outstanding, 11,149,287 shares are designated Series C Preferred, 396,159 of which are outstanding, 6,000,000 shares are designated Series C-1 Preferred, 2,701,049 of which are outstanding, 5,000,000 shares are designated Series D Preferred, none of which are outstanding and 5,000,000 shares are designated Series D-1 Preferred, 2,083,334 of which are outstanding (collectively, the "Company Capital Stock"). Except as provided in the Stockholders Rights Agreement, all outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable, are not subject to preemptive rights created by statute, the Certificate of Incorporation or Bylaws of the Company or any agreement to which the Company is a party or by which it is bound and have been issued in compliance with federal and state securities laws. The Company has no other capital stock authorized, issued or outstanding. (b) Except for the Company's 1997 Stock Option Plan (the "Option Plan") and the 1998 Employee Stock Purchase Plan (the "Purchase Plan"), the Company has never adopted or maintained any stock option plan or other plan providing for equity compensation of any person. The Company has reserved 15,520,342 shares of Company Common Stock for issuance to employees, directors and consultants pursuant to the Option Plan, 12,249,907 of which are subject to outstanding options under the Option Plan as of December 31, 1998 and has reserved 1,000,000 shares for the Purchase Plan, none of which are issued and outstanding. The Company has issued warrants to purchase 6,988,764 shares of Common Stock, all of which are outstanding. The Company has reserved 6,988,764 shares of Company Common Stock for issuance upon the exercise of such warrants. Except as described in this Section 2.4(b), there are no options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which the Company is a party or by which it is bound obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital stock of the Company.
Appears in 2 contracts
Samples: Series D 1 Preferred Stock Purchase Agreement (Covad Communications Group Inc), Series C 1 Preferred Stock Purchase Agreement (Covad Communications Group Inc)
Company Capital Structure. (a) Immediately prior to Closing, the authorized capital stock of the Company will consist of 100,000,000 shares of authorized Common Stock, $.001 par value, of which 11,773,997 11,722,116 shares are issued and outstanding as of December 3116, 1998 and of which 10,000,000 are designated Class B Common, none of which are outstanding, and 50,000,000 shares of Preferred Stock, $.001 par value, of which 750,000 shares are designated Series A Preferred Stock, all of which are outstanding, 17,100,003 shares are designated Series B Preferred, all of which are outstanding, 11,149,287 shares are designated Series C Preferred, 396,159 of which are outstanding, 6,000,000 shares are designated Series C-1 Preferred, 2,701,049 none of which are outstanding, 5,000,000 shares are designated Series D Preferred, none of which are outstanding and 5,000,000 shares are designated Series D-1 Preferred, 2,083,334 none of which are outstanding (collectively, the "Company Capital StockCOMPANY CAPITAL STOCK"). Except as provided in the Stockholders Rights Agreement, all outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable, are not subject to preemptive rights created by statute, the Certificate of Incorporation or Bylaws of the Company or any agreement to which the Company is a party or by which it is bound and have been issued in compliance with federal and state securities laws. The Company has no other capital stock authorized, issued or outstanding.
(b) Except for the Company's 1997 Stock Option Plan (the "Option PlanOPTION PLAN") and the 1998 Employee Stock Purchase Plan (the "Purchase Plan"), the Company has never adopted or maintained any stock option plan or other plan providing for equity compensation of any person. The Company has reserved 15,520,342 shares of Company Common Stock for issuance to employees, directors and consultants pursuant to the Option Plan, 12,249,907 12,358,723 of which are subject to outstanding options under the Option Plan as of December 3116, 1998 and has reserved 1,000,000 shares for the Purchase Plan, none of which are issued and outstanding. The Company has issued warrants to purchase 6,988,764 shares of Common Stock, all of which are outstanding. The Company has reserved 6,988,764 shares of Company Common Stock for issuance upon the exercise of such warrants. Except as described in this Section 2.4(b), there are no options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which the Company is a party or by which it is bound obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital stock of the Company.
Appears in 2 contracts
Samples: Series D 1 Preferred Stock Purchase Agreement (Covad Communications Group Inc), Series D 1 Preferred Stock Purchase Agreement (Covad Communications Group Inc)
Company Capital Structure. (a) Immediately prior to Closing, the The authorized capital stock of the Company will consist consists of 100,000,000 (i) 150,000,000 shares of authorized Company Common Stock, $.001 par value, (A) 63,115,720 shares of which 11,773,997 shares are issued and outstanding as of December 31, 1998 the date of this Agreement and of which 10,000,000 are designated Class B Common, none (B) 567,716 shares of which are outstandingheld in treasury as of the date of this Agreement, and (ii) 50,000,000 shares of Preferred Stockpreferred stock of the Company, par value $.001 par value0.01 per share, (A) 23,125,000 shares of which 750,000 shares are designated Company Series A Preferred Stock, all Stock and (B) 23,102,285 shares of which such preferred stock designated as Company Series A Preferred Stock are outstanding, 17,100,003 shares are designated issued and outstanding as of the date of this Agreement. Each outstanding share of Company Series B Preferred, all A Preferred Stock is convertible into one share of which are outstanding, 11,149,287 shares are designated Series C Preferred, 396,159 Company Common Stock as of which are outstanding, 6,000,000 shares are designated Series C-1 Preferred, 2,701,049 the date of which are outstanding, 5,000,000 shares are designated Series D Preferred, none of which are outstanding and 5,000,000 shares are designated Series D-1 Preferred, 2,083,334 of which are outstanding (collectively, the "Company Capital Stock")this Agreement. Except as provided in the Stockholders Rights Agreement, all All outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable, are nonassessable and not subject to preemptive rights created by statute, the Certificate of Incorporation or Bylaws of the Company Charter Documents, or any agreement Contract to which the Company is a party or by which it is bound bound, and have been issued in compliance compliance, in all material respects, with federal and state applicable securities laws. The Company has no other capital stock authorized, issued or outstandingLaws.
(b) Except for the Company's 1997 Stock Option Plan (the "Option Plan") and the 1998 Employee Stock Purchase Plan (the "Purchase Plan")Company Equity Plans, neither the Company has never adopted or maintained nor any of its Subsidiaries maintains any stock option plan or other plan providing for equity compensation of any personPerson. The Company has reserved 15,520,342 As of the date of this Agreement, (i) (A) 11,245,885 shares of Company Common Stock for issuance to employeesare issuable upon the exercise of outstanding, directors and consultants pursuant to the Option Plan, 12,249,907 of which are subject to outstanding options unexercised Company Options granted under the Option 2013 Stock Incentive Plan as of December 31, 1998 and has reserved 1,000,000 shares for the Purchase Plan, none of which are issued and outstanding. The Company has issued warrants to purchase 6,988,764 shares of Common Stock, all of which are outstanding. The Company has reserved 6,988,764 (B) 1,243,847 shares of Company Common Stock are available for issuance future grants under the 2013 Stock Incentive Plan, (ii) (A) 1,525,592 shares of Company Common Stock are issuable upon the exercise of outstanding, unexercised Company Options granted under the TradeCard 1999 Stock Option Plan and (B) no shares of Company Common Stock are available for future grants under the TradeCard 1999 Stock Option Plan, (iii) (A) 1,610,775 shares of Company Common Stock are issuable upon the exercise of outstanding, unexercised Company Options granted under the TradeCard 2010 Equity Incentive Plan and (B) no shares of Company Common Stock are available for future grants under the TradeCard 2010 Equity Incentive Plan, (iv) (A) 819,655 shares of Company Common Stock are issuable upon the exercise of outstanding, unexercised Company Options granted under the GTNX 1999 Stock Plan and (B) no shares of Company Common Stock are available for future grants under the GTNX 1999 Stock Plan, and (v) (A) 2,283,734 shares of Company Common Stock are issuable upon the exercise of outstanding, unexercised Company Options granted under the GTNX 2010 Equity Incentive Plan and (B) no shares of Company Common Stock are available for future grants under the GTNX 2010 Equity Incentive Plan. All such Company Options have been issued in compliance, in all material respects, with all of the terms and conditions of the applicable Company Equity Plan and all applicable securities Laws.
(c) Section 2.2(c) of the Disclosure Schedule lists, as of the date of this Agreement, with respect to each Company Option that is outstanding: (i) the name of the holder of such Company Option; (ii) the number of shares of Company Common Stock issuable upon the exercise of such warrantsCompany Option; (iii) the grant date of such Company Option; (iv) the vesting schedule for each such Company Option that is unvested as of the date hereof and the vesting commencement date for each such Company Option; (v) the number of vested and unvested shares of Company Common Stock issuable upon the exercise of such Company Option; (vi) the expiration date of such Company Option; (vii) the exercise price per share of Company Common Stock purchasable under such Company Option; and (viii) whether such Company Option is intended to qualify as an “incentive stock option” as defined in Section 422 of the Code.
(d) Section 2.2(d) of the Disclosure Schedule sets forth each employee or other Person with an offer letter or other contract or Company Employee Plan that contemplates a grant of, or right to purchase or receive: (i) options or other equity awards with respect to equity securities of the Company or any Affiliate or (ii) other securities of the Company, that in each case, have not been issued or granted as of the date of this Agreement, together with the number of such options, other equity awards or other equity securities.
(e) As of the date of this Agreement, 73,482 shares of Company Common Stock are issuable upon the exercise of outstanding, unexercised Company Warrants, which comprise all warrants or other similar rights to equity securities of the Company or any Subsidiary thereof that have been issued by the Company pursuant to any Contract.
(f) The Company has not granted any options to purchase Company Capital Stock or any other type of stock award other than pursuant to the Company Equity Plans. Except for the Company Options, the Company Warrants and the Company Series A Preferred Stock, as described in of the date of this Section 2.4(b)Agreement, there are no options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which the Company is a party or by which it is bound bound, obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital stock of the Company or any equity security of any Subsidiary of the Company. There are no outstanding or authorized stock appreciation, stock unit, phantom stock, profit participation or other similar rights with respect to the Company or any Subsidiary thereof.
Appears in 2 contracts
Company Capital Structure. (a) Immediately prior to Closing, the The authorized capital stock of the Company will consist consists of 100,000,000 shares of authorized Common Stock, $.001 par value10,700,000 common shares, of which 11,773,997 1,130,524 shares are issued and outstanding as of December 31, 1998 and of which 10,000,000 are designated Class B Common, none of which are outstanding, and 50,000,000 shares of Preferred Stock, $.001 par value2,300,000 preferred shares, of which 750,000 296,365 Series A, 1,080,000 Series B and 250,000 Series C preferred shares are designated Series A Preferred Stock, all of which are issued and outstanding, 17,100,003 shares are designated . The Company has issued warrants to purchase up to 116,000 Series B Preferred, all of which are outstanding, 11,149,287 preferred shares are designated and 50,000 Series C Preferredpreferred shares; assuming a fair market value of $4.49 for the Series B preferred shares and a price of $5.24 for the Series C preferred shares, 396,159 and the application of which are outstanding, 6,000,000 the net exercise provisions of the warrants an additional 83,739.17 Series B preferred shares are designated and 30,932.82 Series C-1 Preferred, 2,701,049 of which are outstanding, 5,000,000 C preferred shares are designated Series D Preferred, none of which are outstanding and 5,000,000 shares are designated Series D-1 Preferred, 2,083,334 of which are outstanding (collectively, the "will be issued thereunder. The Company Capital Stock"Stock is held by the persons, with the domicile addresses and in the amounts set forth on Schedule 2.2(a). Except as provided in the Stockholders Rights Agreement, all All outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable, are assessable and not subject to preemptive rights created by statute, the Certificate Articles of Incorporation or Bylaws of the Company or any agreement to which the Company is a party or by which it is bound and have been issued in compliance with federal and state securities laws. The Company has no other capital stock authorized, issued or outstandingbound.
(b) Except for the Company's 1997 Stock Option Plan (the "Option Plan") and the 1998 Employee Stock Purchase Plan (the "Purchase Plan"), the Company has never adopted or maintained any stock option plan or other plan providing for equity compensation of any person. The Company has reserved 15,520,342 729,000 common shares of Company Common Stock for issuance to employees, directors employees and consultants pursuant to the Option Plan, 12,249,907 of which 469,500 shares are subject to outstanding outstanding, unexercised options under the Option Plan as of December 31, 1998 and has reserved 1,000,000 259,500 shares remain available for the Purchase Plan, none of which are issued and outstandingfuture grant. The Company has issued warrants not granted any options other than pursuant to purchase 6,988,764 the Option Plan. Schedule 2.2(b) sets forth for each outstanding Company Option the name of the holder of such option, the domicile address of such holder, the number of shares of Common StockStock subject to such option, all of which are outstanding. The Company has reserved 6,988,764 shares of Company Common Stock for issuance upon the exercise price of such warrantsoption and the vesting schedule for such option, including the extent vested to date and whether the exercisability of such option will be accelerated and become exercisable by the transactions contemplated by this Agreement. Except as for the Company Options described in this Section 2.4(bSchedule 2.2(b), there are no options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which the Company is a party or by which it is bound obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital stock of the Company. Except for the Company Options described in Schedule 2.2(b), there are no options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which the Company is a party or by which it is bound obligating the Company to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. The holders of Company Options have been or will be given, or shall have properly waived, any required notice prior to the Merger and all such rights will be terminated at or prior to the Effective Time. As a result of the Merger, Parent will be the record and sole beneficial owner of all Company Capital Stock and rights to acquire or receive Company Capital Stock.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Critical Path Inc)
Company Capital Structure. (a) Immediately prior to Closing, the authorized capital stock of the Company will consist of 100,000,000 40,000,000 shares of authorized Common Stock, $.001 .01 par value, of which 11,773,997 9,814,863 shares are issued and outstanding as of December 31July 20, 1998 1999 and of which 10,000,000 5,000,000 are designated Class B Common, none of which 2,417,112 are outstanding, and 50,000,000 5,000,000 shares of Preferred Stock, $.001 par value, 400 of which 750,000 shares are designated Series A Preferred Stock, all of which are outstanding, 17,100,003 shares are designated Series B Preferred, all of which are outstanding, 11,149,287 shares are designated Series C Preferred, 396,159 of which are outstanding, 6,000,000 shares are designated Series C-1 Preferred, 2,701,049 of which are outstanding, 5,000,000 shares are designated Series D PreferredPreferred Stock, none of which are outstanding and 5,000,000 shares are designated Series D-1 Preferred, 2,083,334 of which are outstanding (collectively, the "Company Capital Stock"). Except as provided in the Stockholders Rights Agreement, all All outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable, are not subject to preemptive rights created by statute, the Amended and Restated Certificate of Incorporation Incorporation, the Certificate of Designation or the Bylaws of the Company or any agreement to which the Company is a party or by which it is bound and have been issued in compliance with federal and state securities lawsbound. The Company has no other capital stock authorized, issued or outstanding.
