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Common use of Company Capital Structure Clause in Contracts

Company Capital Structure. (a) The authorized capital stock of the Company consists solely of 140,000,000 shares of common stock, $0.01 par value per share, of which 117,521,524 shares are outstanding. The Company does not hold any shares of its capital stock in treasury. The Company Capital Stock is held by the Persons and in the amounts set forth in Section 2.2(a) of the Disclosure Schedule. (b) All outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable and are not subject to preemptive rights created by statute, the Charter Documents or any Contract to which the Company is a party or by which it is bound. All outstanding shares of Company Capital Stock have been issued or repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholder) in compliance with all applicable federal, state, foreign, or local statutes, Laws, rules or regulations, including federal and state securities Laws, and were issued, transferred and repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholder) in accordance with any right of first refusal or similar right or limitation, including those in the Charter Documents. The Company has not suffered or incurred any Liability (contingent or otherwise) or claim, loss or liability relating to or arising out of the issuance or repurchase of any Company Capital Stock, or out of any Contracts relating thereto (including any amendment of the terms of any such Contract). There are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Stock. Other than the Company Capital Stock set forth in Section 2.2(a) of the Disclosure Schedule, the Company has no other capital stock authorized, issued or outstanding. All of the issued and outstanding shares of Company Capital Stock have been offered, issued and sold by the Company in compliance in all material respects with all applicable federal and state securities or “blue sky” Laws. There is no Indebtedness having the right to vote on any matters on which the Stockholders may vote. (c) Except as set forth in Section 2.2(c) of the Disclosure Schedule, there are no (i) outstanding obligations, options, warrants, or other Contracts of any kind relating to the ownership interests of the Company or any Company Subsidiary, or securities convertible or exchangeable into Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary, or obligating the Company or any Company Subsidiary to issue or sell any shares of Company Capital Stock of, or any other equity or ownership interests in, the Company or such Company Subsidiary, (ii) outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of Company Capital Stock or other ownership or equity interests of the Company or such Company Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person, or (iii) voting trusts, stockholder agreements, registration rights agreements, proxies or other Contracts to which the Company is a party in effect with respect to the voting or transfer of any of the shares of Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary. Except for the Warrants, all outstanding rights and options set forth in Section 2.2(c) of the Disclosure Schedule were granted by the Company pursuant to the Stock Plan. In connection with the Closing, the Board shall adopt resolutions providing that, in accordance with the terms of the Warrants, such Warrants, if not exercised as of the Effective Time, shall terminate, be cancelled and cease to exist, and the holders thereof will have no rights in respect thereof. There are no Contracts to which the Company is a party 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 Stock. Except as set forth in Section 2.2(c) of the Disclosure Schedule, there is no outstanding Indebtedness from the Company or any Company Subsidiary to any Stockholder. As a result of the 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. (d) Except as set forth in Section 2.2(d) of the Disclosure Schedule, no event has occurred, and no circumstance or condition exists, that has resulted in, or that will or would reasonably be expected to result in, and there is no basis for, any liability of the Company or any Company Subsidiary to any current, former or alleged holder of securities of the Company or any Company Subsidiary in such Person’s capacity (or alleged capacity) as a holder of such securities.

Appears in 1 contract

Samples: Merger Agreement (Bioventus Inc.)

Company Capital Structure. (a) The authorized capital stock of the Company consists solely of 140,000,000 1000 shares of common stockClass A Common Stock, $0.01 1.00 par value per share, of which 117,521,524 100 shares are issued and outstanding, and 1000 shares of Series B Preferred Stock, no par value per share, of which no shares are issued and outstanding. The Company does not hold any shares of its capital stock in treasury. The Company Capital Stock is held by the Persons and in the amounts set forth in Section 2.2(a) of the Disclosure Schedule. (b) All outstanding shares of the capital stock of the Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable and are not subject to preemptive rights created by statute, the Charter Documents Articles of Incorporation or Bylaws of the Company or any Contract agreement to which the Company is a party or by which it is bound. All outstanding shares of Company Capital Stock bound and have been issued or repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholder) in compliance with all applicable federal, state, foreign, or local statutes, Laws, rules or regulations, including federal and state securities Laws, and were issued, transferred and repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholder) in accordance with any right of first refusal or similar right or limitation, including those in the Charter Documents. The Company has not suffered or incurred any Liability (contingent or otherwise) or claim, loss or liability relating to or arising out of the issuance or repurchase of any Company Capital Stock, or out of any Contracts relating thereto (including any amendment of the terms of any such Contract)laws. There are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Stockthe Company’s capital stock. Other than the Company Capital Stock set forth in Section Schedule 2.2(a) sets forth any restrictions as to the vesting of any of the Disclosure ScheduleCompany’s capital stock, including the number of shares subject to restriction, the Company has no holder thereof and the material terms of any such agreement. (b) ORA is and will be until immediately prior to the Closing the record and beneficial owner and holder of the Shares, free and clear of any charge, claim, community property interest, condition, equitable interest, lien, option, pledge, security interest, right of first refusal, or restriction of any kind, including any restriction on use, voting, transfer, receipt of income, or exercise of any other attribute of ownership. The Shares constitute and will constitute on the Closing Date, all the outstanding capital stock authorized, issued or outstanding. All of the issued Company. As a result of the Acquisition, Buyer will be the sole record and beneficial owner of all outstanding shares capital stock of Company Capital Stock have been offered, issued and sold by the Company in compliance in all material respects with all applicable federal and state securities or “blue sky” Laws. There is no Indebtedness having the right to vote on any matters on which the Stockholders may voteCompany. (c) Except as set forth in Section 2.2(c) of the Disclosure Schedule, there There are no (i) outstanding obligations, options, warrants, calls, rights, commitments or other Contracts agreements of any kind relating to the ownership interests of the Company character, written or any Company Subsidiaryoral, or securities convertible or exchangeable into Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary, or obligating the Company or any Company Subsidiary to issue or sell any shares of Company Capital Stock of, or any other equity or ownership interests in, the Company or such Company Subsidiary, (ii) outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of Company Capital Stock or other ownership or equity interests of the Company or such Company Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person, or (iii) voting trusts, stockholder agreements, registration rights agreements, proxies or other Contracts to which the Company is a party in effect with respect or by which it is bound obligating the Company to the voting issue, deliver, sell, repurchase or transfer of redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the shares of Company Capital Stock or other equity or ownership interests capital stock of the Company or obligating the Company to grant or enter into any Company Subsidiarysuch option, warrant, call, right, commitment or agreement. Except for the Warrantsas contemplated by this Agreement, all outstanding rights and options set forth in Section 2.2(c) of the Disclosure Schedule were granted by the Company pursuant to the Stock Plan. In connection with the Closing, the Board shall adopt resolutions providing that, in accordance with the terms of the Warrants, such Warrants, if not exercised as of the Effective Time, shall terminate, be cancelled and cease to exist, and the holders thereof will have there is no rights in respect thereof. There are no Contracts agreement, voting trust, proxy or other agreement or understanding to which the Company is a party relating or by which it is bound with respect to the registration, sale or transfer (including Contracts relating to rights of first refusal, co-sale rights or “drag-along” rights) any security of any Company Capital Stock. Except as set forth in Section 2.2(c) class of the Disclosure Schedule, there is no outstanding Indebtedness from the Company or any Company Subsidiary to any Stockholder. As a result of the 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 outstandingCompany. (d) Except as set forth in Section 2.2(d) of the Disclosure Schedule, no event has occurred, and no circumstance or condition exists, that has resulted in, or that will or would reasonably be expected to result in, and there is no basis for, any liability of the Company or any Company Subsidiary to any current, former or alleged holder of securities of the Company or any Company Subsidiary in such Person’s capacity (or alleged capacity) as a holder of such securities.

Appears in 1 contract

Samples: Stock Purchase Agreement (Monaco Coach Corp /De/)

Company Capital Structure. (a) The authorized capital stock of the Company consists solely of 140,000,000 (i) one thousand five hundred (1,500) authorized shares of common stock, $0.01 stock no par value per share(the “Company Capital Stock”), of which 117,521,524 one thousand (1,000) shares are issued and outstanding as of the date hereof and (ii) no shares of preferred stock are authorized, issued or outstanding. The Company does not hold any Seller is, and immediately before the Closing will be, the record and beneficial owner of all of the issued and outstanding shares of its capital stock in treasurythe Company, free and clear of all Encumbrances. The Five hundred (500) shares of Company Capital Stock is held by the Persons are currently unissued and in the amounts set forth in Section 2.2(a) are not outstanding. All of the Disclosure Schedule. (b) All issued and outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable and are not subject to preemptive rights created by statute, the Charter Documents articles of incorporation or bylaws of the Company, or any Contract agreement to which the Company is a party or by which it is bound. All outstanding shares of Company Capital Stock , and have been issued or repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholder) in compliance with all applicable federal, state, foreign, or local statutes, Laws, rules or regulations, including federal and state securities Laws, and were issued, transferred and repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholder) in accordance with any right of first refusal or similar right or limitation, including those in the Charter Documents. The Company has not suffered or incurred any Liability (contingent or otherwise) or claim, loss or liability relating to or arising out of the issuance or repurchase of any Company Capital Stock, or out of any Contracts relating thereto (including any amendment of the terms of any such Contract)laws. There are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Stock. Other than the Company Capital Stock set forth in Section 2.2(a) of the Disclosure Schedule, the The Company has no other capital stock authorized, issued or outstanding. All of the issued and outstanding shares of Company Capital Stock have been offered, issued and sold by the Company in compliance in all material respects with all applicable federal and state securities or “blue sky” Laws. There is no Indebtedness having the right to vote on any matters on which the Stockholders may vote. (cb) Except as forth on Section 2.2(b) of the Disclosure Schedule, the Company does not presently have any stock option plan or other stock-related plan providing for equity compensation of any person. Except as set forth in Section 2.2(c2.2(b) of the Disclosure Schedule, there are no (i) outstanding obligations, options, warrants, calls, rights, commitments or other Contracts agreements of any kind relating to the ownership interests of the Company character, written or any Company Subsidiaryoral, or securities convertible or exchangeable into Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary, or obligating the Company or any Company Subsidiary to issue or sell any shares of Company Capital Stock of, or any other equity or ownership interests in, the Company or such Company Subsidiary, (ii) outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of Company Capital Stock or other ownership or equity interests of the Company or such Company Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person, or (iii) voting trusts, stockholder agreements, registration rights agreements, proxies or other Contracts to which the Company is a party in effect 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 and the Company is not obligated to grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any option, warrant, call, right, commitment or agreement upon the closing of the transaction contemplated hereby or upon the occurrence of any other event. There are no voting trusts, proxies, or other agreements or understandings with respect to the voting or transfer of any stock of the shares of Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary. Except for the Warrants, all outstanding rights and options set forth in Section 2.2(c) of the Disclosure Schedule were granted by the Company pursuant to the Stock Plan. In connection with the Closing, the Board shall adopt resolutions providing that, in accordance with the terms of the Warrants, such Warrants, if not exercised as of the Effective Time, shall terminate, be cancelled and cease to exist, and the holders thereof will have no rights in respect thereof. There are no Contracts to which the Company is a party 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 Stock. Except as set forth in Section 2.2(c) of the Disclosure Schedule, there is no outstanding Indebtedness from the Company or any Company Subsidiary to any Stockholder. As a result of the 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 outstandingCompany. (d) Except as set forth in Section 2.2(d) of the Disclosure Schedule, no event has occurred, and no circumstance or condition exists, that has resulted in, or that will or would reasonably be expected to result in, and there is no basis for, any liability of the Company or any Company Subsidiary to any current, former or alleged holder of securities of the Company or any Company Subsidiary in such Person’s capacity (or alleged capacity) as a holder of such securities.