(b) Except for the Company's 1997 1992 Stock Option Plan (the "Option 1992 Stock Plan") and 1996 Stock Plan (the "1996 Stock Plan"), the 1996 Employee Stock Purchase Plan (the "1996 Purchase Plan"), the 1998 Employee Stock Purchase Plan (the "1998 Purchase Plan") and the Non-Qualified Option Plans, dated July 27, 1998 (the "Non-Qualified Plans"), with each of Xxxxxxx XxXxxxxx and Xxxxx X. Xxxxx, the Company has never adopted or maintained does not have any stock option plan or other plan providing for equity compensation of any person. The Company has reserved 15,520,342 1,658,769 shares of Company Common Stock for issuance to employees, directors and consultants pursuant to the Option 1992 Stock Plan, 12,249,907 316,704 of which are subject to outstanding options under the Option 1992 Stock Plan as of December 31July 20, 1998 and 1999, has reserved 1,000,000 3,100,000 shares pursuant to the 1996 Stock Plan, 2,213,038 of which are subject to outstanding options under the 1996 Stock Plan as of July 20, 1999, has reserved 400,000 shares for the 1996 Purchase Plan, none 327,142 of which are issued and outstanding. The Company outstanding as of July 20, 1999, and has issued warrants to purchase 6,988,764 reserved 485,069 shares of Common Stockfor the 1998 Purchase Plan, all 90,694 of which are outstandingissued and outstanding as of July 20, 1999. The Company has No shares have been reserved 6,988,764 shares of Company Common Stock for issuance upon under the exercise of such warrantsNon-Qualified Plans. Except as described in this Section 2.4(b), there are no options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which the Company is a party or by which it is bound obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital stock of the Company.
Appears in 1 contract
Samples: Series B Preferred Stock Purchase Agreement (Ia Corp)
Company Capital Structure. (a) Immediately prior to Closing, the The authorized capital stock of the Company will consist consists of 100,000,000 (i) 250,000,000 shares of authorized Common Stock, $.001 par value, Stock of which 11,773,997 32,728,826 shares are issued and outstanding as outstanding, and -13- 110,455,496 shares of December 31authorized Preferred Stock, 1998 and consisting of which 10,000,000 are designated Class B Common4,159,446 shares of Series A Preferred, none 4,159,446 shares of which are issued and outstanding, and 50,000,000 2,911,900 shares of Preferred Stock, $.001 par value, of which 750,000 shares are designated Series A Preferred Stock, all of which are outstanding, 17,100,003 shares are designated Series B Preferred, all 2,572,376 shares of which are outstanding, 11,149,287 issued and outstanding and 103,384,150 shares are designated of Series C Preferred, 396,159 75,815,012 shares of which are issued and outstanding, 6,000,000 . The number of shares are designated of Company Common Stock into which the Series C-1 A Preferred, 2,701,049 of which are outstanding, 5,000,000 shares are designated the Series D Preferred, none of which are outstanding B Preferred and 5,000,000 shares are designated the Series D-1 Preferred, 2,083,334 of which are outstanding (collectively, the "Company Capital Stock"C Preferred is convertible is set forth in Schedule 2.2(a). Except as provided set forth in the Stockholders Rights Agreementimmediately preceding sentence, all no shares of capital stock or other equity securities of the Company are issued, reserved for issuance (except as set forth in Section 2.2(b) below) or outstanding. The Company Capital Stock is held of record by the persons, with the addresses of record and in the amounts set forth on Schedule 2.2(a). All outstanding shares of Company Capital Stock are are, and at the Effective Time will be, duly authorized, validly issued, fully paid and non-assessable, are assessable and not subject to preemptive rights created by statute, the Certificate of Incorporation or Bylaws of the Company or any agreement to which the Company is a party or by which it is bound and have been bound. None of the outstanding Company Capital Stock or other securities of the Company was issued in compliance with federal violation of the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the "SECURITIES ACT") or any applicable state securities Blue Sky laws. The Company has no other capital stock authorized, issued or outstanding.
(b) Except for the Company's 1997 Stock Option Plan (the "Option Plan") In addition, there are currently issued and the 1998 Employee Stock Purchase Plan (the "Purchase Plan"), the Company has never adopted or maintained any stock option plan or other plan providing for equity compensation outstanding options and warrants to purchase an aggregate of any person. The Company has reserved 15,520,342 25,576,043 shares of Company Common Capital Stock for issuance issued to employeesdirectors, directors employees and consultants pursuant to the Option Plan, 12,249,907 of which are subject to outstanding options under the Option Plan as of December 31, 1998 and has reserved 1,000,000 shares for the Purchase Plan, none of which are issued and outstandingPlans. The Company has issued warrants to purchase 6,988,764 shares of Common Stock, Options are held by the persons and in the amounts set forth on Schedule 2.2(b). Schedule 2.2(b) sets forth the vesting schedule for all of which are outstanding. The Company has reserved 6,988,764 shares of Company Common Stock for issuance upon the exercise of such warrantsOptions. Except as described in this Section 2.4(bset forth on Schedule 2.2(b), there are no other options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which the Company is a party or by which it is bound obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital stock of the Company or obligating the Company to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. Except as set forth on Schedule 2.2(b), there are no outstanding or authorized stock appreciation, phantom stock, profit participation, or other similar rights with respect to the Company. Except as set forth on Schedule 2.2(b) and as required under Section 5.15, there are no voting trusts, proxies, or other agreements or understandings with respect to the capital stock of the Company.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Edwards J D & Co)
Company Capital Structure. (a) Immediately prior to Closing, the The authorized capital stock of the Company will consist consists of 100,000,000 316,051,000 shares of authorized Company Common Stock, $.001 par value, of which 11,773,997 49,010,899 shares are issued and outstanding as of December 31the date hereof, 1998 and of which 10,000,000 are designated Class B Common, none of which are outstanding, and 50,000,000 198,776,426 shares of Company Preferred Stock, $.001 par value, of which 750,000 4,385,772 shares are have been designated Series A Preferred Stock, all of which are outstanding, 17,100,003 2,430,060 shares are issued and outstanding as of the date hereof, 16,000,000 shares have been designated Series B PreferredPreferred Stock, all of which are outstanding, 11,149,287 13,164,496 shares are issued and outstanding as of the date hereof, 25,000,000 shares have been designated Series C PreferredPreferred Stock, 396,159 of which are outstanding, 6,000,000 14,335,473 shares are designated Series C-1 Preferredissued and outstanding as of the date hereof, 2,701,049 of which are outstanding, 5,000,000 27,339,654 shares are have been designated Series D PreferredPreferred Stock, none of which are outstanding and 5,000,000 26,177,150 shares are issued and outstanding as of the date hereof and 126,051,000 shares have been designated Series D-1 PreferredE Preferred Stock, 2,083,334 of which 105,568,127 shares are issued and outstanding (collectivelyas of the date hereof. As of the date hereof, the "capitalization of the Company is as set forth in this SECTION 2.2(a). As of the date hereof, the Company Capital Stock"). Except as provided Stock is owned of record by the persons and in the Stockholders Rights Agreement, all numbers of shares set forth in SECTION 2.2(a) of the Disclosure Schedule. All outstanding shares of Company Capital Stock are have been, and all shares that may be issued pursuant to the exercise of Company Options, or Company Warrants will be, when issued in accordance with the respective terms thereof, duly authorized, validly issued, fully paid and non-assessable, are assessable and not subject to preemptive rights created by statuteunder Delaware Law, the Certificate of Incorporation or Bylaws of the Company Charter Documents or any agreement to which the Company is a party or by which it is bound party, and together with all Company Options and Company Warrants have been issued in compliance in all material respects with all applicable federal and state securities laws. There are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Stock. The Company has no other capital stock other than the Company Capital Stock authorized, issued or outstanding. As of the date hereof, the conversion price of each series of Company Preferred Stock is as set forth in Section E.1. of Article FOURTH of the Company's certificate of incorporation, as amended to date and in full force and effect on the date hereof.
(b) SECTION 2.2(b) of the Disclosure Schedule sets forth as of the date hereof, a list of each holder of Restricted Stock and (a) the name of the holder of such Restricted Stock, (b) the number of shares of Restricted Stock held by such holder, (c) the repurchase price of such Restricted Stock, (d) the date on which such Restricted Stock was purchased or granted and (e) the applicable vesting schedule pursuant to which the Company's right of repurchase or forfeiture lapses.
(c) Except for the Company's 1997 Stock Option Plan (the "Option Plan") and the 1998 Employee Stock Purchase Plan (the "Purchase Plan"), the Company has never adopted adopted, sponsored or maintained any stock option plan or any other plan or agreement providing for equity compensation of to any person. The Company has reserved 15,520,342 58,995,417 shares of Company Common Stock for issuance to employeesemployees and directors of, directors and consultants pursuant to to, the Option PlanCompany upon the issuance of stock or the exercise of options granted under the Plan or any other plan, 12,249,907 agreement or arrangement (whether written or oral, formal or informal), of which 24,808,423 shares are subject to outstanding options under the Option Plan issuable, as of December 31the date hereof, 1998 and has reserved 1,000,000 shares for upon the Purchase Planexercise of outstanding, none of which are issued and outstanding. The Company has issued warrants to purchase 6,988,764 shares of Common Stock, all of which are outstandingunexercised options. The Company has reserved 6,988,764 104,500 shares of Company Common Stock and 157,563 shares of Series E Preferred Stock for issuance upon the exercise of such warrants, all of which shares are issuable, as of the date hereof, upon the exercise of outstanding, unexercised warrants. Except for (i) the Company Options and Company Warrants set forth in SECTION 2.2(c) of the Disclosure Schedule (such schedule to contain, for each holder of Company Options and Company Warrants, the name and address of such holder, the number of shares of Company Common Stock or Company Preferred Stock issuable upon exercise of such Company Options or Company Warrants held by such holder, the vesting schedule and exercise price of such Company Options and Company Warrants, the dates on which such Company Options and Company Warrants were granted and will expire, and whether any Company Options are intended to be incentive stock options under the Code) and (ii) changes since the date hereof resulting from the exercise of Company Options or Company Warrants outstanding on such date or the issuance of Company Options or Company Warrants as described in permitted under this Section 2.4(b)Agreement, there are no options, warrants, calls, rights, convertible securities, commitments or agreements of any character, written or oral, to which the Company is a party or by which it the Company is bound obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital Company Capital Stock or obligating the Company to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or other similar rights with respect to the Company. Except as contemplated hereby, there are no voting trusts, proxies, or other agreements or understandings to which the Company is a party with respect to the voting securities of the Company. There are no agreements to which the Company is a party relating to the registration, sale or transfer (including agreements relating to rights of first refusal, co-sale rights or "drag-along" rights) of any Company Capital Stock. To the Knowledge of the Company, as a result of the First Step Merger, Parent will be the sole record and beneficial holder of all issued and outstanding Company Capital Stock and all rights to acquire or receive any shares of Company Capital Stock, whether or not such shares of Company Capital Stock are outstanding.
Appears in 1 contract
Company Capital Structure. (a) Immediately prior to Closing, the The authorized capital stock of the Company will consist consists of 100,000,000 (i) 19,226,125 shares of authorized Common Stock, $.001 par value, of which 11,773,997 2,787,637 shares are issued and outstanding as of December 31, 1998 and of which 10,000,000 are designated Class B Common, none of which are outstanding, and 50,000,000 (ii) 23,875 shares of Preferred Stock, $.001 par value, of which 750,000 shares 2,500 are designated Series A Preferred StockPreferred, all of which are issued and outstanding, 17,100,003 3,125 shares are designated Series B Preferred, all of which are issued and outstanding, 11,149,287 1,000 shares are designated Series C Preferred, 396,159 all of which are issued and outstanding, 6,000,000 shares are designated Series C-1 Preferred, 2,701,049 of which are outstanding, 5,000,000 5,250 shares are designated Series D PreferredPreferred Stock, none all of which are outstanding issued and 5,000,000 outstanding, and 12,000 shares are designated Series D-1 E Preferred, 2,083,334 all of which are outstanding (collectively, the "issued and outstanding. The Company Capital Stock"). Except as provided Stock is held by the persons and in the Stockholders Rights Agreement, all amounts set forth on Schedule 2.2
(a) All outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable, are assessable and not subject to preemptive rights created by statute, the Certificate of Incorporation or Bylaws of the Company or any agreement to which the Company is a party or by which it is bound and bound. On or at the Effective Time, each outstanding share of Preferred Stock of the Company, other than shares for which dissenter's rights have been issued exercised, shall be converted into Common Stock of the Company in compliance with federal and state securities laws. The such number of shares of Common Stock of the Company has no other capital stock authorized, issued or outstandingas is set forth on Schedule 2.2(a).
(b) Except for the Company's 1997 Stock Option Plan (the "Option Plan") and the 1998 Employee Stock Purchase Plan (the "Purchase Plan"), the Company has never adopted or maintained any stock option plan or other plan providing for equity compensation of any person. The Company has reserved 15,520,342 2,150,000 shares of Company Common Stock for issuance to employeesdirectors, directors employees and consultants pursuant to the Option Plan, 12,249,907 of which 1,512,598 shares are subject to outstanding outstanding, unexercised options under the Option Plan as of December 31, 1998 and has reserved 1,000,000 433,065 shares remain available for the Purchase Plan, none of which are issued and outstanding. The Company has issued warrants to purchase 6,988,764 shares of Common Stock, all of which are outstandingfuture grant. The Company has reserved 6,988,764 no shares of Company Common Stock for issuance upon exercise of outstanding Company Options granted outside the Option Plan. Schedule 2.2(b) sets forth for each outstanding Company Option the name of the holder of such option, the number of shares of Common Stock subject to such option, the exercise price of such warrantsoption and the vesting schedule for such option, including the extent vested to date and whether the exercisability of such option will be accelerated and become exercisable by the transactions contemplated by this Agreement. Schedule 2.2(b) also sets forth for each outstanding Company Warrant the name of the holder of such warrant, the number of shares of Company Capital Stock subject to such warrant, the exercise price of such warrant and the vesting schedule for such warrant, including the extent vested to date and whether the exercisability of such warrant will be accelerated and become exercisable by the transactions contemplated by this Agreement. Except as described in this Section 2.4(bSchedule 2.2(b), there are no options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which the Company is a party or by which it is bound obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital stock of the Company. Except for the Company Options and Company Warrants described in Schedule 2.2(b), there are no options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which the Company is a party or by which it is bound obligating the Company to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. Except as disclosed on Schedule 2.2(b), the holders of Company Options and Company Warrants have been or will be given, or shall have properly waived, any required notice prior to the Merger. Solely as a result of the Merger, no person will have rights to acquire or receive Company Capital Stock, other than as held by Parent or as set forth on Schedule 2.2(b).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Critical Path Inc)
Company Capital Structure. (a) Immediately prior to Closing, the The authorized capital stock of the Company will consist consists of 100,000,000 53,000,000 shares, 40,000,000 shares of authorized which are designated as Common Stock, $.001 par value9,674,147 shares of which are issued and outstanding, 13,000,000 shares of which are designated as Preferred Stock, of which 11,773,997 11,000,000 shares are designated as Series A Preferred, of which 11,000,000 shares are issued and outstanding as of December 31outstanding, 1998 and 1,500,000 of which 10,000,000 are designated Class B Common, none of which are outstanding, and 50,000,000 shares of Preferred Stock, $.001 par value, of which 750,000 shares are designated Series A Preferred Stock, all of which are outstanding, 17,100,003 shares are designated Series B Preferred, all of which 968,553 shares are issued and outstanding, 11,149,287 shares and 48,000 of which are designated Series C Preferred, 396,159 of which are outstanding, 6,000,000 no shares are designated Series C-1 Preferred, 2,701,049 issued and outstanding. The Company has outstanding Company Warrants to acquire 1,837,490 shares of which are outstanding, 5,000,000 shares are designated Series D Preferred, none of which are outstanding and 5,000,000 shares are designated Series D-1 Preferred, 2,083,334 of which are outstanding (collectively, the "Common Stock. The Company Capital Stock"Stock and the Company Warrants are held by the persons and in the amounts set forth on Schedule 2.2(a). Except as provided in the Stockholders Rights Agreement, all All outstanding shares of Company the Company's Capital Stock are duly authorized, validly issued, fully paid and non-assessable, are assessable and not subject to preemptive rights created by statute, the Certificate of Incorporation or Bylaws of the Company or any agreement to which the Company is a party or by which it is bound and have been issued in compliance with federal and state securities laws. The Company has no other capital stock authorized, issued or outstandingbound.