Appears in 1 contract

Samples: Stock Purchase Agreement (Coachmen Industries Inc)

Company Capital Structure. (a) The authorized capital stock of the Company consists solely of 140,000,000 (i) 27,500,000 shares of common stock, $0.01 par value per shareCompany Common Stock, of which 117,521,524 9,048,152 shares are outstanding. The Company does not hold any issued and outstanding on the date hereof, and (ii) 10,100,000 shares of its capital stock in treasuryCompany Class A Common Stock, of which 10,037,808 shares are issued and outstanding on the date hereof. The Company Capital Stock is held by the Persons and in the amounts set forth in Section 2.2(a2.5(a) of the Disclosure Schedule. Schedule which further sets forth for each such Person the number of shares held, class and/or series of such shares and the number of the applicable stock certificates representing such shares (b) if any). All outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable and are at the Effective Time will not be subject to preemptive rights created by statute, the Charter Documents Documents, or any Contract to which the Company is a party or by which it is boundContract. The Company does not hold any Company Capital Stock in its treasury. (b) All outstanding shares of Company Capital Stock and Company Options have been issued or repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholderstockholder of the Company) in compliance with all applicable federal, state, foreign, or local statutes, Laws, rules or regulations, including federal and state securities LawsLegal Requirements, and were issued, transferred and repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholderstockholder of the Company) in accordance with any right of first refusal or similar right or limitation, including those in limitation Known to the Charter DocumentsCompany. The Company has not, and will not have, suffered or incurred any Liability liability (contingent or otherwise) or claim, loss loss, liability, damage, deficiency, cost or liability expense relating to or arising out of the issuance or repurchase of any Company Capital Stock, or out of any Contracts agreements or arrangements relating thereto (including any amendment of the terms of any such Contractagreement or arrangement). Other than the Company Capital Stock set forth in Section 2.5(a) of the Disclosure Schedule, the Company has no other capital stock authorized, issued or outstanding. There are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Stock. Other than True, correct and complete copies of all agreements (c) Except for the Company Capital Stock Plans and except as set forth in on Section 2.2(a2.5(c) of the Disclosure Schedule, the Company does not currently maintain any stock option plan or any other plan or agreement providing for equity or equity-related compensation to any Person (whether payable in shares, cash or otherwise). The Company has reserved 5,303,966 shares of Company Common Stock for issuance to employees and directors of, and consultants to, the Company upon the issuance of stock or the exercise of options granted under the Plans, of which (i) 3,000,000 shares are issuable, as of the date hereof, upon the exercise of outstanding, unexercised options granted under the Plans, (ii) 16,666 shares have been issued upon the exercise of options granted under the Plans and remain outstanding as of the date hereof, (iii) no shares have been issued as other capital stock authorizedtypes of equity awards under the Plans and remain outstanding as of the date hereof, issued or outstandingand (iv) 2,287,300 shares remain available for future grant. All holders of Company Options are current employees or non-employee directors or independent contractors, advisors or consultants to or of the issued Company. No Company Option or other “stock right” (as defined in U.S. Treasury Department regulation 1.409A-1(1)): (A) has an exercise price that was less than the fair market value of the underlying equity as of the date such option or right was granted and no exercise price of any Company Option has been amended following the grant date of such Company Option to an exercise price less than the fair market value on the date of such amendment, (B) has any feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such Company Option or other stock rights, (C) has been granted after the Company’s incorporation, with respect to any class of stock of the Company that is not “service recipient stock” (within the meaning of applicable regulations under Section 409A), or (D) has ever been accounted for other than fully in accordance with GAAP in the Company’s Financials. (d) Section 2.5(d) of the Disclosure Schedule sets forth for each outstanding Company Option, the name of the holder, the type of award, the number of shares of Company Capital Stock have been offeredissuable upon the exercise of such Company Option, issued the date of grant, the exercise price and sold by the vesting status. (e) No bonds, debentures, notes or other indebtedness of the Company in compliance in all material respects with all applicable federal and state securities or “blue sky” Laws. There is no Indebtedness (i) having the right to vote on any matters on which stockholders may vote (or which is convertible into, or exchangeable for, securities having such right) or (ii) the Stockholders may votevalue of which is in any way based upon or derived from capital or voting stock of the Company, are issued or outstanding as of the date hereof. (cf) Except 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 is a party or by which 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 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 for the Company Options and except as set forth in on Section 2.2(c2.5(f) of the Disclosure Schedule, there are no (i) outstanding obligationsor authorized stock appreciation, optionsphantom stock, warrantsprofit participation, or other Contracts of any kind relating to the ownership interests equity-compensation rights of the Company (whether payable in shares, cash or any Company Subsidiary, or securities convertible or exchangeable into Company Capital Stock or other equity or ownership interests otherwise). Except as contemplated hereby and except as set forth on Section 2.5(f) of the Company or any Company SubsidiaryDisclosure Schedule, or obligating the Company or any Company Subsidiary to issue or sell any shares of Company Capital Stock of, or any other equity or ownership interests in, the Company or such Company Subsidiary, (ii) outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of Company Capital Stock or other ownership or equity interests of the Company or such Company Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person, or (iii) there are no voting trusts, stockholder agreementsproxies, registration rights agreements, proxies or other Contracts to which the Company is a party in effect agreements or understandings with respect to the voting or transfer of any stock of the shares of Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary. Except for the WarrantsCompany, all outstanding rights and options and, except as set forth in on Section 2.2(c2.5(f) of the Disclosure Schedule were granted by the Company pursuant to the Stock Plan. In connection with the ClosingSchedule, the Board shall adopt resolutions providing that, in accordance with the terms of the Warrants, such Warrants, if not exercised as of the Effective Time, shall terminate, be cancelled and cease to exist, and the holders thereof will have no rights in respect thereof. There there are no Contracts agreements to which the Company is a party relating to the registration, sale or transfer (including Contracts agreements relating to rights of first refusal, co-sale rights or “drag-along” rights) of any Company Capital Stock. Except as set forth in Section 2.2(c) of the Disclosure Schedule, there is no outstanding Indebtedness from the Company or any Company Subsidiary to any Stockholder. As a result of the 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. (d) Except as set forth in Section 2.2(d) of the Disclosure Schedule, no event has occurred, and no circumstance or condition exists, that has resulted in, or that will or would reasonably be expected to result in, and there is no basis for, any liability of the Company or any Company Subsidiary to any current, former or alleged holder of securities of the Company or any Company Subsidiary in such Person’s capacity (or alleged capacity) as a holder of such securities.

Appears in 1 contract

Samples: Merger Agreement (Simulations Plus, Inc.)