(b) Except for the Company's 1997 Stock Option Plan (the "Option Plan") and the 1998 Employee Stock Purchase Plan (the "Purchase Plan"), the Company has never adopted or maintained any stock option plan or other plan providing for equity compensation of any person. The Company has reserved 15,520,342 7,280,000 shares of Company Common Stock for issuance to employees, directors employees and consultants pursuant to the Option Plan, 12,249,907 of which 6,441,100 shares are subject to outstanding outstanding, unexercised options under the Option Plan as of December 31, 1998 and has reserved 1,000,000 838,900 shares remain available for the Purchase Plan, none of which are issued and outstanding. The Company has issued warrants to purchase 6,988,764 shares of Common Stock, all of which are outstandingfuture grant. The Company has reserved 6,988,764 1,837,490 shares of Company Common Stock for issuance upon exercise of the Company Warrants. The Company has also reserved 14,874,212 shares of Common Stock for issuance upon conversion of outstanding shares of the Company's Preferred Stock. Schedule 2.2(b) sets forth for each outstanding Company Option the name of the holder of such option, the number of shares of Common Stock subject to such option, the exercise price of such warrantsoption and the vesting schedule for such option, including the extent vested to date and whether the exercisability of such option will be accelerated and become fully exercisable by the transactions contemplated by this Agreement. Except as for the Company Options described in this Schedule 2.2(b) and the Company Warrants described in Section 2.4(b)2.2(a) above, there are no options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which the Company is a party or by which it is bound obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital stock of the Company.Company or obligating the Company to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. The holders of Company Options and Company Warrants have been or will be given, or shall have properly waived, any required notice prior to the Merger and all such rights will be terminated at or prior
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Network Associates Inc)
Company Capital Structure. (a) Immediately prior to Closing, the The authorized capital stock of the Company will consist consists of 100,000,000 33,000,000 shares of authorized Company Common Stock, $.001 par value, Stock of which 11,773,997 3,547,969 shares are issued and outstanding as of December 31, 1998 and of which 10,000,000 are designated Class B Common, none of which are outstandingthe date hereof, and 50,000,000 14,413,542 shares of authorized Preferred Stock, $.001 par value, . 2,800,592 shares of which 750,000 shares the Company's Preferred Stock are designated Series A Preferred Stock, all of which 2,750,000 shares are outstanding, 17,100,003 issued and outstanding as of the date hereof. 3,612,950 shares of the Company's Preferred Stock are designated Series B PreferredPreferred Stock, all of which are outstanding, 11,149,287 3,561,850 shares are issued and outstanding as of the date hereof. 8,000,000 shares of the Company's Preferred Stock are designated as Series C PreferredPreferred Stock, 396,159 of which are outstanding, 6,000,000 3,831,695 shares are designated Series C-1 Preferredissued and outstanding as of the date hereof. The Company's capital stock is held by the persons, 2,701,049 with the domicile addresses, to the extent available, and in the amounts set forth in Section 3.4(a) of which are outstanding, 5,000,000 shares are designated Series D Preferred, none of which are outstanding and 5,000,000 shares are designated Series D-1 Preferred, 2,083,334 of which are outstanding (collectively, the "Company Capital Stock")Disclosure Schedule. Except as provided set forth in Section 3.4(a) of the Stockholders Rights AgreementDisclosure Schedule, all outstanding shares of Company Capital Stock the Company's capital stock are duly authorized, validly issued, fully paid and non-assessable, are assessable and not subject to preemptive rights created by statute, the Certificate Articles of Incorporation Incorporation, Certificates of Designation or Bylaws of the Company or any agreement to which the Company is a party or by which it is bound bound, and all such shares have been issued in compliance with all applicable federal and state securities laws. The There are no declared or accrued unpaid dividends with respect to any shares of the Company's capital stock. There are no bonds, debentures, notes or other indebtedness of the Company has no other capital stock authorizedhaving the right to vote 17 (or convertible into, issued or outstandingexchangeable for, securities having the right to vote) on any matter which shareholders of the Company may vote.
(b) Except for the Company's 1997 1995 Stock Option Plan (collectively the "Option Plan") and the 1998 Employee Stock Purchase Plan (the "Purchase Plan"), the Company has never adopted or maintained any formal stock option plan or other plan providing for equity compensation of any person. The Company has reserved 15,520,342 shares an aggregate of 5,280,000 Shares of Company Common Stock for issuance to employees, directors employees and consultants pursuant to the Option Plan, 12,249,907 of which as of the date hereof 2,114,995 shares have been exercised and 2,805,500 shares are subject to outstanding, unexercised options. Section 3.4(b) of the Disclosure Schedule sets forth for each outstanding options Company Option awarded under the Option Plan as of December 31, 1998 and has reserved 1,000,000 shares for the Purchase Plan, none the name of which are issued and outstanding. The Company has issued warrants to purchase 6,988,764 shares the holder of Common Stocksuch option, all the domicile address of which are outstanding. The Company has reserved 6,988,764 such holder, the number of shares of Company Common Stock for issuance upon subject to such option, the exercise price of such warrantsoption and the vesting schedule for such option, including the extent vested to date. Except as described for such Company Options and warrants listed in this Section 2.4(b)3.4(b) of the Disclosure Schedule, there are no options, warrants, callsrights, rightsconvertible securities, commitments or agreements of any character, written or oral, to which the Company is a party or by which it is bound obligating the Company to issue, deliver, deliver or sell, repurchase or redeem, or cause to be issued, delivered, delivered or sold, repurchased or redeemed, any shares of capital stock of the Company or obligating the, Company to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, right, convertible security, commitment or agreement. Section 3.4(b) of the Disclosure Schedule also sets forth the name of the holder of any shares of capital stock of the Company subject to vesting (including rights of repurchase with regard to shares of capital stock of the Company), the number of shares of capital stock of the Company subject to vesting and the vesting schedule for such shares of capital stock of the Company, including the extent vested to date. Except as described in Section 3.4(b) of the Disclosure Schedule, no vesting provisions applicable to any Company Option or share of Company Stock will accelerate in connection with the transactions contemplated by the Merger or this Agreement. There are no rights, puts, commitments, agreements or other obligations outstanding requiring the Company or which could require the Company (with or without notice or lapse of time or both) to repurchase or redeem any shares of capital stock of the Company or any Company Options. There are no outstanding authorized stock appreciation, phantom stock, profit participation, or other similar rights with respect to the Company. There are no voting trusts, proxies, or other agreements or understandings with respect to the voting stock of the Company. Subject to the rights of any dissenting stockholders, as a result of the Merger, Parent will be the record and sole beneficial owner of all outstanding capital stock of the Surviving Corporation and all rights to acquire or receive any capital stock of the Surviving Corporation, whether or not such capital stock is outstanding.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Proxim Inc /De/)
Company Capital Structure. (a) Immediately prior to Closing, the The authorized capital stock of the Company will consist consists (i) of 100,000,000 10,000,000 shares of authorized Common Stock, $.001 par value, of which 11,773,997 2,400,000 shares are issued and outstanding as of December 31, 1998 and of which 10,000,000 are designated Class B Common, none of which are outstanding, and 50,000,000 (ii) 1,015,000 shares of Preferred Stock, $.001 par value, of which 750,000 shares are 415,000 shares, designated Series A Preferred Stock, all of which are outstanding, 17,100,003 shares are designated Series B Preferred, all . All of which are outstanding, 11,149,287 shares are designated Series C Preferred, 396,159 of which are outstanding, 6,000,000 shares are designated Series C-1 Preferred, 2,701,049 of which are outstanding, 5,000,000 shares are designated Series D Preferred, none of which are outstanding and 5,000,000 shares are designated Series D-1 Preferred, 2,083,334 of which are outstanding (collectively, the "Company Capital Stock"). Except as provided in the Stockholders Rights Agreement, all such outstanding shares of Company Capital Stock are have been duly authorized, validly issued, fully paid and non-assessable, assessable and have been issued in compliance with all applicable federal and state securities laws. The outstanding shares of capital stock of the Company are not subject to preemptive rights created by statute, the Certificate Articles of Incorporation or Bylaws of the Company Company, or any agreement to which the Company is a party or by which it is bound and have been issued in compliance may be bound. There are no voting agreements or voting trusts with federal and state securities lawsrespect to any of the outstanding shares of capital stock of the Company. The Company has no other outstanding shares of capital stock authorized, issued or outstandingof the Company are held by the persons and in the amounts set forth in Section 3.2 of the Company Schedules.
(b) Except for the Company's 1997 Stock Option Plan (the "Option Plan") and the 1998 Employee Stock Purchase Plan (the "Purchase Plan"), the Company has never adopted or maintained any stock option plan or other plan providing for equity compensation of any person. The Company has reserved 15,520,342 300,000 shares of Company Common Stock for issuance to employees, directors employees and consultants pursuant to the Company's 1998 Stock Option PlanPlan (the "COMPANY'S STOCK OPTION PLAN"), 12,249,907 of which are stock options to purchase 22,394 shares of Company Common Stock have been granted to date (the "COMPANY STOCK OPTIONS") and 277,606 shares remain available for future grant under the plan. Section 3.2 (b) of the Company Schedules sets forth for each outstanding Company Stock Options the name of the holder of such option, the number of shares of Company Common Stock subject to outstanding options under such option, the Option Plan as exercise price of December 31such option and the vesting schedule for such option, 1998 and has reserved 1,000,000 shares for including the Purchase Plan, none of which are issued and outstanding. The Company has issued warrants extent vested to purchase 6,988,764 shares of Common Stock, all of which are outstandingdate. The Company has reserved 6,988,764 600,000 shares of Company Common Series A Preferred Stock for issuance issuable upon the exercise of such warrantsa warrant issued to Snap! LLC (the "WARRANT"). Except as for the Company Stock Options described in this Section 2.4(b)3.2 (b) of the Company Schedules and the Warrant, there are no options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which the Company is a party or by which it is bound obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital stock of the Company or obligating the Company to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. The Company's Stock Options and the Warrant have been issued in compliance with all applicable federal and state securities laws. The holders of Company Stock Options and the Warrant have been or will be given, or shall have properly waived, any required notice prior to the Merger. As a result of the Merger, Parent will be the record and beneficial owner of all outstanding capital stock of the Company and, except for stock options granted pursuant to the Company's Stock Option Plan and the Warrant, rights to acquire capital stock of the Company.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Ticketmaster Online Citysearch Inc)
Company Capital Structure. (a) Immediately prior to Closingthe Closing and the Conversion, the authorized capital stock of the Company will consist of 100,000,000 shares of authorized consists of: 40,000,000 Company Common Stock, $.001 par valueShares, of which 11,773,997 13,530,053 shares are issued and outstanding as of December 31the Agreement Date, 1998 and 5,000,000 shares of preferred stock, par value $0.001 per share, of which 10,000,000 (i) 420,000 shares have been designated as Series A Convertible Preferred Stock (“Company Series A Stock”), all of which shares are issued and outstanding, (ii) 100,000 shares have been designated Class as Series B CommonConvertible Preferred Stock (“Company Series B Stock”), all of which shares are issued and outstanding, (iii) 516,707 shares have been designated as Series C Convertible Preferred Stock (“Company Series C Stock”), all of which shares are issued and outstanding, (iv) 236,556 shares have been designated as Series D Convertible Preferred Stock (“Company Series D Stock”), all of which shares are issued and outstanding, and (v) 1,200,000 shares have been designated as Series E Preferred Stock, none of which shares are outstandingissued and outstanding as of the Agreement Date. Upon (A) the Conversion, (B) the exercise of Company Warrants to purchase 774,000 Company Common Shares and 50,000,000 (C) the issuance of shares of Series E Preferred Stock, $.001 par value, of which 750,000 shares are designated Series A Preferred Stock, all of which are outstanding, 17,100,003 shares are designated Series B Preferred, all of which are outstanding, 11,149,287 shares are designated Series C Preferred, 396,159 of which are outstanding, 6,000,000 shares are designated Series C-1 Preferred, 2,701,049 of which are outstanding, 5,000,000 shares are designated Series D Preferred, none of which are outstanding and 5,000,000 shares are designated Series D-1 Preferred, 2,083,334 of which are outstanding (collectivelyStock pursuant to the Guarantor Stock Purchase Agreement, the "Company Capital Stock"). Except as provided in the Stockholders Rights Agreement, all issued and outstanding shares of the Company will consist only of 26,262,683 Company Common Shares and 1,080,000 shares of Series E Preferred Stock. The outstanding Company Capital Stock Shares, including all shares subject to the Company’s right of repurchase, are held of record and beneficially by the Persons with the addresses on record with the Company and in the amounts set forth on Schedule 2.6(a). All outstanding Company Capital Shares (i) have been duly authorizedauthorized and validly issued and are fully paid, validly issued, fully paid and non-assessableassessable and, are except for the Company Preferred Shares, not subject to preemptive rights or similar rights created by statute, the Company Certificate of Incorporation Incorporation, the Company’s By-Laws or Bylaws of any Company Contract, and (ii) have been offered, sold, issued and delivered by the Company or any agreement to which the Company is a party or by which it is bound and have been issued in compliance with all applicable Laws, including federal and state securities lawsLaws, in all material respects. The There are no declared or accrued but unpaid dividends with respect to any Company has no other capital stock authorized, issued or outstandingCapital Shares.