Company Capital Structure. (a) The authorized capital stock of the Company consists solely of 140,000,000 shares an unlimited number of Company Common Shares. As of the date of this Agreement, the Company has issued and outstanding 4,082,143 Company Common Shares and no Class B common stockshares. As of the date hereof and immediately prior to Closing, $0.01 par value per share, the capitalization of which 117,521,524 shares the Company is as set forth on Schedule 3.2(a). All outstanding Company Common Shares are outstanding. The Company does not hold any shares of its capital stock in treasury. The Company Capital Stock is held by the Persons and in Shareholders with the amounts domicile addresses as set forth in Section 2.2(a) of the Disclosure Schedule. (b) on Schedule 3.2(a). All outstanding shares of Company Capital Stock Common Shares are duly authorized, validly issued, fully paid paid, and non-assessable and are not subject to preemptive any pre-emptive rights created by statute, the Charter Documents Documents, or any Contract agreement to which the Company or any Shareholder is a party or by which it the Company or any Shareholder is bound. All outstanding shares of Company Capital Stock Common Shares have been issued or repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholder) in compliance with all applicable federal, state, foreign, or local statutes, Lawslaws, rules or rules, and regulations, including federal and state securities Laws, and were issued, transferred and repurchased (in the case of shares that were outstanding and repurchased by the provincial laws. No Company or any Stockholder) in accordance with any Common Shares are subject to a right of first refusal repurchase or similar right or limitation, including those in the Charter Documentsother condition of forfeiture. The Company has not, and will not have, suffered or incurred any Liability liability (contingent or otherwise) or claim, loss loss, liability, damage, deficiency, cost, or liability expense relating to or arising out of the issuance or repurchase of any Company Capital StockCommon Shares, or out of any Contracts agreements or arrangements relating thereto (including any amendment of the terms of any such Contract)thereto. There are no declared or accrued but unpaid dividends with respect to any Company Common Shares. There are no rights, subscriptions, warrants, options, conversion rights, calls, commitments or plans or agreements of any kind outstanding which would enable any individual or entity to purchase or otherwise acquire any shares or other securities of the Company. No vesting provisions applicable to any Company Capital Stock. Other than Common Shares, or to any rights to purchase (whether from the Company Capital Stock set forth in Section 2.2(aor any Shareholder) any Company Common Shares, will accelerate as a result of the Disclosure Schedule, the Share Purchase. (b) The Company has no delivered to Acquireco a true and complete copy of its Employee Stock Option Plan dated 6 January 2003 (the “Stock Option Plan”). Schedule 3.2(b) sets forth other capital stock authorizedagreements, issued whether formal or outstandinginformal, to provide for equity compensation to any person. All of the issued The Stock Option Plan and outstanding shares of Company Capital Stock any agreements for equity compensation have been offered, issued and sold by terminated in accordance with their terms effective immediately prior to the Company in compliance in all material respects with all applicable federal and state securities or “blue sky” Laws. There is no Indebtedness having the right to vote on any matters on which the Stockholders may voteClosing. (c) Except as set forth in Section 2.2(c) The Company has no unsatisfied commitment or obligation of the Disclosure Scheduleany character, there are no (i) outstanding obligationseither firm or conditional, optionswritten or oral, to issue, deliver or sell, or repurchase or redeem, or cause to be issued, delivered, sold, repurchased, or redeemed, under offers, stock option agreements, share bonus agreements, share purchase plans, incentive compensation plans, warrants, calls, conversion rights, or otherwise, any common shares or other Contracts of any kind relating to the ownership interests securities of the Company or any Company Subsidiary, or securities convertible or exchangeable into Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary, or obligating the Company or any Company Subsidiary to issue or sell any shares of Company Capital Stock of, or any other equity or ownership interests in, the Company or such Company Subsidiary, (ii) outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of Company Capital Stock or other ownership or equity interests of the Company or such Company Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person, or (iii) Company. There are no voting trusts, stockholder agreementsproxies, registration rights agreements, proxies or other Contracts agreements or understandings to which the Company is a party in effect with respect to the voting or transfer of any of the shares of Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary. Except for the Warrants, all outstanding rights and options set forth in Section 2.2(c) of the Disclosure Schedule were granted by the Company pursuant to the Stock Plan. In connection with the Closing, the Board shall adopt resolutions providing that, in accordance with the terms of the Warrants, such Warrants, if not exercised as of the Effective Time, shall terminate, be cancelled and cease to exist, and the holders thereof will have no rights in respect thereofCommon Shares. There are no Contracts to which the Company is a party relating (and have never been any) outstanding or authorized share appreciation, phantom shares, profit participation, or other similar rights with respect to the registrationCompany. Following the Closing, sale there will be no outstanding or transfer authorized share appreciation, phantom shares, profit participation, or other similar right with respect to the Company. (including Contracts relating d) At or before the Closing, any information rights, voting rights, rights of co-sale, rights to maintain equity percentage, rights of first refusal, co-sale rights or “drag-along” rights) and the like that may exist for the benefit of any Company Capital Stock. Except as set forth in Section 2.2(c) of the Disclosure Schedule, there is no outstanding Indebtedness from the Company such holder or any Company Subsidiary to any Stockholder. As a result of the Merger, Parent will be the sole record and beneficial prospective 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 outstandingshall have been terminated. (d) Except as set forth in Section 2.2(d) of the Disclosure Schedule, no event has occurred, and no circumstance or condition exists, that has resulted in, or that will or would reasonably be expected to result in, and there is no basis for, any liability of the Company or any Company Subsidiary to any current, former or alleged holder of securities of the Company or any Company Subsidiary in such Person’s capacity (or alleged capacity) as a holder of such securities.

Appears in 1 contract

Samples: Share Purchase Agreement (Pc Tel Inc)

Company Capital Structure. (a) The authorized capital stock of the Company consists solely of 140,000,000 16,500,000 shares of common stock, $0.01 par value per shareCommon Stock, of which 117,521,524 9,357,415 shares are issued and outstanding, and 1,125,000 shares Company Series A Preferred Stock, of which 1,125,000 shares are issued and outstanding. The Company does not hold any shares of its capital stock in treasurySeries A Preferred Stock is convertible on a one-share for one-share basis into Company Common Stock. The Company Capital Stock is held by the Persons and in the amounts set forth in Section 2.2(a) of the Disclosure Schedule. (b) Schedule which further sets forth for each such Person the number of shares held, class and/or series of such shares, the number of the applicable stock certificates representing such shares and the domicile addresses of record of such Persons. All outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable and are not subject to preemptive rights created by statute, the Charter Documents Documents, or any Contract agreement to which the Company is a party or by which it is bound. . (b) All outstanding shares of Company Capital Stock and Company Options have been issued or repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholdershareholder of the Company) in compliance with all applicable federal, state, foreign, or local statutes, Laws, rules or regulationsLegal Requirements, including federal and state securities Lawslaws, and were issued, transferred and repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholdershareholder of the Company) in accordance with any right of first refusal or similar right or limitationlimitation Known to the Company, including those in the Charter Documents. The No Shareholder has exercised any right of redemption, if any, provided in the Articles of Incorporation with respect to shares of the Company Series A Preferred Stock, and the Company has not suffered or incurred received notice that any Liability (contingent or otherwise) or claim, loss or liability relating Shareholder intends to or arising out of the issuance or repurchase of any Company Capital Stock, or out of any Contracts relating thereto (including any amendment of the terms of any exercise such Contract)rights. There are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Stock. Other than the Company Capital Stock set forth in Section 2.2(a) of the Disclosure Schedule, the Company has no other capital stock authorized, issued or outstanding. All of the issued and outstanding There are no shares of Company Capital Stock that are not vested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable stock restriction agreement or other agreement with the Company. (c) Except for the Plan, neither the Company nor any of its Subsidiaries has ever adopted, sponsored or maintained any stock option plan or any other plan or agreement providing for equity-related compensation to any person (whether payable in shares, cash or otherwise). The Company has reserved 5,706,048 shares of Company Common Stock for issuance to employees and directors of, and consultants to, the Company upon the issuance of stock or the exercise of options granted under the Plan, of which (i) 4,798,023 shares are issuable, as of the date hereof, upon the exercise of outstanding, unexercised options granted under the Plan, (ii) 1,333,344 shares have been offeredissued upon the exercise of options or purchase of restricted stock granted under the Plan and remain outstanding as of the date hereof and (iii) 107,378 shares remain available for future grant. Section 2.2(c) of the Disclosure Schedule sets forth for each outstanding Company Option, issued and sold by the name of the holder of such option, the domicile address of record of such holder, whether such holder is an employee of the Company or not an employee, the number of shares of Company Capital Stock issuable upon the exercise of such option, the date of grant of such option, the exercise price of such option, the vesting schedule for such option, including the extent vested to date, and whether such option is a nonstatutory option or intended to qualify as an incentive stock option as defined in compliance Section 422 of the Code. The terms of the Plan and the applicable agreements for each Company Option permit the termination of Company Options in exchange for cash payments as provided in this Agreement, without the consent or approval of the holders of such securities, the Shareholders or otherwise. True and complete copies of all material respects with all applicable federal agreements and state securities instruments relating to or “blue sky” Lawsissued under the Plan have been Made Available and such agreements and instruments have not been amended, modified or supplemented, and there are no agreements to amend, modify or supplement such agreements or instruments from the forms thereof Made Available. There is no Indebtedness No holder of Company Options has the ability to early exercise any Company Options for shares of unvested Company Common Stock under the Plan or any other Contract relating to such Company Options. All holders of Company Options are current employees (or recently terminated employees), non-employee directors, consultants or independent contractors of the Company. (d) No bonds, debentures, notes or other indebtedness of the Company (i) having the right to vote on any matters on which shareholders may vote (or which is convertible into, or exchangeable for, securities having such right) or (ii) the Stockholders may votevalue of which is in any way based upon or derived from capital or voting stock of the Company, are issued or outstanding as of the date hereof. (ce) Except as set forth in Section 2.2(c) As of the Disclosure Scheduledate hereof, no shares of Company Common Stock are issuable upon the exercise of outstanding Company Options that have not been granted under the Plan. Except for the Company Options, there are no (i) outstanding obligations, 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 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 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 Contracts of any kind relating similar rights with respect to the ownership interests Company or any of its Subsidiaries (whether payable in shares, cash or otherwise). Except as contemplated hereby, there are no voting trusts, proxies, or other agreements or understandings with respect to the voting stock of the Company or any Company Subsidiaryof its Subsidiaries, or securities convertible or exchangeable into Company Capital Stock or other equity or ownership interests of and there are no agreements to which the Company or any Company Subsidiary, or obligating the Company or any Company Subsidiary to issue or sell any shares of Company Capital Stock of, or any other equity or ownership interests in, the Company or such Company Subsidiary, (ii) outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of Company Capital Stock or other ownership or equity interests of the Company or such Company Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person, or (iii) voting trusts, stockholder agreements, registration rights agreements, proxies or other Contracts to which the Company is a party in effect with respect to the voting or transfer of any of the shares of Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary. Except for the Warrants, all outstanding rights and options set forth in Section 2.2(c) of the Disclosure Schedule were granted by the Company pursuant to the Stock Plan. In connection with the Closing, the Board shall adopt resolutions providing that, in accordance with the terms of the Warrants, such Warrants, if not exercised as of the Effective Time, shall terminate, be cancelled and cease to exist, and the holders thereof will have no rights in respect thereof. There are no Contracts to which the Company its Subsidiaries is a party relating to the registration, sale or transfer (including Contracts agreements relating to rights of first refusal, co-sale rights or “drag-along” rights) of any Company Capital Stock. Except as set forth in Section 2.2(c) of the Disclosure Schedule, there is no outstanding Indebtedness from the Company or any Company Subsidiary to any Stockholder. As a result of the 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. (df) Except as The allocation of the Total Closing Consideration, the Total CY12 Earnout Consideration and the Total CY13 Earnout Consideration set forth in Section 2.2(d1.6(b) hereof is consistent with the articles of the Disclosure Schedule, no event has occurred, and no circumstance or condition exists, that has resulted in, or that will or would reasonably be expected to result in, and there is no basis for, any liability incorporation of the Company or any Company Subsidiary as amended as of immediately prior to any current, former or alleged holder of securities the Effective Time. (g) The information contained in the Spreadsheet will be complete and correct as of the Closing Date. (h) There are no outstanding loans or indebtedness involving, on the one hand, the Company or and, on the other hand, any Company Subsidiary in such Person’s capacity (or alleged capacity) as a holder of such securitiesthe Shareholders.

Appears in 1 contract

Samples: Merger Agreement (Electronic Arts Inc.)

Company Capital Structure. (a) The authorized capital stock of the Company consists solely of 140,000,000 35,000,000 shares of common stock, $0.01 par value per shareCommon Stock, of which 117,521,524 19,245,080 shares are issued and outstanding, 7,597,882 shares of Series A Preferred Stock, of which 7,597,882 shares are issued and outstanding, and 5,102,040 shares of Series B Preferred Stock, of which 5,102,040 shares are issued and outstanding. The Company does not hold any shares Series A Preferred Stock and the Company Series B Preferred Stock are convertible on a one-share for one-share basis into Company Common Stock. As of its capital stock the date hereof, the capitalization of the Company is as set forth in treasurySection 2.2(a) of the Disclosure Schedule. The Company Capital Stock is held by the Persons persons with the domicile addresses and in the amounts set forth in Section 2.2(a) of the Disclosure Schedule. (b) , which further sets forth for each such person the number of shares held, class and/or series of such shares and the number of the applicable stock certificates representing such shares. All outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable and are not subject to preemptive rights created by statute, the Charter Documents Documents, or any Contract agreement to which the Company is a party or by which it is boundbound other than preemptive rights in favor of the Company or preemptive rights granted pursuant to the Amended and Restated Right of First Refusal and Co-Sale Agreement dated as of September 3, 2008. All outstanding shares of Company Capital Stock and Company Options have been issued or repurchased (in the case of shares that were outstanding and repurchased by the Company or any StockholderShareholder of the Company) in compliance with all applicable federal, state, foreign, or local statutes, Lawslaws, rules rules, or regulations, including federal and state securities Lawslaws, and were issued, transferred and repurchased (in the case of shares that were outstanding and repurchased by the Company or any StockholderShareholder of the Company) in accordance with any right of first refusal or similar right or limitation, including those in the Charter Documents. The Company has not, and will not have, suffered or incurred any Liability liability (contingent or otherwise) or claim, loss loss, liability, damage, deficiency, cost or liability expense relating to or arising out of the issuance or repurchase of any Company Capital StockStock or Company Options, or out of any Contracts agreements or arrangements relating thereto (including any amendment of the terms of any such Contractagreement or arrangement). There are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Stock. Other than the Company Capital Stock set forth in Section 2.2(a) of the Disclosure Schedule, the The Company has no other capital stock authorized, issued or outstanding. (b) Section 2.2(b) of the Disclosure Schedule sets forth for all holders of Company Unvested Common Stock, the name of the holder of such Company Unvested Common Stock, the date of purchase of such Company Unvested Common Stock, the purchase price of such Company Unvested Common Stock, the repurchase price of such Company Unvested Common Stock, whether such Company Unvested Common Stock was acquired pursuant the exercise of an incentive stock option and the vesting schedule for such Company Unvested Common Stock, including the grant date, the extent vested to date, whether the vesting of such Company Unvested Common Stock 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, to the Knowledge of the Company, the holder has made a timely election with the Internal Revenue Service under Section 83(b) of the Code with respect to such Company Unvested Common Stock. All holders of Company Unvested Common Stock are current employees of the issued and outstanding shares of Company Capital Stock have been offered, issued and sold by the Company in compliance in all material respects with all applicable federal and state securities or “blue sky” Laws. There is no Indebtedness having the right to vote on any matters on which the Stockholders may voteCompany. (c) Except as set forth in Section 2.2(c) for the Plan, neither the Company nor any of its Subsidiaries has ever adopted, sponsored or maintained any stock option plan or any other plan or agreement providing for equity compensation to any person. The Company has reserved 3,000,000 shares of Company Common Stock for issuance to employees and directors of, and consultants to, the Disclosure ScheduleCompany upon the issuance of stock or the exercise of options granted under the Plan, there are no of which (i) 820,000 shares are issuable, upon the exercise of outstanding, unexercised options granted under the Plan, (ii) 2,015,000 shares have been issued upon the exercise of options or purchase of restricted stock granted under the Plan and remain outstanding obligations, options, warrants, or other Contracts and (iii) 165,000 shares remain available for future grant. No shares of any kind relating to Company Common Stock are issuable upon the ownership interests exercise of outstanding Company Options that have not been issued under the Company or any Company Subsidiary, or securities convertible or exchangeable into Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary, or obligating the Company or any Company Subsidiary to issue or sell any Plan. No shares of Company Capital Stock of, or any other equity or ownership interests in, are issuable upon the exercise of outstanding Company or such Company Subsidiary, (ii) outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of Company Capital Stock or other ownership or equity interests of the Company or such Company Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person, or (iii) voting trusts, stockholder agreements, registration rights agreements, proxies or other Contracts to which the Company is a party in effect with respect to the voting or transfer of any of the shares of Company Capital Stock or other equity or ownership interests of the Company or any Company SubsidiaryWarrants. Except for the Warrants, all outstanding rights and options set forth in Section 2.2(c) of the Disclosure Schedule were granted by sets forth for each outstanding Company Option and Company Warrant, the name of the holder of such option, restricted stock unit or warrant, the domicile address of such holder, the number of shares of Company Capital Stock issuable upon the exercise of such option or warrant or pursuant to such restricted stock unit, the exercise price of such option or warrant, and whether such option is a nonstatutory option or intended to qualify as an incentive stock option as defined in Section 422 of the Code. True and complete copies of all agreements and instruments relating to or issued under the Plan have been provided to Parent and such agreements and instruments have not been amended, modified or supplemented, and there are no agreements to amend, modify or supplement such agreements or instruments from the forms thereof provided to Parent. (d) Except for the Company pursuant Options and Company Warrants, there are no options, warrants, calls, rights, convertible securities, commitments or agreements of any character, written or oral, to which the Stock Plan. In connection with Company or any of its Subsidiaries is a party or by which the ClosingCompany is bound obligating the Company to issue, the Board shall adopt resolutions providing thatdeliver, in accordance with the terms sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any shares of the Warrants, such Warrants, if not exercised as capital stock of the Effective TimeCompany or obligating the Company to grant, shall terminateextend, be cancelled and cease to existaccelerate the vesting of, and change the holders thereof will have no rights in respect thereofprice of, otherwise amend or enter into any such option, warrant, call, right, commitment or agreement. There are no Contracts outstanding or authorized stock appreciation, phantom stock, profit participation, or other similar rights with respect to the equity of the Company or any of its Subsidiaries (whether payable in equity, cash or otherwise). Except as contemplated hereby, 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. There are no agreements to which the Company or any of its Subsidiaries is a party relating to the registration, sale or transfer (including Contracts agreements relating to rights of first refusal, co-sale rights or “drag-along” rights) of any Company Capital Stock. Except as set forth in Section 2.2(c) of the Disclosure Schedule, there is no outstanding Indebtedness from the Company or any Company Subsidiary to any Stockholder. As a result of the 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. (de) Except as There are no outstanding loans to Shareholders. (f) The allocation of the Merger Consideration set forth in Section 2.2(d1.6(b) hereof is consistent with the articles of the Disclosure Schedule, no event has occurred, and no circumstance or condition exists, that has resulted in, or that will or would reasonably be expected to result in, and there is no basis for, any liability incorporation of the Company or any Company Subsidiary as amended as of immediately prior to any current, former or alleged holder of securities the Effective Time. (g) The information contained in the Spreadsheet will be complete and correct as of the Company or any Company Subsidiary in such Person’s capacity (or alleged capacity) as a holder of such securitiesClosing Date.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Taleo Corp)

Company Capital Structure. (a) The authorized capital stock of the Company consists solely of 140,000,000 shares of common stock, $0.01 par value per share1,333 Company Ordinary Shares, of which 117,521,524 1,333 shares are issued and outstanding. Except for the Company Ordinary Shares, no other shares of Company Capital Stock are authorized, issued or outstanding. The Company does not hold any issued and outstanding shares of its capital stock in treasury. The Company Capital Stock is are held by the Persons persons with the domicile addresses and in the amounts set forth in Section 2.2(a) on Exhibit A which further sets forth for each such person the number of the Disclosure Schedule. (b) shares held. All outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable and, except as provided in the Articles of Association and the Shareholders Agreement, are not subject to preemptive rights created by statute, the Charter Documents Documents, or any Contract agreement to which the Company is a party or by which it is bound. All outstanding shares of Company Capital Stock have been issued or repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholdershareholder of the Company) in compliance with all applicable federal, state, foreign, or local statutes, Lawslaws, rules rules, or regulations, including federal and state securities Lawslaws, and were issued, transferred and repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholdershareholder of the Company) in accordance with any right of first refusal or similar right or limitation, including those in the Charter Documents. The Company has not, and will not have, suffered or incurred any Liability liability (contingent or otherwise) or claim, loss loss, liability, damage, deficiency, cost or liability expense relating to or arising out of the issuance or repurchase of any Company Capital Stock, Stock or out of any Contracts agreements or arrangements relating thereto to such issuance or repurchase of any Company Capital Stock (including any amendment of the terms of any such Contractagreement or arrangement). There are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Stock. Other than the Company Capital Stock set forth in Section 2.2(a) of the Disclosure ScheduleExcept as noted above, the Company has no other capital stock authorized, issued or outstanding. All of the issued and outstanding shares of . (b) The Company Capital Stock have been offeredhas never adopted, issued and sold by the Company in compliance in all material respects with all applicable federal and state securities sponsored or “blue sky” Laws. There is no Indebtedness having the right maintained any stock option plan or any other plan or agreement providing for equity compensation to vote on any matters on which the Stockholders may votePerson. (c) Except as set forth in Section 2.2(c) of the Disclosure Schedulefor this Agreement, there are no (i) outstanding obligations, options, warrants, calls, rights, convertible securities, commitments or other Contracts agreements of any kind relating to the ownership interests of the Company character, written or any Company Subsidiaryoral, or securities convertible or exchangeable into Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary, or obligating the Company or any Company Subsidiary to issue or sell any shares of Company Capital Stock of, or any other equity or ownership interests in, the Company or such Company Subsidiary, (ii) outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of Company Capital Stock or other ownership or equity interests of the Company or such Company Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person, or (iii) voting trusts, stockholder agreements, registration rights agreements, proxies or other Contracts to which the Company is a party or by which 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 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 (excluding commissions and bonuses and the like), or other similar rights with respect to the Company. Except as contemplated hereby and in effect the Shareholders Agreement among the Company and each of the Shareholders dated as of June 14, 2004 (the “Company Shareholders Agreement”), there are no voting trusts, proxies, or other agreements or understandings with respect to the voting or transfer of any stock of the shares of Company Capital Stock or other equity or ownership interests of the Company or any Company SubsidiaryCompany. Except for the Warrants, all outstanding rights this Agreement and options set forth in Section 2.2(c) of the Disclosure Schedule were granted by the Company pursuant to the Stock Plan. In connection with the ClosingShareholders Agreement, the Board shall adopt resolutions providing that, in accordance with the terms of the Warrants, such Warrants, if not exercised as of the Effective Time, shall terminate, be cancelled and cease to exist, and the holders thereof will have no rights in respect thereof. There there are no Contracts agreements to which the Company is a party relating to the registration, sale or transfer (including Contracts agreements relating to rights of first refusal, co-sale rights or “drag-along” rights) of any Company Capital Stock. Except as set forth in Section 2.2(c) of the Disclosure Schedule, there is no outstanding Indebtedness from the Company or any Company Subsidiary to any Stockholder. As a result of the MergerStock Purchase, Parent Buyer 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. (d) Except as set forth in Section 2.2(d) of the Disclosure Schedule, no event has occurred, and no circumstance or condition exists, that has resulted in, or that will or would reasonably be expected to result in, and there is no basis for, any liability of the Company or any Company Subsidiary to any current, former or alleged holder of securities of the Company or any Company Subsidiary in such Person’s capacity (or alleged capacity) as a holder of such securities.