(bi) Except for the Company's 1997 Stock Option ’s Second Amended and Restated Long-Term Incentive Plan and 2005 Long-Term Incentive Plan, each as amended to date (the "Option Plan") and the 1998 Employee Stock Purchase Plan (the "Purchase Plan"“Company Equity Incentive Plans”), neither the Company nor any of its Subsidiaries has never adopted ever adopted, sponsored or maintained any stock option plan or any other plan providing for issuance of equity compensation of to any personPerson. The Company has Equity Incentive Plans were duly authorized, approved and adopted by the Company Board and the Stockholders. The Company had reserved 15,520,342 shares of Company Common Stock for issuance to employeesEmployees of, directors and consultants pursuant to, the Company and its Subsidiaries 5,000,000 Company Common Shares under the Company Equity Incentive Plans, of which, prior to the Option PlanAgreement Date and the actions taken in accordance with Section 4.9 hereof, 12,249,907 of which are subject to outstanding options under the Option Plan as of December 31, 1998 and has reserved 1,000,000 shares for the Purchase Plan, none of which are issued and outstanding. The Company has issued warrants to purchase 6,988,764 shares of Common Stock, all of which are outstanding. The Company has reserved 6,988,764 shares of (i) 3,290,175 Company Common Stock for issuance Shares were issuable upon the exercise of outstanding unexercised options (the “Company Options”), and (ii) 820,200 Company Common Shares were available for grant but had not yet been granted. All outstanding Company Options were offered, issued and delivered by the Company in compliance with all applicable Laws, in all material respects, and in compliance with the terms and conditions of the Company Equity Incentive Plans. As of the Agreement Date, the Company has delivered to Parent and Merger LLC a schedule setting forth for each previously outstanding Company Option, the name of the holder of such warrantsoption, the domicile address of such holder on record with the Company, the date of grant or issuance of such option, the number of Company Common Shares subject to such option, the exercise price of such option and the vesting schedule for such option, it being understood that all Company Options were cancelled prior to the Agreement Date.
(ii) As of the Agreement Date, the Company has an outstanding warrant (the “Company Warrant”) for the purchase of an aggregate of 200,000 Company Common Shares. The Company Warrant has been offered, issued and delivered by the Company in compliance with all applicable Laws, in all material respects. Schedule 2.6(b)(ii) sets forth for the Company Warrant, the name of the holder of such Company Warrant, the address of such holder on record with the Company, the date of grant or issuance of such Company Warrant, the number of Company Common Shares subject to such Company Warrant and the exercise price of such Company Warrant.
(iii) Except for the Company Options, Company Warrant, the Restricted Stock Units referenced in Section 2.6(b)(iv), and as described in this Section 2.4(bset forth on Schedule 2.6(b)(ii), there are no options, warrants, calls, rights, commitments Company Stock Rights or agreements of any character, written or oral, Contracts to which the Company or any of its Subsidiaries is a party or by which it the Company or any of its Subsidiaries is bound obligating the Company or any Subsidiary to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares Company Capital Shares or any capital stock or equity or other ownership interest of any Subsidiary or obligating the Company or any Subsidiary to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such Company Stock Right. There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or other similar rights with respect to the Company or any of its Subsidiaries.
(iv) The Company Board approved and adopted the Carbon Nanotechnologies, Inc. 2007 Restricted Stock Unit Plan (the “RSU Plan”) on March 21, 2007, a correct and complete copy of which, together with the allocation schedule thereto, has been provided to Parent. The RSU Plan was duly authorized, approved and adopted by the Company Board. As of the capital Agreement Date, the Company has outstanding Restricted Stock Units under the RSU Plan for an aggregate of 3,101,500 Company Common Shares and has outstanding 350,000 Restricted Stock Units that are issued outside of the Plan. All Restricted Stock Units issued outside of the RSU Plan have been offered, issued and delivered by the Company in compliance with all applicable Laws, in all material respects. The Company has delivered to Parent and Merger LLC a schedule setting forth for each outstanding Restricted Stock Unit, the name of the holder of such Restricted Stock Unit, the domicile address of such holder on record with the Company, the date of grant or issuance of such Restricted Stock Unit, and the number of Company Common Shares subject to such Restricted Stock Unit.
(c) There are no (i) voting trusts, proxies, or other Contracts or understandings with respect to the voting of any stock of the CompanyCompany or any of its Subsidiaries to which the Company or any of its Subsidiaries is a party, by which the Company or any of its Subsidiaries is bound, or of which the Company has knowledge, or (ii) Contracts or understandings to which the Company or any of its Subsidiaries is a party, by which the Company or any of its Subsidiaries is bound, or of which the Company has knowledge relating to the registration, sale or transfer (including Contracts relating to rights of first refusal, “co-sale” rights or “drag-along” rights) of any Company Capital Shares. The holders of Company Capital Shares, Company Options and Company Warrant have been or will be properly given, or shall have properly waived, any required notice prior to the Merger.
Appears in 1 contract
Company Capital Structure. (a) Immediately prior to Closing, the The authorized capital stock of the Company will consist of 100,000,000 consists of: 40,000,000 shares of authorized Common Stock, par value $.001 par value0.0001 per share (the “Company Common Stock”), of which 11,773,997 11,055,653 shares are issued and outstanding as of December 31, 1998 outstanding; and of which 10,000,000 are designated Class B Common, none of which are outstanding, and 50,000,000 22,522,057 shares of Preferred Stock, par value $.001 par value, of which 750,000 0.0001 per share (the “Preferred Stock”). Of the authorized Preferred Stock: 8,590,231 shares are have been designated Series A Preferred Stock, all of which are outstanding, 17,100,003 shares 8,405,809 shares are issued and outstanding; and 13,931,826 shares have been designated Series B PreferredPreferred Stock, all of which are outstanding, 11,149,287 13,731,824 shares are designated Series C Preferred, 396,159 issued and outstanding. No other shares of which Preferred Stock are issued or outstanding, 6,000,000 shares are designated Series C-1 Preferred, 2,701,049 of which are outstanding, 5,000,000 shares are designated Series D Preferred, none of which are outstanding and 5,000,000 shares are designated Series D-1 Preferred, 2,083,334 of which are outstanding (collectively, the ". The Company Capital Stock", including all shares of the Company Restricted Stock, is held of record by the Persons, with the addresses of record and in the amounts set forth on Schedule 3.3(a). Except as provided in the Stockholders Rights Agreement, all All outstanding shares of Company Capital Stock (i) are duly authorized, validly issued, fully paid and non-assessable, assessable and are not subject to preemptive rights created by statute, the Company Certificate of Incorporation or Bylaws of the Company or any agreement to which the Company is a party or by which it is bound bound, and (ii) have been issued offered, sold and delivered by the Company in compliance in all material respects with federal and state securities lawsall applicable Laws. The All preferential rights of the Preferred Stock in connection with the sale of substantially all of the assets of the Company has or a merger involving the Company are set forth in the Company Certificate of Incorporation. There are no other capital stock authorized, issued declared or outstandingaccrued but unpaid dividends with respect to any shares of Company Capital Stock.
(bi) Except for the Company's 1997 ’s 2000 Stock Option Incentive Plan (the "“2000 Option Plan"”) and the 1998 Employee Company’s 2003 Stock Purchase Incentive Plan (the "Purchase “2003 Option Plan"”, and together with the 2000 Option Plan, the “Company Option Plans ”), neither the Company nor any of its Subsidiaries has never adopted ever adopted, sponsored or maintained any stock option plan or any other plan or agreement providing for equity compensation to any Person. The Company Option Plans have been duly authorized, approved and adopted by the Company’s board of any persondirectors and its stockholders and are in full force and effect. The Company has reserved 15,520,342 a total of 8,250,000 shares of Company Common Stock for issuance to employeesemployees and directors of, directors and consultants to, the Company under the Company Option Plans, of which (A) 2,861,278 shares are issuable, as of the date hereof, upon the exercise of outstanding, unexercised stock options granted pursuant to the Company Option Plans (the “Company Options ”), (B) 4,963,069 shares are available for grant but have not yet been granted pursuant to the Company Option Plans, (C) 405,653 shares have been issued and are outstanding pursuant to the prior exercise of stock options or other stock rights granted pursuant to the Company Option Plans and (D) 20,000 shares of Company Restricted Stock have been issued and are outstanding pursuant to the prior exercise of stock options or other stock rights granted pursuant to the Company Option Plans. No outstanding Company Option permits payment of the exercise price therefore by any means other than cash, check or such other form of payment permitted in Section 5.3 of the applicable Company Option Plan. All outstanding Company Options have been offered, 12,249,907 issued and delivered by the Company in compliance in all material respects with all applicable Laws. Schedule 3.3(b) sets forth for each outstanding Company Option, the name of which are the holder of such option, the domicile address of such holder, an indication of whether such holder is a current Employee of the Company, the date of grant or issuance of such option, the number of shares of Company Common Stock subject to outstanding options under such option, the exercise price of such option, the vesting schedule for such option, including the extent vested to the date of this Agreement and whether and to what extent the exercisability of such option will be accelerated and become exercisable as a result of the transactions contemplated by this Agreement, and whether such option is a Nonstatutory Option Plan or an incentive stock option as defined in Section 422 of the Code. Assuming the actions to be taken pursuant to Section 7.9 hereof are properly taken, the exercisability of the Company Options will not be accelerated by reason of the Merger or the transactions contemplated by this Agreement and (i) the number of shares of Company Common Stock subject to Company Options that will be vested as of December 31, 1998 the Effective Time will be 1,409,195 shares (the “Vested Options”) and has reserved 1,000,000 (ii) the number of shares for of Company Common Stock subject to Company Options that will be unvested as of the Purchase Plan, none of which are issued and outstanding. Effective Time will be 1,452,083 shares (the “Unvested Options”).
(ii) The Company has issued warrants to (each a “Warrant” and collectively, the “Warrants”) for the purchase 6,988,764 of an aggregate of 184,431 shares of Common Series A Preferred Stock and 193,550 shares of Series B Preferred Stock, respectively. All Warrants have been offered, issued and delivered by the Company in compliance in all material respects with all applicable Laws. Schedule 3.3(b)(ii) sets forth for each outstanding Warrant, the name of which are outstanding. The Company has reserved 6,988,764 the holder of such Warrant, the domicile address of such holder, an indication of whether such holder is a current Employee of the Company, the date of grant or issuance of such Warrant, the number of shares of Company Common Capital Stock for issuance upon (and the class and series thereof) subject to such Warrant, the exercise price of such warrantsWarrant, the vesting schedule for such Warrant, including the extent vested as of the date of this Agreement and whether and to what extent the exercisability of such Warrant will be accelerated and become exercisable as a result of the transactions contemplated by this Agreement. Except as described in this Section 2.4(b)for the Company Options and Warrants, there are no options, warrants, calls, rights, convertible securities, commitments or agreements of any character, written or oral, to which the Company or any of its Subsidiaries is a party or by which it the Company or any of its Subsidiaries is bound obligating the Company or any Subsidiary to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the Company Capital Stock or any capital stock of any Subsidiary or obligating the CompanyCompany or any Subsidiary to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or other similar rights with respect to the Company or any of its Subsidiaries.
(iii) Except as set forth in Schedule 3.3(b)(iii), (A) there are no voting trusts, proxies, or other agreements or understandings with respect to the voting stock of the Company or any of its Subsidiaries to which the Company or any of its Subsidiaries is a party, by which the Company or any of its Subsidiaries is bound, or of which the Company has knowledge, and (B) there are no agreements or understandings to which the Company or any of its Subsidiaries is a party, by which the Company or any of its Subsidiaries is bound, or of which the Company has knowledge relating to the registration, sale or transfer (including agreements relating to rights of first refusal, “co-sale” rights or “drag-along” rights) of any Company Capital Stock. The holders of Company Options, Warrants and Company Capital Stock have been or will be properly given, or shall have properly waived, any required notice prior to the Merger. Each holder of Company Restricted Stock has filed on a timely basis an election under Section 83(b) of the Code with respect to such Company Restricted Stock.
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Company Capital Structure. (a) Immediately prior to Closing, the The authorized capital stock of the Company will consist of 100,000,000 consists of: (i) 47,000,000 shares of authorized Common Stock, $.001 par value, 7,565,211 shares of which 11,773,997 shares are issued and outstanding as of December 31the date hereof; (ii) 3,000,000 shares of Series A Preferred Stock, 1998 and 3,000,000 shares of which 10,000,000 are designated Class issued and outstanding as of the date hereof; (iii) 5,000,000 shares of Series B CommonPreferred Stock, 3,200,004 shares of which are issued and outstanding as of the date hereof; (iv) 2,600,000 shares of Series C Preferred Stock, 2,500,000 shares of which are issued and outstanding as of the date hereof; (v) 4,083,660 shares of Series D Preferred Stock, 4,083,660 shares of which are issued and outstanding as of the date hereof; (vi) 3,333,333 shares of Series E Preferred Stock, 2,140,617 shares of which are issued and outstanding as of the date hereof; (vii) 5,000,000 shares of Series F Preferred Stock, 3,834,477 shares of which are issued and outstanding as of the date hereof; and (viii) 2,000,000 shares of Series G Preferred Stock, none of which are outstanding, issued and 50,000,000 shares of Preferred Stock, $.001 par value, of which 750,000 shares are designated Series A Preferred Stock, all of which are outstanding, 17,100,003 shares are designated Series B Preferred, all of which are outstanding, 11,149,287 shares are designated Series C Preferred, 396,159 of which are outstanding, 6,000,000 shares are designated Series C-1 Preferred, 2,701,049 of which are outstanding, 5,000,000 shares are designated Series D Preferred, none of which are outstanding and 5,000,000 shares are designated Series D-1 Preferred, 2,083,334 of which are outstanding (collectively, the "Company Capital Stock"). Except as provided in the Stockholders Rights Agreement, all outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable, are not subject to preemptive rights created by statute, the Certificate of Incorporation or Bylaws of the Company or any agreement to which the Company is a party or by which it is bound and have been issued in compliance with federal and state securities lawsdate hereof. The Company has no other capital stock authorized, issued or outstanding.. The Company Capital Stock is held by the persons with the domicile addresses and in the amounts set forth on Company Schedule 2.2(a). Company Schedule 2.2(a) sets forth, as of the date hereof, the total number of
(b) Except for the Company's 1997 Stock Option Plan (the "Option Plan") and the 1998 Employee Stock Purchase Plan (the "Purchase Plan")Plan[s], the Company has never adopted or maintained any stock option plan or other plan providing for equity compensation of any person. The Company has reserved 15,520,342 10,985,762 shares of Company Common Stock for issuance to employeesemployees and directors of, directors and consultants pursuant to to, the Company upon the exercise of options granted under the Option PlanPlans, 12,249,907 6,628,261 shares of which are subject to outstanding issuable, as of the date hereof, upon the exercise of outstanding, unexercised options granted under the Option Plan Plan[s]. No shares have been issued, as of December 31the date hereof, 1998 upon the exercise of options granted under the Option Plan[s]. Company Schedule 2.2(a) sets forth for each outstanding Company Option and has reserved 1,000,000 shares for Company Warrant, the Purchase Planname of the holder of such security, none the domicile address of which are issued and outstanding. The Company has issued warrants to purchase 6,988,764 shares such holder, the number of Common Stock, all of which are outstanding. The Company has reserved 6,988,764 shares of Company Common Capital Stock for issuance issuable upon the exercise of such warrantsoption, the exercise price of such option, the vesting schedule for such option, including the extent vested to date and whether the vesting of such option will be accelerated by the transactions contemplated by this Agreement and whether such option is intended to qualify as an incentive stock option as defined in Section 422 of the Code. Except as described in this Section 2.4(b)for the Company Options and the Company Warrants, there are no options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which the Company is a party or by which it is bound obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital stock of the Company or obligating the Company to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or other similar rights with respect to the Company. Except as contemplated hereby, there are no voting trusts, proxies, or other agreements or understandings with respect to the voting stock of the Company. As a result of the Merger, and assuming Parent owns all outstanding shares of Merger Sub and all rights to acquire any shares of Merger Sub, Parent will be the sole record and beneficial holder of all issued and outstanding Company Capital Stock and all rights to acquire or receive any shares of Company Capital Stock, whether or not such shares of Company Capital Stock are outstanding.