Appears in 1 contract

Samples: Stock Purchase Agreement (Synplicity Inc)

Company Capital Structure. (a) The authorized common stock of the Company consists of One Million (1,000,000) shares of Common Stock, of which Seventy-Nine Thousand Four Hundred Forty-Four (79,444) shares are issued and outstanding. Except the issued and outstanding shares of Common Stock described above, there are no other outstanding shares of capital stock of the Company consists solely of 140,000,000 shares of common stock, $0.01 par value per share, of which 117,521,524 shares are outstandingany class or series. The Company does not hold any shares of its capital stock in treasury. The Company Capital Common Stock is held as of the date of this Agreement by the Persons persons with the last known domicile addresses and in the amounts and class or series of shares of Common Stock as set forth in Section 2.2(a) of the Disclosure Schedule. (b) Schedules. All outstanding shares of Company Capital Common Stock (i) are duly authorized, validly issued, fully paid and non-assessable assessable, (ii) are free from any any lien, pledge, charge, claim restriction on transfer, mortgage, security interest or other encumbrance other than statutory liens for liabilities not yet due and payable (“Lien”) and other than those created by the holders of such shares regarding which the Company has no knowledge and (iii) are not subject to preemptive rights of first refusal, rights of first offer or similar rights created by statute, the Charter Documents Documents, or any Contract agreement to which the Company is a party or by which it is bound. All outstanding shares of Company Capital Stock , and have been issued in compliance in all material respects with applicable federal, state and foreign securities laws. The Company has not issued or repurchased (in the case any shares of shares that were outstanding and repurchased by the Company or any Stockholder) Common Stock except in compliance in all material respects with all applicable federal, state, foreign, or local statutesstatues, Lawslaws, rules rules, or regulations, including federal federal, state and state foreign securities Laws, laws and were issued, transferred and repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholder) in accordance with any right of first refusal or similar right or limitation, including those in the Charter Documents. The Company has not suffered or incurred any Liability (contingent or otherwise) or claim, loss or liability relating to or arising out of the issuance or repurchase of any Company Capital Stock, or out of any Contracts relating thereto (including any amendment of the terms of any such Contract)agreements applicable thereto. There are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Common Stock. Other than the Company Capital Stock set forth in Section 2.2(a) of the Disclosure Schedule, the The Company has no other capital stock authorized, issued or outstanding. All of the issued and There are no vesting provisions applicable to any outstanding shares of Company Capital Stock have been offered, issued and sold by the Company in compliance in all material respects with all applicable federal and state securities or “blue sky” Laws. There is no Indebtedness having the right to vote on any matters on which the Stockholders may voteCommon Stock. (cb) Except as set forth in Section 2.2(c) The Company has no stock option plan or other plan providing for equity compensation of the Disclosure Schedule, there any person. There are no (i) outstanding obligations, options, warrants, calls, rights, commitments or other Contracts agreements of any kind relating to the ownership interests of the Company character, written or any Company Subsidiaryoral, or securities convertible or exchangeable into Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary, or obligating the Company or any Company Subsidiary to issue or sell any shares of Company Capital Stock of, or any other equity or ownership interests in, the Company or such Company Subsidiary, (ii) outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of Company Capital Stock or other ownership or equity interests of the Company or such Company Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person, or (iii) voting trusts, stockholder agreements, registration rights agreements, proxies or other Contracts to which the Company is a party in effect 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 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. The Company is not a party to, and, to the Company’s knowledge, there are no other voting trusts, proxies, or other agreements or understandings with respect to the voting or transfer of any stock of the shares of Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary. Except for the Warrants, all outstanding rights and options set forth in Section 2.2(cCompany. (c) of the Disclosure Schedule were granted by the Company pursuant to the Stock Plan. In connection with the Closing, the Board shall adopt resolutions providing that, in accordance with the terms of the Warrants, such Warrants, if not exercised as of the Effective Time, shall terminate, be cancelled and cease to exist, and the holders thereof will have no rights in respect thereof. There are no Contracts preemptive rights or agreements, arrangements or understandings to issue preemptive rights with respect to the issuance or sale of capital stock created by statute, the Charter Documents, or any agreement or other arrangement to which the Company is a party relating (written or oral) or 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 Stock. Except as set forth in Section 2.2(c) of the Disclosure Schedule, there which it is no outstanding Indebtedness from the Company or any Company Subsidiary to any Stockholder. As a result of the 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. (d) Except as set forth in Section 2.2(d) of the Disclosure Schedule, no event has occurred, and no circumstance or condition exists, that has resulted in, or that will or would reasonably be expected to result inbound, and there are no agreements, arrangements or understandings to which the Company is no basis for, a party (written or oral) pursuant to which the Company has the right to elect to satisfy any liability of the Company or any Company Subsidiary to any current, former or alleged holder of securities of the Company or any Company Subsidiary in such Person’s capacity (or alleged capacity) as a holder of such securitiesby issuing capital stock.

Appears in 1 contract

Samples: Merger Agreement (Staktek Holdings Inc)

Company Capital Structure. (a) The authorized capital stock of the Company consists solely of 140,000,000 1,000,000 shares of common stock, $0.01 par value per shareCommon Stock, of which 117,521,524 113,001 shares are issued and outstanding. The As of the date hereof, the capitalization of the Company does not hold any is as set forth in Section 2.2(a)(1) of the Disclosure Schedule. Assuming the same total capitalization as on the date hereof, the total number of shares of its capital stock Company Common Stock outstanding as of immediately prior to the Effective Time (assuming the conversion, exercise, or exchange of all securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock and the issuance of any Company Common Stock pursuant to the Company Stock Issuance Plan) will be as set forth in treasurySection 2.2(a)(1) of the Disclosure Schedule. The Company Capital Stock is held by the Persons persons with the domicile addresses and in the amounts set forth in Section 2.2(a2.2(a)(1) of the Disclosure Schedule. (b) . All outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable and are not subject to preemptive rights created by statute, the Charter Documents of the Company, or any Contract agreement to which the Company is a party or by which it is bound. All outstanding shares of Company Capital Stock, including any shares issued or to be issued in connection with the Company Stock Issuance Plan, and Company Warrants have been issued or repurchased (in the case of shares that were outstanding and repurchased by the Company or any StockholderShareholder of the Company) in compliance with all applicable federal, state, foreign, or local statutes, Lawslaws, rules rules, or regulations, including federal and state securities Laws, and were issued, transferred and repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholder) in accordance with any right of first refusal or similar right or limitation, including those in the Charter Documentslaws. The Company has not, and will not have, suffered or incurred any Liability liability (contingent or otherwise) or claim, loss loss, liability, damage, deficiency, cost or liability 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 Contracts agreements or arrangements relating thereto (including any amendment of the terms of any such Contractagreement or arrangement). There are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Stock. Other than the Company Capital Stock set forth in Section 2.2(a) of the Disclosure Schedule, the The Company has no other capital stock authorized, issued or outstanding. All of the issued and outstanding shares of Company Capital Stock have been offered, issued and sold by the Company in compliance in all material respects with all No vesting provisions applicable federal and state securities or “blue sky” Laws. There is no Indebtedness having the right to vote on any matters on which the Stockholders may vote. (c) Except as set forth in Section 2.2(c) of the Disclosure Schedule, there are no (i) outstanding obligations, options, warrants, or other Contracts of any kind relating to the ownership interests of the Company or any Company Subsidiary, or securities convertible or exchangeable into Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary, or obligating the Company or any Company Subsidiary to issue or sell any shares of Company Capital Stock of, or any other equity or ownership interests in, the Company or such Company Subsidiary, (ii) outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of Company Capital Stock or other ownership or equity interests of the Company or such Company Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person, or (iii) voting trusts, stockholder agreements, registration rights agreements, proxies or other Contracts to which the Company is a party in effect with respect to the voting or transfer of any of the shares of Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary. Except for the Warrants, all outstanding rights and options set forth in Section 2.2(c) of the Disclosure Schedule were granted by the Company pursuant to the Stock Plan. In connection with the Closing, the Board shall adopt resolutions providing that, in accordance with the terms of the Warrants, such Warrants, if not exercised as of the Effective Time, shall terminate, be cancelled and cease to exist, and the holders thereof will have no rights in respect thereof. There are no Contracts to which the Company is a party 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 Stock. Except as set forth in Section 2.2(c) of the Disclosure Schedule, there is no outstanding Indebtedness from the Company or any Company Subsidiary to any Stockholder. As a result of the 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 to Company Warrants, or to any other rights to purchase Company Capital Stock will accelerate as a result of the Merger or as a result of any other events. (b) Neither the Company nor any of its Subsidiaries has ever adopted, sponsored or maintained any stock option plan or any other plan or agreement providing for equity compensation to any person. Section 2.2(b)(1) of the Disclosure Schedule sets forth for each outstanding Company Warrant, the name of the holder of such option or warrant, the type of entity of such holder, if not an individual, the domicile address of such holder, the number of shares of Company Capital Stock are outstanding. (d) Except as set forth in Section 2.2(d) of issuable upon the Disclosure Schedule, no event has occurred, and no circumstance or condition exists, that has resulted in, or that will or would reasonably be expected to result in, and there is no basis for, any liability of the Company or any Company Subsidiary to any current, former or alleged holder of securities of the Company or any Company Subsidiary in such Person’s capacity (or alleged capacity) as a holder exercise of such securitieswarrant, the exercise price of such warrant, the vesting schedule for such warrant, including the extent vested to date and whether the vesting of such warrant would be accelerated by the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Epicor Software Corp)

Company Capital Structure. (a) The authorized capital stock Company Capital Stock consists of the Company consists solely of 140,000,000 300,000 shares of common stock, $0.01 par value $.001 per share and 500,000 shares of preferred stock, par value $.001 per share. As of the date hereof, of which 117,521,524 shares are outstanding. The Company does not hold any 88,000 shares of its capital common stock in treasuryof the Company were the only issued and outstanding shares of Company Capital Stock. The Company Capital Stock is held by the Persons and in the amounts set forth in Section 2.2(a) of the Disclosure Schedule. (b) Schedule A. All outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable and are not subject to preemptive rights created by statute, the Charter Documents Documents, or any Contract agreement to which the Company is a party or by which it is bound. All outstanding shares of Company Capital Stock have been issued or repurchased (in the case of shares that were outstanding and repurchased by the Company or any StockholderStockholder of the Company) in compliance with all applicable federal, state, foreign, or local statutes, Lawslaws, rules rules, or regulations, including federal and state securities Lawslaws, and were issued, transferred and repurchased (in the case of shares that were outstanding and repurchased by the Company or any StockholderStockholder of the Company) in accordance with any right of first refusal or similar right or limitation, including those in the Charter Documents. The Company has not suffered or incurred any Liability (contingent or otherwise) or claim, loss or liability relating to or arising out of the issuance or repurchase of any Company Capital Stock, or out of any Contracts relating thereto (including any amendment of the terms of any such Contract). There are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Stock. Other than the No shares of Company Capital Stock set forth in Section 2.2(a) are unvested. For purposes of this Agreement, a share of Company Capital Stock shall be deemed “unvested” if such share is not vested or is subject to a risk of forfeiture or other condition under any applicable stock restriction agreement or other agreement with the Disclosure Schedule, the Company. The Company has no other capital stock authorized, issued or outstanding. All of the issued and outstanding shares of Company Capital Stock have been offered, issued and sold by the Company in compliance in all material respects with all applicable federal and state securities or “blue sky” Laws. There is no Indebtedness having the right to vote on any matters on which the Stockholders may vote. (cb) Except as set forth in Section 2.2(c) of the Disclosure Schedule, there There are no (i) outstanding obligations, options, warrants, calls, rights, convertible securities, commitments or other Contracts agreements of any kind relating character, written or oral, to the ownership interests of which the Company or any Company Subsidiary, of its Subsidiaries is a party or securities convertible or exchangeable into Company Capital Stock or other equity or ownership interests of by which the Company or any Company Subsidiary, or is bound obligating the Company to issue, deliver, sell, repurchase or any Company Subsidiary to issue or sell any shares of Company Capital Stock ofredeem, or any other equity cause to be issued, delivered, sold, repurchased or ownership interests inredeemed, the Company or such Company Subsidiary, (ii) outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of 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 ownership or similar rights with respect to the equity interests of the Company or such Company Subsidiary or to provide funds toany of its Subsidiaries (whether payable in equity, or make any investment (in the form of a loan, capital contribution cash or otherwise) in). Except as contemplated hereby, any other Person, or (iii) there are no voting trusts, stockholder agreementsproxies, registration rights agreements, proxies or other Contracts to which the Company is a party in effect agreements or understandings with respect to the voting or transfer of any of the shares of Company Capital Stock or other equity or ownership interests stock of the Company or any Company Subsidiary. Except for the Warrants, all outstanding rights and options set forth in Section 2.2(c) of the Disclosure Schedule were granted by the Company pursuant to the Stock Plan. In connection with the Closing, the Board shall adopt resolutions providing that, in accordance with the terms of the Warrants, such Warrants, if not exercised as of the Effective Time, shall terminate, be cancelled and cease to exist, and the holders thereof will have no rights in respect thereofits Subsidiaries. There are no Contracts agreements to which the Company or any of its Subsidiaries is a party relating to the registration, sale or transfer (including Contracts agreements relating to rights of first refusal, co-sale rights or “drag-along” rights) of any Company Capital Stock. Except as set forth in Section 2.2(c) of the Disclosure Schedule, there is no outstanding Indebtedness from the Company or any Company Subsidiary to any Stockholder. As a result of the 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. (c) There are no loans from the Company to any Stockholder. (d) Except as The allocation of the Merger Consideration set forth in Section 2.2(d1.6(b) hereof is consistent with the certificate of the Disclosure Schedule, no event has occurred, and no circumstance or condition exists, that has resulted in, or that will or would reasonably be expected to result in, and there is no basis for, any liability incorporation of the Company or any Company Subsidiary as amended as of immediately prior to any current, former or alleged holder of securities the Effective Time. (e) The information contained in Schedule A will be complete and correct as of the Company or any Company Subsidiary in such Person’s capacity (or alleged capacity) as a holder of such securitiesClosing Date.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Mediscience Technology Corp)

Company Capital Structure. (a) The authorized capital stock of the Company consists solely of 140,000,000 200 shares of authorized common stock, $0.01 no par value per share, of which 117,521,524 10 shares are outstandingissued and outstanding (the "COMPANY CAPITAL STOCK"). The Company does not hold any shares All of its capital stock in treasury. The the Company Capital Stock is held of record by the Persons and Shareholder. None of such shares of Company Capital Stock is subject to a repurchase right in the amounts set forth in Section 2.2(a) favor of the Disclosure Schedule. (b) Company. All outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable and are not subject to preemptive rights created by statute, the Charter Documents Certificate of Incorporation or Bylaws of the Company or any Contract agreement to which the Company is a party or by which it is bound. All issued and outstanding shares of Company Capital Stock have been issued or repurchased (in the case of shares that were outstanding offered, sold and repurchased delivered by the Company or any Stockholder) in compliance with all applicable federal, state, foreign, or local statutes, Laws, rules or regulations, including federal and state securities Laws, and were issued, transferred and repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholder) in accordance with any right of first refusal or similar right or limitation, including those in the Charter Documentslaws. The Company has not suffered or incurred any Liability (contingent or otherwise) or claim, loss or liability relating to or arising out of the issuance or repurchase of any Other than Company Capital Stock, or out of any Contracts relating thereto (including any amendment of the terms of any such Contract). There are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Stock. Other than the Company Capital Stock set forth in Section 2.2(a) of the Disclosure Schedule, the Company has no other capital stock authorized, issued or outstanding. All of the issued and outstanding shares of Company Capital Stock have been offered, issued and sold by the Company in compliance in all material respects with all applicable federal and state securities or “blue sky” Laws. There is no Indebtedness having the right to vote on any matters on which the Stockholders may vote. (cb) Except as set forth in Section 2.2(c) The Company has never adopted or maintained any stock option plan or other plan providing for equity compensation of the Disclosure Schedule, there any person. There are no (i) outstanding obligations, options, warrants, calls, rights, commitments or other Contracts agreements of any kind relating to the ownership interests of the Company character, written or any Company Subsidiaryoral, or securities convertible or exchangeable into Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary, or obligating the Company or any Company Subsidiary to issue or sell any shares of Company Capital Stock of, or any other equity or ownership interests in, the Company or such Company Subsidiary, (ii) outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of Company Capital Stock or other ownership or equity interests of the Company or such Company Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person, or (iii) voting trusts, stockholder agreements, registration rights agreements, proxies or other Contracts to which the Company is a party in effect 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 registration rights agreements, voting trusts, proxies, or other agreements or understandings with respect to the voting or transfer of any stock of the shares of Company Capital Stock or other equity or ownership interests Company. (c) Upon completion of the Company or any Company Subsidiary. Except for Acquisition, the Warrants, all outstanding rights and options set forth in Section 2.2(cPurchaser will own one hundred percent (100%) of the Disclosure Schedule were granted by the Company pursuant to the Stock Plan. In connection with the Closing, the Board shall adopt resolutions providing that, in accordance with the terms of the Warrants, such Warrants, if not exercised as of the Effective Time, shall terminate, be cancelled and cease to exist, and the holders thereof will have no rights in respect thereof. There are no Contracts to which the Company is a party 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 Stock. Except as set forth in Section 2.2(c) of the Disclosure Schedule, there is no outstanding Indebtedness from the Company or any Company Subsidiary to any Stockholder. As a result of the 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 free and clear of Company Capital Stock are outstanding. all Liens (d) Except as set forth defined in Section 2.2(d2.11) or claims of the Disclosure Schedule, no event has occurred, and no circumstance or condition exists, that has resulted in, or that will or would reasonably be expected to result in, and there is no basis for, any liability of the Company or any Company Subsidiary to any current, former or alleged holder of securities of the Company or any Company Subsidiary in such Person’s capacity (or alleged capacity) as a holder of such securitieskind.

Appears in 1 contract

Samples: Stock Purchase Agreement (Xcarenet Inc)