Appears in 1 contract
Company Capital Structure. (a) Immediately prior to Closing, the authorized capital stock of the Company will consist of 100,000,000 shares of authorized Common Stock, $.001 par value, of which 11,773,997 11,722,116 shares are issued and outstanding as of December 3116, 1998 and of which 10,000,000 are designated Class B Common, none of which are outstanding, and 50,000,000 shares of Preferred Stock, $.001 par value, of which 750,000 shares are designated Series A Preferred Stock, all of which are outstanding, 17,100,003 shares are designated Series B Preferred, all of which are outstanding, 11,149,287 shares are designated Series C Preferred, 396,159 of which are outstanding, 6,000,000 shares are designated Series C-1 Preferred, 2,701,049 none of which are outstanding, 5,000,000 shares are designated Series D Preferred, none of which are outstanding and 5,000,000 shares are designated Series D-1 Preferred, 2,083,334 none of which are outstanding (collectively, the "Company Capital StockCOMPANY CAPITAL STOCK"). Except as provided in the Stockholders Rights Agreement, all outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-non- assessable, are not subject to preemptive rights created by statute, the Certificate of Incorporation or Bylaws of the Company or any agreement to which the Company is a party or by which it is bound and have been issued in compliance with federal and state securities laws. The Company has no other capital stock authorized, issued or outstanding.
(b) Except for the Company's 1997 Stock Option Plan (the "Option PlanOPTION PLAN") and the 1998 Employee Stock Purchase Plan (the "Purchase PlanPURCHASE PLAN"), the Company has never adopted or maintained any stock option plan or other plan providing for equity compensation of any person. The Company has reserved 15,520,342 shares of Company Common Stock for issuance to employees, directors and consultants pursuant to the Option Plan, 12,249,907 12,358,723 of which are subject to outstanding options under the Option Plan as of December 3116, 1998 and has reserved 1,000,000 shares for the Purchase Plan, none of which are issued and outstanding. The Company has issued warrants to purchase 6,988,764 shares of Common Stock, all of which are outstanding. The Company has reserved 6,988,764 shares of Company Common Stock for issuance upon the exercise of such warrants. Except as described in this Section 2.4(b), there are no options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which the Company is a party or by which it is bound obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital stock of the Company.
Appears in 1 contract
Samples: Series C 1 Preferred Stock Purchase Agreement (Covad Communications Group Inc)
Company Capital Structure. (a) Immediately prior to Closing, the The authorized capital stock of the Company will consist of 100,000,000 consists of: 31,552,548 shares of authorized Common Stock, par value $.001 par value0.001 per share (the "COMPANY COMMON STOCK"), of which 11,773,997 6,889,131 shares are issued and outstanding as of December 31, 1998 outstanding; and of which 10,000,000 are designated Class B Common, none of which are outstanding, and 50,000,000 8,223,726 shares of Preferred Stock, par value $.001 par value, of which 750,000 0.001 per share (the "PREFERRED STOCK"). Of the authorized Preferred Stock: 3,142,125 shares are have been designated Series A Preferred Stock, all of which are outstanding, 17,100,003 shares are issued and outstanding; 1,552,031 shares have been designated Series B PreferredPreferred Stock, all of which are outstanding, 11,149,287 shares are issued and outstanding; and 3,529,570 shares have been designated Series C PreferredPreferred Stock, 396,159 all of which are outstanding, 6,000,000 shares are designated Series C-1 Preferred, 2,701,049 issued and outstanding. No other shares of which Preferred Stock are issued or outstanding, 5,000,000 shares are designated Series D Preferred, none of which are outstanding and 5,000,000 shares are designated Series D-1 Preferred, 2,083,334 of which are outstanding (collectively, the ". The Company Capital Stock", including all shares subject to the Company's right of repurchase, is held of record by the Persons, with the addresses of record and in the amounts set forth on SCHEDULE 2.3(A). Except as provided in the Stockholders Rights Agreement, all All outstanding shares of Company Capital Stock (i) are duly authorized, validly issued, fully paid and non-assessable, assessable and are not subject to preemptive rights created by statute, the Certificate of Incorporation or Bylaws By-laws of the Company or any agreement to which the Company is a party or by which it is bound bound, and (ii) have been issued offered, sold and delivered by the Company in compliance in all material respects with all applicable federal, state, foreign or local statutes, laws, rules or regulations, including federal and state securities laws. The All preferential rights of the Preferred Stock in connection with the sale of substantially all of the assets of the Company has or a merger involving the Company are set forth in the Certificate of Incorporation of the Company. There are no other capital stock authorized, issued declared or outstandingaccrued but unpaid dividends with respect to any shares of Company Capital Stock.
(b) Except for the Company's 1997 1998 Stock Option Plan (the "Option Plan") and the 1998 Employee Stock Purchase Plan (the "Purchase PlanSTANDARD OPTION PLAN"), neither the Company nor any of its Subsidiaries has never adopted ever adopted, sponsored or maintained any stock option plan or any other plan or agreement providing for equity compensation to any Person. The Standard Option Plan has been duly authorized, approved and adopted by the Company's board of any persondirectors and its stockholders and is in full force and effect. The Company has reserved 15,520,342 a total of 5,999,602 shares of Company Common Stock for issuance to employeesemployees and directors of, directors and consultants to, the Company under the Standard Option Plan, of which (i) 5,036,646 shares are issuable, as of the date hereof, upon the exercise of outstanding, unexercised stock options granted pursuant to the Standard Option Plan (the "STANDARD OPTIONS"), (ii) 178,285 shares are available for grant but have not yet been granted pursuant to the Standard Option Plan, 12,249,907 of which are subject to outstanding options under the Option Plan as of December 31, 1998 and has reserved 1,000,000 (iii) 757,131 shares for the Purchase Plan, none of which are have been issued and outstandingare outstanding pursuant to the prior exercise of stock options or other stock rights granted pursuant to the Standard Option Plan. The No outstanding Standard Option permits payment of the exercise price therefor by any means other than cash or check. All outstanding Standard Options (collectively, the "COMPANY OPTIONS") have been offered, issued and delivered by the Company has issued warrants to purchase 6,988,764 shares in compliance in all material respects with all applicable federal, state, foreign or local statutes, laws, rules or regulations, including federal and state securities laws. SCHEDULE 2.3(B) sets forth for each outstanding Company Option, the name of Common Stockthe holder of such option, all the domicile address of which are outstanding. The Company has reserved 6,988,764 such holder, an indication of whether such holder is an employee of the Company, the date of grant or issuance of such option, the number of shares of Company Common Stock for issuance upon subject to such option, the exercise price of such warrantsoption, the vesting schedule for such option, including the extent vested to the date of this Agreement and whether and to what extent the exercisability of such option will be accelerated and become exercisable as a result of the transactions contemplated by this Agreement, and whether such option is a Nonstatutory Option or an incentive stock option as defined in Section 422 of the Code. Except as described in this Section 2.4(b)for the Company Options, there are no options, warrants, calls, rights, convertible securities, commitments or agreements of any character, written or oral, to which the Company or any of its Subsidiaries is a party or by which it the Company or any of its Subsidiaries is bound obligating the Company or any Subsidiary to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the Company Capital Stock or any capital stock of any Subsidiary or obligating the CompanyCompany or any Subsidiary to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or other similar rights with respect to the Company or any of its Subsidiaries. Except as set forth in SCHEDULE 2.3(B), (i) there are no voting trusts, proxies, or other agreements or understandings with respect to the voting stock of the Company or any of its Subsidiaries to which the Company or any of its Subsidiaries is a party, by which the Company or any of its Subsidiaries is bound, or of which the Company has knowledge, and (ii) there are no agreements or understandings to which the Company or any of its Subsidiaries is a party, by which the Company or any of its Subsidiaries is bound, or of which the Company has knowledge relating to the registration, sale or transfer (including agreements relating to rights of first refusal, "co-sale" rights or "drag-along" rights) of any Company Capital Stock. The holders of Company Options and Preferred Stock have been or will be properly given, or shall have properly waived, any required notice prior to the Merger.
Appears in 1 contract
Company Capital Structure. (a) Immediately prior to Closing, the The authorized capital stock of the Company will consist consists of 100,000,000 17,500,000 shares of authorized Common Stock, $.001 0.01 par value, of which 11,773,997 2,032,065 shares are issued and outstanding as of December 31, 1998 and of which 10,000,000 are designated Class B Common, none of which are outstanding, and 50,000,000 7,213,329 shares of authorized Preferred Stock, $.001 0.10 par value. The authorized Preferred Stock consists of 1,000,000 shares designated as Series A Preferred Stock, of which 750,000 1,000,000 are issued and outstanding, 2,133,775 shares are designated as Series A B Preferred Stock, all of which are issued and outstanding, 17,100,003 424,364 shares are designated as Series B PreferredB-1 Preferred Stock, all of which are issued and outstanding, 11,149,287 2,542,036 shares are designated as Series C PreferredPreferred Stock, 396,159 of which 2,359,279 are issued and outstanding, 78,654 shares designated as Series C-1 Preferred Stock, all of which are outstandingissued and outstanding and 1,034,500 shares designated as Series D Preferred Stock, 6,000,000 shares are designated Series C-1 Preferred, 2,701,049 of which 947,692 are issued and outstanding, 5,000,000 shares are designated Series D Preferred, none of which are outstanding and 5,000,000 shares are designated Series D-1 Preferred, 2,083,334 of which are outstanding (collectively, the ". The Company Capital Stock"Stock is held of record by the persons, with the addresses of record and in the amounts set forth on Schedule 2.2(a). Except as provided in the Stockholders Rights Agreement, all All outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable, are assessable and not subject to preemptive rights created by statute, the Certificate of Incorporation or Bylaws of the Company or any agreement to which the Company is a party or by which it is bound and have been issued in compliance with federal and state securities laws. The Company has no other capital stock authorized, issued or outstandingbound.
(b) Except for the Company's 1997 Stock Option Plan (the "Option Plan") and the 1998 Employee Stock Purchase Plan (the "Purchase Plan"), the Company has never adopted or maintained any stock option plan or other plan providing for equity compensation of any person. The Company has reserved 15,520,342 2,536,465 shares of Company Common Stock for issuance to employees, directors employees and consultants pursuant to the Option Plan, 12,249,907 of which 2,018,611 shares are subject to outstanding, unexercised options and 444,104 shares remain available for future grant. Schedule 2.2(b) sets forth for each outstanding options under Company Option the Option Plan as name of December 31the holder of such option, 1998 and has reserved 1,000,000 shares for the Purchase Planstate in which each such holder is domiciled, none the number of which are issued and outstanding. The Company has issued warrants to purchase 6,988,764 shares of Common StockStock subject to such option, all of which are outstanding. The Company has reserved 6,988,764 shares of Company Common Stock for issuance upon the exercise price of such warrantsoption, including the extent vested to date and whether the exercisability of such option will be accelerated and become exercisable by the transactions contemplated by this Agreement. Except as described in this Section 2.4(bSchedule 2.2(b), there are no options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which the Company is a party or by which it is bound obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital stock of the Company. Except as described in Schedule 2.2(b), there are no options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which the Company is a party or by which it is bound obligating the Company to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. The holders of Company Options or any other options or rights set forth in Schedule 2.2(b) have been or will be given, or shall have properly waived, any required notice prior to the Merger. As a result of the Merger, Parent will be the record and sole beneficial owner of all Company Capital Stock and rights to acquire or receive Company Capital Stock.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Level 8 Systems)
Company Capital Structure. (a) Immediately prior to ClosingAs of the date hereof, the authorized capital stock of the Company will consist of 100,000,000 consists of: (i) 45,350,000 shares of authorized Company Common Stock, $.001 par value, of which 11,773,997 8,422,721 shares are issued and outstanding as of December 31, 1998 and of which 10,000,000 are designated Class B Common, none of which are outstanding, and 50,000,000 (ii) 33,650,000 shares of authorized Company Preferred Stock, $.001 par value, of which 750,000 (A) 17,650,000 shares are designated Series A One Preferred Stock, all 14,308,099 shares of which are outstanding, 17,100,003 issued and outstanding (all such issued and outstanding shares of Company Preferred Stock are Series One Preferred Stock) and (B) 16,000,000 shares are designated Series B PreferredTwo Preferred Stock, all no shares of which are issued and outstanding, 11,149,287 shares are designated Series C Preferred, 396,159 of which are outstanding, 6,000,000 shares are designated Series C-1 Preferred, 2,701,049 of which are outstanding, 5,000,000 shares are designated Series D Preferred, none of which are outstanding and 5,000,000 shares are designated Series D-1 Preferred, 2,083,334 of which are outstanding (collectively, the ". The Company Capital Stock"). Except as provided Stock is held of record by the persons, with the addresses, in the Stockholders Rights Agreementamounts, all with the stock certificate numbers and was issued on the dates set forth in Section 2.2(a) of the Company Disclosure Letter. All outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable, are assessable and not subject to preemptive rights created by statute, the Certificate Articles of Incorporation or Bylaws of the Company or any agreement to which the Company is a party or by which it is bound which have not been complied with or waived by the holders of such rights.
(b) As of the date of this Agreement, the Company has reserved (i) 14,254,339 shares of Company Capital Stock for issuance to employees and have been issued consultants pursuant to the Company’s 1996 Stock Option Plan (the “1996 Plan”), of which 6,734,654 shares are subject to outstanding, unexercised options and 7,377,111 shares remain available for future grant, and (ii) 850,000 shares of Company Capital Stock for issuance to employees and consultants pursuant to the Company’s 1988 Incentive Stock Plan (the “1988 Plan” and together with the 1996 Plan, the “Option Plans”), of which 105,500 shares are subject to outstanding, unexercised options and no shares remain available for future grant. Section 2.2(b)(i) of the Company Disclosure Letter sets forth for each outstanding Company Option, Company Warrant and Company Convertible Note, the name of the holder of such option, warrant or note, the domicile address of such holder, the number of shares of Company Capital Stock issuable upon the exercise or conversion of such option, warrant or note, the exercise or conversion price of such option, warrant or note, the grant date and vesting commencement date for such option, warrant or note, the vesting schedule for such option, warrant or note, including the extent vested to date and whether the vesting of such option, warrant or note is subject to acceleration as a result of the transactions contemplated by this Agreement or any other events (including a complete description of any such acceleration provisions), and whether such option is a nonstatutory option or intended to qualify as an incentive stock option as defined in compliance with federal Section 422 of the Code and, to the extent known by the Company, the type of entity of such holder and state securities lawsany ultimate parent of such holder. The Company has reserved no shares of Company Capital Stock for issuance upon exercise of outstanding Company Options except those granted under the Option Plans. The Company has no other capital stock authorized, issued or outstanding.
(b) Except for the Company's 1997 Stock Option Plan (the "Option Plan") and the 1998 Employee Stock Purchase Plan (the "Purchase Plan"), the Company has never adopted or maintained any stock option plan or other plan providing for equity compensation of any person. The Company has reserved 15,520,342 outstanding shares of Company Common Stock for issuance to employees, directors and consultants pursuant to the Option Plan, 12,249,907 of which are subject to outstanding options under the Option Plan as of December 31, 1998 and has reserved 1,000,000 shares for the Purchase Plan, none of which are issued and outstanding. The Company has issued warrants to purchase 6,988,764 shares of Common Restricted Stock, all of which are outstanding. The Company has reserved 6,988,764 shares of Company Common Stock for issuance upon the exercise of such warrants. Except as described set forth in this Section 2.4(b)2.2(a) and Section 2.2(b) of the Company Disclosure Letter, there are no options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which the Company is a party or by which it is bound obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of Company Capital Stock or obligating the capital stock Company to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. At the Effective Time, Parent will be the record and sole beneficial owner of all Company Capital Stock and rights to acquire or receive such Company Capital Stock. Except as contemplated by this Agreement or as set forth in Section 2.2(b)(i) of the Company Disclosure Letter, there are no rights agreements, voting trusts, proxies or other similar agreement or understanding to which the Company is a party or by which it is bound or of which it has Knowledge with respect to any Company Capital Stock or Company Convertible Security. All securities of the Company have been issued or repurchased (in the case of securities that were outstanding and repurchased by the Company or any shareholder of the Company) in compliance with all applicable Law, including federal and state securities laws, and were issued, transferred and repurchased (in the case of securities that were outstanding and repurchased by the Company or any shareholder of the Company) in accordance with any right of first refusal or similar right or limitation. Except for (i) loans made to the Company by Parent, (ii) loans set forth in Section 2.2(b) of the Company Disclo sure Letter and (iii) reimbursement obligations for expenses incurred on behalf of the Company in accordance with the Company’s policies, the Company does not have any outstanding loans or indebtedness to any holder of Company Capital Stock or employee or director.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Cypress Semiconductor Corp /De/)
Company Capital Structure. (a) Immediately prior to Closing, the The authorized capital stock of the Company will consist consists of 100,000,000 60,000,000 shares of authorized Company Common Stock, $.001 par value, of which 11,773,997 6,695,159 shares are issued and outstanding as of December 31, 1998 and of which 10,000,000 are designated Class B Common, none of which are outstanding, and 50,000,000 33,781,307 shares of Company Preferred Stock, $.001 par value, of which 750,000 6,526,667 shares are have been designated Series A Preferred Stock, all of which 6,526,667 shares are issued and outstanding, 17,100,003 9,423,261 shares are have been designated Series B PreferredPreferred Stock, all of which 9,391,072 are issued and outstanding, 11,149,287 7,331,379 shares are have been designated Series C PreferredPreferred Stock, 396,159 of which 7,331,379 are issued and outstanding, 6,000,000 and 10,500,000 shares are designated Series C-1 Preferred, 2,701,049 of which are outstanding, 5,000,000 shares are have been designated Series D PreferredPreferred Stock, none of which 1,724,763 are outstanding issued and 5,000,000 shares are designated Series D-1 Preferred, 2,083,334 outstanding. As of which are outstanding (collectivelythe date hereof, the "capitalization of the Company is as set forth in Section 2.2(a)(i) of the Disclosure Schedule. The Company Capital Stock"). Except as provided Stock is held by the Persons in the Stockholders Rights Agreement, all numbers of shares set forth in Section 2.2(a)(i) of the Disclosure Schedule. All outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable, assessable and are not subject to preemptive rights created by statute, the Certificate of Incorporation or Bylaws Charter Documents of the Company Company, or any agreement to which the Company is a party or by which it is bound bound, and together with all Company Options and Company Warrants have been issued in compliance with all applicable federal and state securities lawsLaws. The Company has not, and will not have, suffered or incurred any liability (contingent or otherwise) or claim, loss, damage, deficiency, cost or expense relating to or arising out of the issuance or repurchase of any Company Capital Stock or options or warrants to purchase Company Capital Stock, or out of any agreements or arrangements relating thereto (including any amendment of the terms of any such agreement or arrangement). Except as set forth in Section 2.2(a)(ii) of the Disclosure Schedule, there are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Stock. The Company has no other capital stock other than the Company Capital Stock authorized, issued or outstanding. Except as set forth in Section 2.2(a)(iii) of the Disclosure Schedule, the Company has no Company Capital Stock that is unvested.
(b) Except for the Company's 1997 Stock Option Plan (Plans or as set forth in Section 2.2(b) of the "Option Plan") and the 1998 Employee Stock Purchase Plan (the "Purchase Plan")Disclosure Schedule, the Company has never adopted adopted, sponsored or maintained any stock option plan or any other plan or agreement providing for equity compensation of to any personPerson. The Company has reserved 15,520,342 4,500,231 shares of Company Common Stock for issuance to employeesemployees and directors of, directors and consultants pursuant to to, the Option PlanCompany upon the issuance of stock or the exercise of options granted under the Plans or any other plan, 12,249,907 agreement or arrangement (whether written or oral, formal or informal), of which 3,204,209 shares are subject to outstanding options under the Option Plan issuable, as of December 31the date hereof, 1998 and has reserved 1,000,000 shares upon the exercise of outstanding, unexercised options. Except for the Purchase PlanCompany Options and Company Warrants set forth in Section 2.2(b) of the Disclosure Schedule (such schedule to contain, none for each holder of which are issued Company Options and outstanding. The Company has issued warrants to purchase 6,988,764 shares Warrants, the name of Common Stocksuch holder, all the number of which are outstanding. The Company has reserved 6,988,764 shares of Company Common Stock for issuance issuable upon the exercise of such warrants. Except as described in this Section 2.4(bCompany Options or Company Warrants held by such holder, the vesting schedule and exercise price of such Company Options and Company Warrants, the dates on which such Company Options were granted and will expire, and whether any Company Options are intended to be incentive stock options under the Code), there are no options, warrants, calls, rights, convertible securities, commitments or agreements of any character, written or oral, to which the Company is a party or by which it the Company is bound obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital Company Capital Stock or obligating the Company to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or other similar rights with respect to the Company. Except as contemplated hereby, there are no voting trusts, proxies, or other agreements or understandings with respect to the voting securities of the Company. Except as set forth in Section 2.2(b) of the Disclosure Schedule, there are no agreements to which the Company is a party relating to the registration, sale or transfer (including agreements relating to rights of first refusal, co-sale rights or “drag-along” rights) of any Company Capital Stock.
Appears in 1 contract
Company Capital Structure. (a) Immediately prior to Closing, the The authorized capital stock of the Company will consist of 100,000,000 shares of authorized consists of: 59,894,020 Company Common Stock, $.001 par valueShares, of which 11,773,997 20,895,116 voting shares and 2,933,617 non-voting shares are issued and outstanding as of December 31, 1998 the Agreement Date and of which 10,000,000 are designated Class B Common, none of which are outstanding, and 50,000,000 shares of 10,166,533 Company Preferred Stock, $.001 par valueShares, of which 750,000 9,974,533 shares are designated Series A Preferred Stock, all issued and outstanding as of which are outstanding, 17,100,003 shares are designated Series B Preferred, all of which are outstanding, 11,149,287 shares are designated Series C Preferred, 396,159 of which are outstanding, 6,000,000 shares are designated Series C-1 Preferred, 2,701,049 of which are outstanding, 5,000,000 shares are designated Series D Preferred, none of which are the Agreement Date. The outstanding and 5,000,000 shares are designated Series D-1 Preferred, 2,083,334 of which are outstanding (collectively, the "Company Capital Stock"Shares, as of the Agreement Date, including all shares subject to the Company’s right of repurchase, are held of record and beneficially by the Persons with the addresses on record with the Company and in the amounts set forth on Schedule 2.6(a). Except as provided in the Stockholders Rights Agreement, all Each Company Preferred Share is convertible into one Company Common Share. All outstanding shares of Company Capital Stock Shares (i) have been duly authorized and validly issued and are duly authorizedfully paid, validly issued, fully paid and non-assessableassessable and, are except for the Company Preferred Shares, not subject to preemptive rights or similar rights created by statute, the Company Certificate of Incorporation Incorporation, the Company’s By-Laws or Bylaws of any Contract to which the Company or any agreement to which the Company Subsidiary is a party or by which it the Company or any Subsidiary is bound bound, and (ii) have been offered, sold, issued and delivered by the Company in compliance with all applicable Laws, including federal and state securities lawsLaws. The Except as set forth on Schedule 2.6(a), there are no declared or accrued but unpaid dividends with respect to any Company has no other capital stock authorized, issued or outstandingCapital Shares.
(bi) Except for the Company's 1997 ’s Second Amended and Restated 2004 Stock Option Plan and Incentive Plan, as amended (the "Option “Company Equity Incentive Plan") and the 1998 Employee Stock Purchase Plan (the "Purchase Plan"”), neither the Company nor any Subsidiary has never adopted ever adopted, sponsored or maintained any stock option plan or any other plan providing for issuance of equity compensation of to any personPerson. The Company Equity Incentive Plan has been duly authorized, approved and adopted by the Company Board and the Stockholders and is in full force and effect. The Company has reserved 15,520,342 shares of Company Common Stock for issuance to employeesEmployees of, directors and consultants pursuant to to, the Option Company and its Subsidiaries 10,707,022 Company Common Shares under the Company Equity Incentive Plan, 12,249,907 of which are subject to outstanding options under the Option Plan which, as of December 31the Agreement Date, 1998 and has reserved 1,000,000 shares for the Purchase Plan, none of which are issued and outstanding. The Company has issued warrants to purchase 6,988,764 shares of Common Stock, all of which are outstanding. The Company has reserved 6,988,764 shares of (i) 6,783,445 Company Common Stock for issuance Shares are issuable upon the exercise of outstanding unexercised Company Options, (ii) 414,844 Company Common Shares are available for grant but have not yet been granted, and (iii) 1,350,000 Company Common Shares are subject to vesting and/or other purchase, repurchase or redemption restrictions in favor of the Company. All outstanding Company Options and Company Restricted Stock have been offered, issued and delivered by the Company in compliance with all applicable Laws and in compliance with the terms and conditions of the Company Equity Incentive Plan. Schedule 2.6(b) sets forth for each outstanding Company Option and Company Restricted Stock, the name of the holder of such warrantsoption or restricted stock, as applicable, the domicile address of such holder on record with the Company, an indication of whether such holder is a current employee of the Company or a Subsidiary (and if not a current employee of the Company or a Subsidiary, the Allocation Certificate will indicate the date of termination of such holder’s employment or service), the date of grant or issuance of such option or restricted stock, as applicable, the number of Company Common Shares subject to such option or restricted stock grant, as applicable, the expiration date of such option, the exercise price of such option, the vesting schedule for such option or restricted stock, including the extent to which such option or restricted stock is vested as of the Agreement Date and whether and to what extent the exercisability or vesting of such option or restricted stock will be accelerated and become exercisable or vested as a result of the Merger or the Upstream Merger and whether such option is a Nonstatutory Option or is intended to be an incentive stock option as defined in Section 422 of the Code.
(ii) As of the Agreement Date, the Company has outstanding warrants (each a “Company Warrant”) for the purchase of an aggregate of 160,000 Company Preferred Shares. All Company Warrants have been offered, issued and delivered by the Company in compliance with all applicable Laws. Schedule 2.6(b) sets forth for each outstanding Company Warrant, the name of the holder of such Company Warrant, the domicile address of such holder on record with the Company, an indication of whether such holder is a current Employee of the Company, the date of grant or issuance of such Company Warrant, the number of Company Preferred Shares subject to such Company Warrant and the exercise price of such Company Warrant.
(iii) Except as described in this Section 2.4(bfor the Company Options, Company Warrants and Company Restricted Stock set forth on Schedule 2.6(b), there are no options, warrants, calls, rights, commitments Company Stock Rights or agreements of any character, written or oral, Contracts to which the Company or any Subsidiary is a party or by which it the Company or any Subsidiary is bound obligating the Company or any Subsidiary to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares Company Capital Shares or any capital stock or equity or other ownership interest of any Subsidiary or obligating the Company or any Subsidiary to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such Company Stock Right. There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or other similar rights with respect to the Company or any Subsidiary. The Company has made available to Parent in the Data Room complete and accurate copies of the capital Company Equity Incentive Plan, forms of all Contracts evidencing Company Options and all Company Warrants. All of the Company Capital Shares subject to Company Options and Company Warrants will be, upon issuance pursuant to the exercise of such instruments, duly authorized, validly issued, fully paid and nonassessable.
(c) Except as set forth on Schedule 2.6(c), there are no (i) voting trusts, proxies, or other Contracts or understandings with respect to the voting of any stock of the CompanyCompany or any Subsidiary to which the Company or any Subsidiary is a party, by which the Company or any Subsidiary is bound, or of which the Company has knowledge, or (ii) Contracts or understandings to which the Company or any Subsidiary is a party, by which the Company or any Subsidiary is bound, or of which the Company has knowledge relating to the registration, sale or transfer (including Contracts relating to rights of first refusal, “co-sale” rights or “drag-along” rights) of any Company Capital Shares. The holders of Company Capital Shares, Company Options and Company Warrants have been or will be properly given, or shall have properly waived, any required notice prior to the Merger.
Appears in 1 contract
Samples: Merger Agreement (Red Hat Inc)
Company Capital Structure. (a) Immediately prior to Closing, the The authorized capital stock of the Company will consist consists of 100,000,000 10,000,000 shares of authorized Common Stock, $.001 par value, of which 11,773,997 2,930,000 shares are issued and outstanding as of December 31, 1998 and of which 10,000,000 are designated Class B Common, none of which are outstanding, and 50,000,000 2,100,000 shares of Preferred Stock, $.001 par value, of which 750,000 shares are designated authorized Series A Preferred Stock, all of which are outstanding, 17,100,003 1,600,000 shares are designated Series B Preferred, all of which are issued and outstanding, 11,149,287 shares are designated Series C Preferred, 396,159 of which are outstanding, 6,000,000 shares are designated Series C-1 Preferred, 2,701,049 of which are outstanding, 5,000,000 shares are designated Series D Preferred, none of which are outstanding and 5,000,000 shares are designated Series D-1 Preferred, 2,083,334 of which are outstanding (collectively, the ". The Company Capital Stock"Stock is held of record by the persons, with the addresses of record and in the amounts set forth on Schedule 2.2(a). Except as provided in the Stockholders Rights Agreement, all All outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable, are assessable and not subject to preemptive rights created by statute, the Certificate of Incorporation or Bylaws of the Company or any agreement to which the Company is a party or by which it is bound and have been issued in compliance with federal and state securities laws. The Company has no other capital stock authorized, issued or outstandingbound.