Company Capital Structure. (a) The Except as set forth in Section 2.2(a) of the Disclosure Schedule, the authorized capital stock of the Company consists solely of 140,000,000 50,000,000 shares of common stock, $0.01 par value per shareCompany Common Stock, of which 117,521,524 38,901,142 shares are issued and outstanding. The Company does not hold any shares of its capital stock in treasury. The Company Capital Stock is held by the Persons and Shareholders in the amounts set forth in Section 2.2(a) of the Disclosure Schedule. (b) . All outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid EXECUTION VERSION and non-assessable nonassessable and are not subject to preemptive rights created by statute, the Charter Documents Documents, or any Contract agreement to which the Company is a party or by which it is bound. All outstanding No shares of the Company Capital Stock have been issued are subject to any Lien suffered or repurchased (in the case of shares that were outstanding and repurchased permitted by the Company. Other than as contemplated herein, the Company or any Stockholder) in compliance with all applicable federal, state, foreign, or local statutes, Laws, rules or regulations, including federal and state securities Lawshas not, and were issuedwill not have, transferred and repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholder) in accordance with any right of first refusal or similar right or limitation, including those in the Charter Documents. The Company has not suffered or incurred any Liability liability (contingent or otherwise) or claim, loss loss, liability, damage, deficiency, cost or liability expense which has not been paid or satisfied prior to the date hereof 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 Contracts agreements or arrangements relating thereto (including any amendment of the terms of any such Contractagreement or arrangement). Except as contemplated pursuant to this Agreement, no Shareholder has exercised any right of redemption, if any, and the Company has not received notice that any Shareholder intends to exercise such rights. There are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Stock. Other than the Company Capital Stock set forth in Section 2.2(a) of the Disclosure Schedule, the The Company has no other capital stock authorized, issued or outstanding. All Except as set forth in Section 2.2(a) of the Disclosure Schedule, there are no shares of Company Unvested Capital Stock. None of the outstanding Company Capital Stock or other securities of the Company was issued in violation of any applicable state, federal or foreign securities laws. All Shareholders who received Company Capital Stock subject to repurchase or divestiture subject to Section 83 of the Code made a timely election with the Internal Revenue Service under Section 83(b) of the Code and any analogous provisions of applicable state tax laws with respect to such unvested Company Capital Stock. (b) Except for the Adlex, Inc. 1999 Stock Option Plan, as amended (the "Plan"), the Company has never adopted, sponsored or maintained any stock option plan or any other plan or agreement providing for the issuance of equity (including as compensation) to any Person. The Company has reserved 7,500,000 shares of Company Common Stock for issuance to employees and directors of, and consultants to, the Company upon the issuance of stock or the exercise of options granted under the Plan or any other plan, agreement or arrangement (whether written or oral, formal or informal). Section 2.2(b) of the Disclosure Schedule sets forth as of the date of this Agreement, for each outstanding Company Option, the name of the holder of such option, the type of entity of such holder, if not an individual, the domicile address of such holder, the number of shares of Company Capital Stock have issuable upon the exercise of such option, the exercise price of such option, and whether such option is a nonstatutory option or intended to qualify as an incentive stock option as defined in Section 422 of the Code. Each outstanding Company Option has been offeredissued in accordance with applicable state, issued and sold by the Company in compliance in all material respects with all applicable federal and state foreign securities or “blue sky” Laws. There is no Indebtedness having the right to vote on any matters on which the Stockholders may votelaws. (c) Except for the Company Options (which shall terminate pursuant to Section 1.6(c)) and except as set forth in Section 2.2(c) of the Disclosure Schedule, there are no options, warrants, calls, rights (including any stock appreciation, phantom stock, profit participation or other similar rights), convertible securities, commitments or agreements of any character, written or oral, to which the Company is a party or by which 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 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 debt securities of the Company. There are no securities or instruments containing anti-dilution or similar provisions by which the Company is or may become bound. Except as EXECUTION VERSION contemplated hereby or as set forth in Section 2.2(c) of the Disclosure Schedule, there are no voting trusts, proxies, or other agreements or understandings with respect to the voting stock of the Company or voting by a director of the Company. Except as set forth in Section 2.2(c) of the Disclosure Schedule, there are no (i) outstanding obligations, options, warrants, or other Contracts of any kind relating to the ownership interests of the Company or any Company Subsidiary, or securities convertible or exchangeable into Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary, or obligating the Company or any Company Subsidiary to issue or sell any shares of Company Capital Stock of, or any other equity or ownership interests in, the Company or such Company Subsidiary, (ii) outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of Company Capital Stock or other ownership or equity interests of the Company or such Company Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person, or (iii) voting trusts, stockholder agreements, registration rights agreements, proxies or other Contracts to which the Company is a party in effect with respect to the voting or transfer of any of the shares of Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary. Except for the Warrants, all outstanding rights and options set forth in Section 2.2(c) of the Disclosure Schedule were granted by the Company pursuant to the Stock Plan. In connection with the Closing, the Board shall adopt resolutions providing that, in accordance with the terms of the Warrants, such Warrants, if not exercised as of the Effective Time, shall terminate, be cancelled and cease to exist, and the holders thereof will have no rights in respect thereof. There are no Contracts agreements to which the Company is a party relating to the registration, sale or transfer (including Contracts agreements relating to rights of first refusal, co-sale rights or "drag-along" rights) of any Company Capital Stock. Except as set forth in Section 2.2(c) of the Disclosure Schedule, there is no outstanding Indebtedness from the Company or any Company Subsidiary to any Stockholder. As a result of the 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. (d) Except as The allocation of the Initial Consideration set forth in Section 2.2(d) 1.6 hereof is consistent with the Certificate of the Disclosure Schedule, no event has occurred, and no circumstance or condition exists, that has resulted in, or that will or would reasonably be expected to result in, and there is no basis for, any liability of the Company or any Company Subsidiary to any current, former or alleged holder of securities of the Company or any Company Subsidiary in such Person’s capacity (or alleged capacity) as a holder of such securitiesIncorporation.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Compuware Corp)

Company Capital Structure. (a) The authorized capital stock of the Company SLI consists solely of 140,000,000 registered shares of common stock, $0.01 authorized Company Stock with par value per shareof CHF 100, representing a total nominal value of CHF 100,000, all of which 117,521,524 shares are outstandingissued. The All of the issued and outstanding Company does not hold any shares of its capital stock in treasury. The Company Capital Stock is held by the Persons and in the amounts set forth in Section 2.2(a) of the Disclosure Schedule. (b) Shareholders. All outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable and are not subject to preemptive rights created by statute, the Charter Documents Certificate of Incorporation or Bylaws of SLI or any Contract agreement to which the Company is a party or by which it is bound. All outstanding shares of Company Capital Stock bound and have been issued or repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholder) in compliance with all applicable federal, state, foreign, or local statutes, Laws, rules or regulations, including federal and state securities Laws, and were issued, transferred and repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholder) in accordance with any right of first refusal or similar right or limitation, including those in the Charter Documentslaws. The Company has not suffered or incurred any Liability (contingent or otherwise) or claim, loss or liability relating to or arising out of the issuance or repurchase of any Company Capital Stock, or out of any Contracts relating thereto (including any amendment of the terms of any such Contract). There are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Stock. Other than the Company Capital Stock set forth in Section 2.2(a) of the Disclosure Schedule, the Company SLI has no other capital stock authorized, issued or outstanding. All of the issued and outstanding shares of Company Capital Stock have been offered, issued and sold by the Company in compliance in all material respects with all applicable federal and state securities or “blue sky” Laws. There is no Indebtedness having the right to vote on any matters on which the Stockholders may vote. (cb) Except as set forth in Section 2.2(c) of the Disclosure Schedule, there There are no (i) outstanding obligations, options, warrants, calls, rights, commitments or other Contracts agreements of any kind relating to the ownership interests of the Company character, written or any Company Subsidiaryoral, or securities convertible or exchangeable into Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary, or obligating the Company or any Company Subsidiary to issue or sell any shares of Company Capital Stock of, or any other equity or ownership interests in, the Company or such Company Subsidiary, (ii) outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of Company Capital Stock or other ownership or equity interests of the Company or such Company Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person, or (iii) voting trusts, stockholder agreements, registration rights agreements, proxies or other Contracts to which the Company is a party in effect 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 does not have any stock option plan or other plan providing for equity compensation of any person. There is no outstanding Company capital stock that is subject to vesting. 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 or transfer of any stock of the shares Company. (c) Upon completion of Company Capital Stock or other equity or ownership interests the Acquisition hereunder, NEON will own one hundred percent (100%) of the capital stock of the Company or and any Company Subsidiary. Except for the Warrants, all outstanding rights and options set forth in Section 2.2(c) of the Disclosure Schedule were granted by the Company pursuant to the Stock Plan. In connection with the Closing, the Board shall adopt resolutions providing that, in accordance with the terms of the Warrants, such Warrants, if not exercised as of the Effective Time, shall terminate, be cancelled and cease to exist, and the holders thereof will have no rights in respect thereof. There are no Contracts to which the Company is a party 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 Stock. Except as set forth in Section 2.2(c) of the Disclosure Schedule, there is no outstanding Indebtedness from the Company or any Company Subsidiary to any Stockholder. As a result of the 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 such capital stock, free and clear of Company Capital Stockall liens, whether encumbrances or not such shares other defects of Company Capital Stock are outstandingtitle. (d) Except as set forth in Section 2.2(d) of the Disclosure Schedule, no event has occurred, and no circumstance or condition exists, that has resulted in, or that will or would reasonably be expected to result in, and there is no basis for, any liability of the Company or any Company Subsidiary to any current, former or alleged holder of securities of the Company or any Company Subsidiary in such Person’s capacity (or alleged capacity) as a holder of such securities.

Appears in 1 contract

Samples: Share Acquisition Agreement (New Era of Networks Inc)