(b) Except for the Company's 1997 Stock Option Plan (the "Option Plan") and the 1998 Employee Stock Purchase Plan (the "Purchase Plan")As of January 16, 1997, the Company has never adopted or maintained any stock option plan or other plan providing for equity compensation of any person. The Company has had reserved 15,520,342 970,000 shares of Company Common Stock Stock, net of exercises, for issuance to employees, directors and consultants pursuant to the Option Plan, 12,249,907 of which 796,727 shares are subject to outstanding, unexercised options and 173,273 shares remain available for future grant. Schedule 2.2(b) sets forth for each outstanding options under Company Option the Option Plan as name of December 31the holder of such option, 1998 and has reserved 1,000,000 shares for the Purchase Planstate of domicile of such holder, none the number of which are issued and outstanding. The Company has issued warrants to purchase 6,988,764 shares of Common StockStock subject to such option, all of which are outstanding. The Company has reserved 6,988,764 shares of Company Common Stock for issuance upon the exercise price of such warrantsoption and the vesting schedule for such option, including the extent vested to date and whether the exercisability of such option will be accelerated and become exercisable by reason of the transactions contemplated by this Agreement. Except as for the Company Options described in Schedule 2.2(b), the Company Preferred Stock and this Section 2.4(b)Agreement, there are no options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which the Company is a party or by which it is bound obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital stock of the CompanyCompany or obligating the Company to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. The holders of Company Options have been or will be given, or shall have properly waived, any required notice prior to the Merger. As a result of the Merger, Parent will be the record and sole beneficial owner of all capital stock of the Company and rights to acquire or receive such capital stock.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Quickturn Design Systems Inc)
Company Capital Structure. (a) Immediately prior to ClosingAs of the Agreement Date, the authorized capital stock of the Company will consist consists of 100,000,000 (i) 43,140,737 shares of authorized Company Common Stock, $.001 0.00001 par value, of which 11,773,997 12,478,335 shares are issued and outstanding as of December 31, 1998 and of which 10,000,000 are designated Class B Common, none of which are outstanding, and 50,000,000 (ii) 19,494,460 shares of Company Preferred Stock, $.001 0.00001 par value, (A) 3,818,087 shares of which 750,000 are designated Series AA Preferred Stock and all of which are issued and outstanding, (B) 4,941,665 shares of which are designated Series A Preferred Stock, Stock and all of which are issued and outstanding, 17,100,003 (C) 2,487,765 shares of which are designated Series B Preferred, Preferred Stock and all of which are issued and outstanding, 11,149,287 (D) 3,453,528 shares of which are designated Series C Preferred, 396,159 Preferred Stock and all of which are outstanding, 6,000,000 issued and outstanding and (E) 4,793,415 shares are designated Series C-1 Preferred, 2,701,049 of which are outstanding, 5,000,000 shares are designated Series D Preferred, none Preferred Stock and all of which are issued and outstanding. Each share of Company Preferred Stock is convertible on a one-share for one-share basis into Company Common Stock, and there are no other issued and outstanding shares of Company Capital Stock and 5,000,000 no commitments or Contracts to issue any shares are designated Series D-1 Preferred, 2,083,334 of which are outstanding (collectivelyCompany Capital Stock other than pursuant to the conversion provisions related to the Company Preferred Stock pursuant to the Certificate of Incorporation, the "exercise of Company Capital Stock")Options and settlement of Company RSUs under the Company Equity Plan and the Company Warrants that are, in each case, outstanding as of the Agreement Date. Except as provided set forth in Section 3.2(a) of the Disclosure Schedule, the Company holds no treasury shares. Section 3.2(a) of the Disclosure Schedule sets forth, as of the Agreement Date, a correct and complete list of the Company Stockholders Rights Agreementand the number and type of such shares so owned by each such Company Stockholder, all and any beneficial holders thereof. All issued and outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessableassessable and are free of any Liens, are not subject to outstanding subscriptions, preemptive rights or “put” or “call” rights created by statute, the Certificate of Incorporation or Bylaws of the Company Charter Documents or any agreement Contract to which the Company is a party or by which it the Company or any of its assets is bound bound. The Company has never declared or paid any dividends on any shares of Company Capital Stock. There is no Liability for dividends accrued and have been unpaid by the Company. The Company is not under any obligation to register under the Securities Act or any other Law any shares of Company Capital Stock, any Company Securities or any other securities of the Company, whether currently outstanding or that may subsequently be issued. All issued and outstanding shares of Company Capital Stock and all Company Options were, in all material respects, issued in compliance with federal Law and state securities lawsall requirements set forth in the Charter Documents and any applicable Contracts to which the Company is a party or by which the Company or any of its assets is bound. The No shares of Company has no Capital Stock are subject to vesting, reverse vesting, forfeiture, a right of repurchase or to a “substantial risk of forfeiture” within the meaning of Section 83 of the Code, except for the shares of Company Common Stock set forth on Section 3.2(a)-1 (such shares set forth, or required to be set forth, in Section 3.2(a)-1 of the Disclosure Schedule, the “Restricted Shares”). Each Contract pursuant to which any Restricted Shares are subject to vesting or a right of repurchase or a substantial risk of forfeiture is set forth in Section 3.2(a)-1 of the Disclosure Schedule. Duly and properly completed elections under Section 83(b) of the Code were timely and properly filed with the IRS with respect to all of the Restricted Shares and any other capital stock authorizedshares of Company Capital Stock, issued or outstandingif any, that at any time were subject to a “substantial risk of forfeiture” within the meaning of Section 83 of the Code.
(b) Except for As of the Company's 1997 Stock Option Plan (the "Option Plan") and the 1998 Employee Stock Purchase Plan (the "Purchase Plan")Agreement Date, the Company has never adopted or maintained any stock option plan or other plan providing for equity compensation of any person. The Company has reserved 15,520,342 11,875,374 shares of Company Common Stock for issuance to employees, non-employee directors and consultants pursuant to the Option Company Equity Plan, 12,249,907 of which 8,769,736 shares are subject to outstanding options and unexercised Company Options, and 2,104,082 shares remain available for issuance thereunder. Section 3.2(b)-1 of the Disclosure Schedule sets forth, as of the Agreement Date, a correct and complete list of all Company Optionholders, and each Company Option, whether or not granted under the Option Plan as of December 31, 1998 and has reserved 1,000,000 shares for the Purchase Company Equity Plan, none including the number of which are issued and outstanding. The Company has issued warrants to purchase 6,988,764 shares of Common Stock, all of which are outstanding. The Company has reserved 6,988,764 shares of Company Common Capital Stock for issuance upon subject to each Company Option, the number of such shares that are vested or unvested, the “date of grant” of such Company Option (as defined under Treasury Regulation 1.409A-1(b)(5)(vi)(B)), the vesting commencement date, the vesting schedule (and the terms of any acceleration thereof), the exercise price per share, the Tax status of such warrantsCompany Option under Section 422 of the Code (or any applicable foreign Tax Law), the term of each Company Option, the plan from which such Company Option was granted (if any), whether such Company Option was granted with an “early exercise” right in favor of the holder, and the country and state of residence of such Company Optionholder. Except All Company Options listed on Section 3.2(b)-1 of the Disclosure Schedule that are denoted as described incentive stock options under Section 422 of the Code so qualify. Section 3.2(b)-2 of the Disclosure Schedule indicates, as of the Agreement Date, which Company Optionholders are Persons that are not employees of the Company or any of its Subsidiaries (including non-employee directors, consultants, advisory board members, vendors, service providers or other similar Persons), including a description of the relationship between each such Person and the Company.
(c) With respect to the Company Options, (i) each grant of an option was duly authorized no later than the date on which the grant of such option was by its terms to be effective by all necessary corporate action, (ii) each award of Company Options has been made using the standard form award agreement under the Company Equity Plan, a correct and complete copy of which has been made available to Parent, (iii) no Company Options differ in this any material respect from such form agreement (other than any vesting acceleration provisions contained therein as indicated in Section 2.4(b3.2(c) of the Disclosure Schedule), and (iv) there is no agreement, arrangement or understanding (written or oral) to amend, modify or supplement any such award agreement in any case from the form made available to Parent. No shares of Company Capital Stock are subject to vesting as of the Agreement Date and no Company Options are “early exercisable” as of the Agreement Date. The treatment of Company Options and Company RSUs under Section 2.1 hereof is permitted under the Company Equity Plan, applicable Laws, and the underlying individual agreements for such equity awards. No Company Option that was granted so as to qualify as an incentive stock option as defined in Section 422 of the Code was early exercised by the holder of such Company Option.
(d) As of the Agreement Date, there are no optionsauthorized, warrantsissued or outstanding Company Securities other than shares of Company Capital Stock set forth on Section 3.2(a) of the Disclosure Schedule, callsCompany Options set forth on Section 3.2(b)-1 of the Disclosure Schedule and the Company Warrants. Other than pursuant to the Company Warrants or as set forth on Section 3.2(a), rightsSection 3.2(b)-1, commitments Section 3.2(c) or agreements Section 3.2(e) of the Disclosure Schedule, as of the Agreement Date, no Person holds any Company Securities, or is party to any Contract of any character, written or oral, character to which the Company or an Company Security Holder is a party or by which it or its assets is bound bound, (i) obligating the Company or such Company Security Holder to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares Company Securities or other rights to purchase or otherwise acquire any Company Securities, whether vested or unvested, other than written Contracts granting the Company the right to purchase unvested Company Securities upon termination of employment or service (which Contracts have been made available), or (ii) obligating the Company to grant, extend, accelerate the vesting or repurchase rights of, change the price of, or otherwise amend or enter into any Company Option or other Company Security.
(e) Section 3.2(e) of the Disclosure Schedule identifies as of the Agreement Date each Person with an offer letter or other Contract that contemplates a grant of Company Options or grant or issuance of other securities of the Company (including the number, series and class of shares, intended exercise price (had such Company Option been granted in the Ordinary Course of Business based on the offer letter or other Contract contemplating such grant, as applicable, that was executed by the Company or the applicable Company Subsidiary or otherwise in the Ordinary Course of Business in the absence of this Agreement and the transactions contemplated hereby) and vesting schedule (including, any accelerated vesting) if applicable), or who has otherwise been promised Company Options or other securities of the Company, which Company Options have not been granted, or other securities have not been granted or issued, as of the Agreement Date (each such individual required to be set forth on Section 3.2(e) of the Disclosure Schedule, an “Option Release Individual”).
(f) There is no Indebtedness of the Company (i) granting its holder the right to vote on any matters on which any Company Security Holder may vote (or that is convertible into, or exchangeable for, securities having such right) or (ii) the value of which is in any way based upon or derived from capital or voting stock of the Company (collectively, “Company Voting Debt”).
(g) There are no Contracts relating to voting of any Company Capital Stock (i) between or among the Company, on the one hand, and any Company Security Holder, on the other hand, and (ii) to the Knowledge of the Company, between or among any of the Company Security Holders. Except as set forth on Section 3.2(g) of the Disclosure Schedule, neither the Company Equity Plan nor any Contract of any character to which the Company is a party to or by which the Company or any of its assets is bound relating to any Company Options requires or otherwise provides for any accelerated vesting of any Company Options in connection with the transactions contemplated by this Agreement or upon termination of employment or service with the Company or Parent, or any other event, whether before, upon or following the Effective Time or otherwise.
Appears in 1 contract
Company Capital Structure. (a) Immediately prior to ClosingThe authorized Company Capital Stock consists of Twenty Million, the authorized capital stock of the Company will consist of 100,000,000 (20,000,000) shares of authorized Company Common Stock, $.001 no par value, of which 11,773,997 3,602,270 shares are issued and outstanding as of December 31, 1998 and of which 10,000,000 are designated Class B Common, none of which are outstandingthe date hereof, and 50,000,000 Eight Million, Six Hundred Thirty-Seven Thousand, Seven Hundred Eighty-One (8,637,781) shares of Preferred Stock, $.001 no par value, of which 750,000 2,330,000 shares are designated Series A Preferred Stock, all of which 2,330,000 shares are outstandingissued and outstanding as of the date hereof, 17,100,003 1,863,337 shares are designated Series B PreferredPreferred Stock, all 1,863,337 shares of which are outstandingissued and outstanding as of the date hereof, 11,149,287 and 4,444,444 shares are designated Series C PreferredPreferred Stock, 396,159 of which are outstanding, 6,000,000 1,115,004 shares are designated Series C-1 Preferred, 2,701,049 issued and outstanding as of which are outstanding, 5,000,000 shares are designated Series D Preferred, none of which are outstanding and 5,000,000 shares are designated Series D-1 Preferred, 2,083,334 of which are outstanding (collectively, the "date hereof. The Company Capital Stock"). Except as provided Stock is held by the persons, with the record addresses and in the Stockholders Rights Agreement, all amounts set forth in Section 2.3(a) of the Disclosure Schedule. All outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable, are assessable and not subject to preemptive rights created by statute, the Certificate Articles of Incorporation or Bylaws of the Company or any agreement to which the Company is a party or by which it is bound and have been issued in compliance with federal and state securities laws. There are no declared or accrued unpaid dividends with respect to any shares of the Company's Capital Stock. The Company has no other capital stock authorized, issued or outstanding.
(b) Except for the Company's 1997 Stock Option Plan (the "Option Plan") and the 1998 Employee Stock Purchase Plan (the "Purchase Plan"), the Company has never adopted or maintained any stock option plan or other plan providing for equity compensation of any person. The Company has reserved 15,520,342 1,442,000 shares of Company Common Stock for issuance to employees, directors employees and consultants pursuant to the 1997 Stock Option Plan, 12,249,907 634,294 shares of which are subject to outstanding unexercised options under the Option Plan as of December 31, 1998 the date hereof and has reserved 1,000,000 shares for the Purchase Plan, none of which are issued and outstanding. The Company has issued warrants to purchase 6,988,764 shares of Common Stock, all of which are outstanding. The Company has reserved 6,988,764 400,000 shares of Company Common Stock for issuance upon to a consultant pursuant to the exercise NSO Stock Option Plan, 300,000 shares of such warrantswhich are subject to outstanding unexercised options as of the date hereof. Except as described in set forth on Section 2.3(b) of the Disclosure Schedule, there is no outstanding Company Capital Stock which is subject to vesting. Section 2.3(b) of the Disclosure Schedule sets forth for each outstanding Company Option, the name and the domicile address of the holder, the number of shares of Company Common Stock subject to such Company Option, the exercise price of such Company Option, the vesting schedule of such Company Option including the extent to which such Company Option has vested to the date hereof and whether the vesting of such Company Option will be accelerated by reason of the transactions contemplated by this Agreement, and whether such Company Option is intended to qualify as an incentive stock option within the meaning of Section 2.4(b)422 of the Code. Section 2.3(b) of the Disclosure Schedule also sets forth the name of the holder of any Company Capital Stock subject to vesting, the number of shares of Company Capital Stock subject to vesting and the vesting schedule for such Company Capital Stock, including the extent vested to date. Except as set forth on Section 2.3(b) of the Disclosure Schedule, there are no options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which the Company is a party or by which it is bound obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital stock of the Company or obligating the Company to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or other similar rights with respect to the Company. There are no voting trusts, proxies, or other agreements or understandings with respect to the voting stock of the Company. As a result of the Merger, Parent will be the sole record and beneficial owner of all outstanding Company Capital Stock and all rights to acquire or receive any Company Capital Stock, whether or not such Company Capital Stock is outstanding.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Intraware Inc)
Company Capital Structure. (a) Immediately prior to ClosingAs of April 7, 1999, the authorized capital stock of the Company will consist consists of 100,000,000 125,000,000 shares of authorized Common Stock, $.001 0.001 par value, of which 11,773,997 11,162,113 shares are issued and outstanding as of December 31outstanding, 1998 and of which 10,000,000 8,000,000 shares are designated as Class B CommonCommon Stock, none of which are outstanding, and 50,000,000 45,000,000 shares of Preferred Stock, $.001 0.001 par value, of which 750,000 17,563,187 shares are designated as Series A B Preferred Stock, all 16,450,721 of which are outstanding, 17,100,003 18,198,413 shares are designated as Series B PreferredC Preferred Stock, all 18,009,405 of which are outstanding, 11,149,287 3,640,000 shares are designated as Series C PreferredD Preferred Stock, 396,159 none of which are outstanding, 6,000,000 and 3,640,000 shares are designated Series C-1 Preferred, 2,701,049 of which are outstanding, 5,000,000 shares are designated Series D Preferred, none of which are outstanding and 5,000,000 shares are designated as Series D-1 PreferredPreferred Stock, 2,083,334 1,536,362 of which are outstanding (collectively, the "Company Capital Stock"). Except as provided in the Stockholders Fifth --------------------- Amended and Restated Rights AgreementAgreement of the Company, all outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-non- assessable, are not subject to preemptive rights created by statute, the Second Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws of the Company or any agreement to which the Company is a party or by which it is bound and have been issued in compliance with federal and state securities laws. The Company has no other capital stock authorized, issued or outstanding.
(b) Except for as described in the Company's 1997 Stock Option Plan (the "Option Plan") and the 1998 Employee Stock Purchase Plan (the "Purchase Plan")Disclosure Letter, the Company has never adopted or maintained any stock option plan or other plan providing for equity compensation of any person. The Company has reserved 15,520,342 shares of Company Common Stock for issuance to employees, directors and consultants pursuant Without giving effect to the Option Planissuance of the Warrant, 12,249,907 of which are subject to outstanding options under the Option Plan as of December 31, 1998 and has reserved 1,000,000 shares for the Purchase Plan, none of which are issued and outstanding. The Company has issued warrants to purchase 6,988,764 1,802,377 shares of Common Stockthe Company's capital stock, all of which are outstanding. The Company has reserved 6,988,764 shares of Company Common Stock for issuance upon , which warrants are described in the exercise of such warrantsDisclosure Letter. Except as described in this Section 2.4(b)) or in the Disclosure Letter, there are no options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which the Company is a party or by which it is bound obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital stock of the Company.
Appears in 1 contract
Samples: Warrant and Rights Agreement (Northpoint Communications Group Inc)
Company Capital Structure. (a) Immediately prior to Closing, the authorized capital stock of the Company will consist of 100,000,000 shares of authorized Common Stock, $.001 par value, of which 11,773,997 11,722,116 shares are issued and outstanding as of December 3116, 1998 and of which 10,000,000 are designated Class B Common, none of which are outstanding, and 50,000,000 shares of Preferred Stock, $.001 par value, of which 750,000 shares are designated Series A Preferred Stock, all of which are outstanding, 17,100,003 shares are designated Series B Preferred, all of which are outstanding, 11,149,287 shares are designated Series C Preferred, 396,159 of which are outstanding, 6,000,000 shares are designated Series C-1 Preferred, 2,701,049 none of which are outstanding, 5,000,000 shares are designated Series D Preferred, none of which are outstanding and 5,000,000 shares are designated Series D-1 Preferred, 2,083,334 none of which are outstanding (collectively, the "Company Capital StockCOMPANY CAPITAL STOCK"). Except as provided in the Stockholders Rights Agreement, all outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable, are not subject to preemptive rights created by statute, the Certificate of Incorporation or Bylaws of the Company or any agreement to which the Company is a party or by which it is bound and have been issued in compliance with federal and state securities laws. The Company has no other capital stock authorized, issued or outstanding.
(b) Except for the Company's 1997 Stock Option Plan (the "Option PlanOPTION PLAN") and the 1998 Employee Stock Purchase Plan (the "Purchase PlanPURCHASE PLAN"), the Company has never adopted or maintained any stock option plan or other plan providing for equity compensation of any person. The Company has reserved 15,520,342 shares of Company Common Stock for issuance to employees, directors and consultants pursuant to the Option Plan, 12,249,907 12,358,723 of which are subject to outstanding options under the Option Plan as of December 3116, 1998 and has reserved 1,000,000 shares for the Purchase Plan, none of which are issued and outstanding. The Company has issued warrants to purchase 6,988,764 shares of Common Stock, all of which are outstanding. The Company has reserved 6,988,764 shares of Company Common Stock for issuance upon the exercise of such warrants. Except as described in this Section 2.4(b), there are no options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which the Company is a party or by which it is bound obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital stock of the Company.
Appears in 1 contract
Samples: Series C 1 Preferred Stock Purchase Agreement (Covad Communications Group Inc)
Company Capital Structure. (a) Immediately prior to ClosingThe authorized capital of the Company consists of 24,525,000 shares. 18,000,000 of the shares are designated as Common Stock, $0.0001 par value, 10,120,665 shares of which are issued and outstanding (assuming conversion of each share of Series A Preferred Stock of Buyer as of November 30, 1999 into one share of Common Stock). 5,000,000 of the authorized shares are designated as Series A Preferred Stock, $0.001 par value, no shares of which are issued and outstanding (assuming conversion of each share of Series A Preferred Stock of Buyer as of November 30, 1999 into one share of Common Stock). 1,525,000 of the shares are designated as Series B Preferred Stock, $0.0001 par value, 868,825 shares of which are issued and outstanding. All of the capital stock of the Company will consist of 100,000,000 shares of authorized Common Stock, $.001 par value, of which 11,773,997 shares are issued is held by the persons and outstanding as of December 31, 1998 and of which 10,000,000 are designated Class B Common, none of which are outstanding, and 50,000,000 shares of Preferred Stock, $.001 par value, of which 750,000 shares are designated Series A Preferred Stock, all of which are outstanding, 17,100,003 shares are designated Series B Preferred, all of which are outstanding, 11,149,287 shares are designated Series C Preferred, 396,159 of which are outstanding, 6,000,000 shares are designated Series C-1 Preferred, 2,701,049 of which are outstanding, 5,000,000 shares are designated Series D Preferred, none of which are outstanding and 5,000,000 shares are designated Series D-1 Preferred, 2,083,334 of which are outstanding (collectively, in the "Company Capital Stock"amounts set forth on SCHEDULE 2.2(a). Except as provided in the Stockholders Rights Agreement, all All outstanding shares of the Company Capital Common Stock are duly authorized, validly issued, fully paid and non-assessable, are assessable and not subject to preemptive rights created by statute, the Certificate of Incorporation or Bylaws of the Company or any agreement to which the Company is a party or by which it is bound bound. Any rights of first refusal and have been issued rights of repurchase in compliance with federal and state securities laws. The favor of the Company, if any, shall be waived in full by the Company has no other capital stock authorized, issued or outstandingas provided in Section 5.3 as a condition of Buyer's obligation to consummate the transactions contemplated by this Agreement.
(b) Except for the Company's 1997 Stock Option Plan (the "Option Plan") and the 1998 Employee Stock Purchase Plan (the "Purchase Plan"), the Company has never adopted or maintained any stock option plan or other plan providing for equity compensation of any person. The Company has reserved 15,520,342 1,315,500 shares of Company Common Stock for issuance to employees, directors employees and consultants pursuant to the Option Plan, 12,249,907 of which 1,315,500 shares are subject to outstanding, unexercised options and no shares remain available for future grant. SCHEDULE 2.2(b) sets forth for each outstanding options under option ("COMPANY OPTIONS"), the Option Plan as name of December 31the holder of such option, 1998 and has reserved 1,000,000 shares for the Purchase Plan, none number of which are issued and outstanding. The Company has issued warrants to purchase 6,988,764 shares of Common StockStock subject to such option, all of which are outstanding. The Company has reserved 6,988,764 shares of Company Common Stock for issuance upon the exercise price of such warrantsoption and the vesting schedule for such option. Except as for the Company Options described in this Section 2.4(bSchedule 2.2(b), there are no options, warrants, calls, rights, commitments or agreements of any character, written or oral, to which the Company is a party or by which it is bound obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the capital stock of the CompanyCompany or obligating the Company to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement.
Appears in 1 contract
Samples: Merger Agreement (Utstarcom Inc)
Company Capital Structure. (a) Immediately prior to Closing, the The authorized capital stock of the Company will consist of 100,000,000 consists of: (i) 65,000,000 shares of authorized Common Stock, $.001 par value, of which 11,773,997 19,592,886 shares are issued and outstanding as of December 31, 1998 and of which 10,000,000 are designated Class B Common, none of which are outstanding, and 50,000,000 (ii) 3,769,787 shares of Preferred Stock, $.001 par value, of which 750,000 shares are designated Series A F Preferred Stock, all of which are outstandingissued and outstanding and (iii) 35,720,102 shares of Preferred Stock, 17,100,003 of which (A) 6,893,746 shares are designated as Series B PreferredA Preferred Stock, of which 5,737,431 shares are issued and outstanding, (B) 3,207,198 shares are designated as Series A-1 Preferred Stock, of which 2,401,073 shares are issued and outstanding, (C) 2,366,864 shares are designated as Series A-2 Preferred Stock, all of which are issued and outstanding, 11,149,287 and (D) 23,252,294 shares are designated as Series C PreferredB Preferred Stock, 396,159 of which are outstanding, 6,000,000 13,252,294 shares are designated Series C-1 Preferred, 2,701,049 of which are outstanding, 5,000,000 shares are designated Series D Preferred, none of which are outstanding and 5,000,000 shares are designated Series D-1 Preferred, 2,083,334 of which are outstanding (collectively, the "Company Capital Stock"). Except as provided in the Stockholders Rights Agreement, all outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable, are not subject to preemptive rights created by statute, the Certificate of Incorporation or Bylaws of the Company or any agreement to which the Company is a party or by which it is bound and have been issued in compliance with federal and state securities laws. The Company has no other capital stock authorized, issued or outstanding.
(b) Except for the Company's 1997 Stock Option Plan (the "Option Plan") and the 1998 Employee Stock Purchase Plan (the "Purchase Plan"), the Company has never adopted or maintained any stock option plan or other plan providing for equity compensation of any person. The Company has reserved 15,520,342 shares of Company Common Stock for issuance to employees, directors and consultants pursuant to the Option Plan, 12,249,907 of which are subject to outstanding options under the Option Plan as of December 31, 1998 and has reserved 1,000,000 shares for the Purchase Plan, none of which are issued and outstanding. The Company has issued warrants to purchase 6,988,764 does not have any other shares of Common Stockcapital stock or any other equity or ownership interests of any kind authorized, all of which are designated, issued or outstanding. The Company has reserved 6,988,764 Capital Stock is held of record and, to the Company’s Knowledge, beneficially by the Persons in the amounts set forth on Schedule 2.6(a)(i). All outstanding shares of Company Common Capital Stock for issuance upon (i) have been duly authorized and validly issued and are fully paid, non-assessable and not subject to preemptive rights or similar rights created by statute, the exercise of such warrants. Except as described in this Section 2.4(b), there are no options, warrants, calls, rights, commitments Company’s Organizational Documents or agreements of any character, written or oral, Contract to which the Company is a party party, and (ii) have been offered, sold, issued and delivered by the Company in all material respects in compliance with the Investor Agreements, the Organizational Documents of the Company and all applicable Laws. There are no restrictions of any kind on the transfer of the outstanding shares of Capital Stock except those imposed by applicable foreign, federal and state securities Laws or pursuant to the Investor Agreements.
(b) There are no outstanding options, warrants, appreciation rights, or other rights to acquire Capital Stock, other than (A) Company Options representing in the aggregate the right to purchase 5,039,674 shares of Common Stock under the Company Equity Plan, (B) Company Options representing in the aggregate the right to purchase 250,000 shares of Common Stock outside of the Company Equity Plan, (C) Company Warrants representing in the aggregate the right to purchase 101,095 shares of Common Stock, (D) Company Warrants representing in the aggregate the right to purchase 1,000,000 shares of Series B Preferred Stock, and (E) the Company SAFEs. Except as otherwise set forth in this Section 2.6 and on Schedule 2.6(b), there are no (i) outstanding warrants, options, agreements, calls, convertible securities, performance units or other commitments or instruments pursuant to which the Company is or may become obligated to issue or sell any of its securities, (ii) outstanding obligations of the Company to repurchase, redeem or otherwise acquire outstanding equity interests of the Company or any securities convertible into or exchangeable for any equity interests of the Company, (iii) equity interests of the Company held in treasury, (iv) bonds, debentures, notes or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which equityholders of the Company may vote, (v) agreements or understandings, including voting trusts and proxies, among or by which it is bound obligating the Company or any other Persons with respect to the Capital Stock, or any rights thereto or thereof, or (vi) outstanding obligations of the Company to issue, sell, deliver, sell, repurchase or redeem, otherwise transfer or cause to be issued, delivered, sold, repurchased or redeemed, retire any shares of the capital stock equity interests of the Company.
(c) Except for the Investor Agreements, the Company SAFEs, Company Warrants and the Company Options, there are no (i) voting trusts, proxies or other Contracts or understandings with respect to any Company Securities to which the Company is a party, by which the Company is bound, or (ii) Contracts or understandings to which the Company is a party, by which the Company is bound, relating to the voting, registration, sale or transfer (including Contracts relating to rights of first refusal, “co-sale” rights or “drag-along” rights) of any Company Securities. The execution, delivery and performance of this Agreement and the Related Agreements and the consummation of the Transactions by the Company does not breach or violate any rights or obligations under the Investor Agreements of the Company or, to the Company’s Knowledge, any other party thereto that have not been complied with or waived.
Appears in 1 contract
Samples: Merger Agreement (Latch, Inc.)