Company Capital Structure. (a) The Company has authorized capital stock of the 1,000 Company consists solely of 140,000,000 shares of common stock, $0.01 par value per shareUnits for issuance, of which 117,521,524 shares 1,000 Company Units are issued and outstanding. The Company does not hold any shares of its capital stock in treasury. The Company Capital Stock is Units are held by the Persons with the domicile addresses and in the amounts set forth in Section 2.2(a) of the Disclosure Schedule. (b) . All outstanding shares of Company Capital Stock Units are duly authorized, validly issued, fully paid and non-assessable and are not subject to any right of repurchase, vesting conditions or preemptive rights created by statute, the Charter Documents Documents, or any Contract agreement to which the Company is a party or by which it is bound. All outstanding shares of Company Capital Stock Units have been issued or repurchased (in the case of shares Company Units that were outstanding and repurchased by the Company or any StockholderMember of the Company) in compliance with all applicable federal, state, foreign, or local statutes, Lawslaws, rules rules, or regulations, including federal and state securities Lawslaws, and were issued, transferred and repurchased (in the case of shares Company Units that were outstanding and repurchased by the Company or any StockholderMember of the Company) in accordance with any right of first refusal or similar right or limitationlimitation known to the Company. Other than Third Party Expenses of the Company, including those in neither Purchaser nor the Charter Documents. The Company has not suffered will suffer or incurred incur any Liability liability (contingent or otherwise) or claim, loss loss, liability, damage, deficiency, cost or liability expense relating to or arising out the ownership of the issuance Company Units or the exchange thereof pursuant hereto. The Company has no obligation to repurchase of any Company Capital StockUnits. No Member has withdrawn from the Company in whole or in part or exercised any right to withdraw its interest in the Company’s assets, or out of and the Company has not received notice that any Contracts relating thereto (including any amendment of the terms of any Member intends to exercise such Contract)rights. There are no declared or accrued but unpaid dividends distributions with respect to any shares Company Units. The Company has no other membership interests authorized, issued or outstanding. (b) Section 2.2(b) of the Disclosure Schedule sets forth for all holders of Company Capital StockUnvested Units, the name of the holder of such Company Unvested Units, the repurchase price of such Company Unvested Units, the date of purchase of such Company Unvested Units and the vesting schedule for such Company Unvested Units, including the extent vested to date, whether the vesting of such Company Unvested Units is subject to acceleration as a result of the transactions contemplated by this Agreement or any other events. (c) Neither the Company nor its Subsidiary has ever ever adopted, sponsored or maintained any unit option plan or any other plan or agreement providing for equity compensation to any Person. (d) There are no options, warrants, calls, rights, convertible securities, commitments or agreements of any character, written or oral, to which the Company or its Subsidiary is a party or by which the Company or its Subsidiary is bound obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any Company Units or any other voting or economic or other interest in 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 unit appreciation, phantom unit, 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 interests of the Company. Other than the Company Capital Stock set forth in Section 2.2(a) of the Disclosure Schedule, the Company has no other capital stock authorized, issued or outstanding. All of the issued and outstanding shares of Company Capital Stock have been offered, issued and sold by the Company in compliance in all material respects with all applicable federal and state securities or “blue sky” Laws. There is no Indebtedness having the right to vote on any matters on which the Stockholders may vote. (c) Except as set forth in Section 2.2(c) of the Disclosure ScheduleOperating Agreement, there are no (i) outstanding obligations, options, warrants, or other Contracts of any kind relating to the ownership interests of the Company or any Company Subsidiary, or securities convertible or exchangeable into Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary, or obligating the Company or any Company Subsidiary to issue or sell any shares of Company Capital Stock of, or any other equity or ownership interests in, the Company or such Company Subsidiary, (ii) outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of Company Capital Stock or other ownership or equity interests of the Company or such Company Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person, or (iii) voting trusts, stockholder agreements, registration rights agreements, proxies or other Contracts to which the Company is a party in effect with respect to the voting or transfer of any of the shares of Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary. Except for the Warrants, all outstanding rights and options set forth in Section 2.2(c) of the Disclosure Schedule were granted by the Company pursuant to the Stock Plan. In connection with the Closing, the Board shall adopt resolutions providing that, in accordance with the terms of the Warrants, such Warrants, if not exercised as of the Effective Time, shall terminate, be cancelled and cease to exist, and the holders thereof will have no rights in respect thereof. There are no Contracts agreements to which the Company is a party relating to the registration, sale or transfer (including Contracts agreements relating to rights of first refusal, co-sale rights or “drag-along” rights) of any Company Capital Stock. Except as set forth in Section 2.2(c) of the Disclosure Schedule, there is no outstanding Indebtedness from the Company or any Company Subsidiary to any StockholderUnits. As a result of the Merger, Parent Purchaser will be the sole record and beneficial holder of all issued and outstanding Company Capital Stock Units and all rights to acquire or receive any shares of Company Capital Stockmembership interest in the Company, whether or not such shares of Company Capital Stock interests are outstanding. (de) Except as set forth in Section 2.2(d) The allocation of the Disclosure Schedule, no event has occurred, consideration payable by Purchaser in exchange for the Company Units under the terms of this Agreement does not conflict with the Charter Documents. (f) The information contained in the Spreadsheet shall be complete and no circumstance or condition exists, that has resulted in, or that will or would reasonably be expected to result in, and there is no basis for, any liability correct as of the Company or any Company Subsidiary to any current, former or alleged holder of securities of the Company or any Company Subsidiary in such Person’s capacity (or alleged capacity) as a holder of such securitiesClosing Date.

Appears in 1 contract

Samples: Merger Agreement (Digital Music Group, Inc.)

Company Capital Structure. (a) The As of the date of this Agreement, the authorized capital stock of the Company consists solely of 140,000,000 10,000,000 shares of common stock, $0.01 par value per shareCompany Common Stock, of which 117,521,524 2,298,500 shares are issued and outstanding. The As of the date hereof, the capitalization of the Company does not hold any shares is as set forth in Section 2.2(a) of its capital stock in treasurythe Disclosure Schedule. The Company Capital Stock is held by the Persons persons with the domicile addresses and in the amounts set forth in Section 2.2(a) of the Disclosure Schedule. (b) Schedule which further sets forth for each such person the number of shares held, class and/or series of such shares and the number of the applicable stock certificates representing such shares. All outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable and were not issued in violation of, and are not subject to to, preemptive rights created by statute, the Charter Documents Documents, or any Contract agreement to which the Company is a party or by which it is bound. All outstanding shares of Company Capital Stock and Company Options have been issued or repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholdershareholder of the Company) in compliance with all applicable federal, state, foreign, or local statutes, Lawslaws, rules rules, or regulations, including federal and state securities Lawslaws, and were issued, transferred and repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholdershareholder of the Company) in accordance with any right of first refusal or similar right or limitation, including those in the Charter Documents. The Except as contemplated in Section 1.6(c)(i) with respect to Company has Options, the Company does not suffered or incurred have any Liability liability (contingent or otherwise) or claim, loss loss, damage, deficiency, cost or liability expense relating to or arising out of the issuance or repurchase of any Company Capital StockStock or Company Options, or out of any Contracts agreements or arrangements relating thereto (including any amendment of the terms of any such Contractagreement or arrangement). There are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Stock. Other than the Company Capital Stock set forth in Section 2.2(a) of the Disclosure Schedule, the The Company has no other capital stock authorized, issued or outstanding. All . (b) Section 2.2(b) of the issued and outstanding shares Disclosure Schedule sets forth for all holders of Company Capital Common Stock, the name of the holder of such Company Common Stock, the repurchase price of such Company Common Stock, the date of purchase of such Company Common Stock have been offeredand the vesting schedule for such Company Common Stock, issued including the extent vested to date, whether the vesting of such Company Common Stock 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 sold by whether, to the Knowledge of the Company, the holder has made a timely election with the Internal Revenue Service under Section 83(b) of the Code with respect to such Company in compliance in all material respects with all applicable federal and state securities or “blue sky” Laws. There is no Indebtedness having the right to vote on any matters on which the Stockholders may voteCommon Stock. (c) Except for the Plan, neither the Company nor any of its Subsidiaries has ever adopted, sponsored or maintained any stock option plan or any other plan or agreement providing for equity compensation to any person. The Company has reserved 500,000 shares of Company Common Stock for issuance to employees and directors of, and consultants to, the Company or any of its Subsidiaries upon the issuance of stock or the exercise of options granted under the Plan, of which (i) 500,000 shares are issuable, as set of the date hereof, upon the exercise of outstanding, unexercised options granted under the Plan, (ii) 500,000 shares have been issued upon the exercise of options or purchase of restricted stock granted under the Plan and remain outstanding as of the date hereof and (iii) no shares remain available for future grant. As of the date hereof, all Company Options have been issued under the Plan. Except as described above, there are no other Company Options outstanding. Section 2.2(c) of the Disclosure Schedule sets forth for each outstanding Company Option, the name of the holder of such option, the type of entity of such holder, and any ultimate parent entity of such holder, if not an individual, the domicile address of such holder, the number of shares of Company Capital Stock issuable upon the exercise of such option or warrant, the exercise price of such option or warrant, the date of grant of such option or warrant, the vesting schedule for such option or warrant, including the extent vested to date and whether the vesting of such option or warrant is subject to acceleration as a result of the transactions contemplated by this Agreement or any other events (including an accurate summary of any such acceleration provisions), whether such option was issued under the Plan and whether such option is a nonstatutory option or intended to qualify as an incentive stock option as defined in Section 422 of the Code. The terms of the Plan and the applicable agreements for each Company Option permit the assumption or substitution of options to purchase Parent Common Stock as provided in this Agreement, without the consent or approval of the holders of such securities, the Shareholders or otherwise and, if so assumed, without any acceleration of the exercise schedules or vesting provisions in effect for such Company Options. True and complete copies of all forms of agreements used by the Company to grant Company Options have been provided to Parent and such forms of agreements and instruments have not been amended, modified or supplemented, and there are no agreements to amend, modify or supplement such agreements or instruments from the forms thereof provided to Parent. (d) Except for the Company Options listed on Section 2.2(c) of the Disclosure Schedule, there are no (i) outstanding obligations, 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 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 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 for repurchases of restricted Company Common Stock upon termination of employment. There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or other Contracts of any kind relating similar rights with respect to the ownership interests Company or any of its Subsidiaries. Except as contemplated hereby, there are no voting trusts, proxies, or other agreements or understandings with respect to the voting stock of the Company or any Company Subsidiary, or securities convertible or exchangeable into Company Capital Stock or other equity or ownership interests of its Subsidiaries. There are no agreements to which the Company or any Company Subsidiary, or obligating the Company or any Company Subsidiary to issue or sell any shares of Company Capital Stock of, or any other equity or ownership interests in, the Company or such Company Subsidiary, (ii) outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of Company Capital Stock or other ownership or equity interests of the Company or such Company Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person, or (iii) voting trusts, stockholder agreements, registration rights agreements, proxies or other Contracts to which the Company is a party in effect with respect to the voting or transfer of any of the shares of Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary. Except for the Warrants, all outstanding rights and options set forth in Section 2.2(c) of the Disclosure Schedule were granted by the Company pursuant to the Stock Plan. In connection with the Closing, the Board shall adopt resolutions providing that, in accordance with the terms of the Warrants, such Warrants, if not exercised as of the Effective Time, shall terminate, be cancelled and cease to exist, and the holders thereof will have no rights in respect thereof. There are no Contracts to which the Company its Subsidiaries is a party relating to the registration, sale or transfer (including Contracts agreements relating to rights of first refusal, co-sale rights or “drag-along” rights) of any Company Capital Stock. Except as set forth in Section 2.2(c) of the Disclosure Schedule, there is no outstanding Indebtedness from the Company or any Company Subsidiary to any Stockholder. As a result of the 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. (de) Except as No employee, officer, director or shareholder of the Company or member of his or her immediate family is indebted to the Company, nor is the Company indebted to any of them other than (i) for payment of salary for services rendered, (ii) reimbursement for reasonable expenses incurred on behalf of the Company and (iii) for other standard employee benefits made generally available to all employees. (f) Upon the receipt of the Requisite Shareholder Vote, the allocation of the Merger Shares set forth in Section 2.2(d1.6(b) will be consistent with the Articles of Incorporation of the Disclosure Schedule, no event has occurred, and no circumstance or condition exists, that has resulted in, or that will or would reasonably be expected to result in, and there is no basis for, any liability of the Company or any Company Subsidiary to any current, former or alleged holder of securities of the Company or any Company Subsidiary in such Person’s capacity (or alleged capacity) as a holder of such securitiesCompany.

Appears in 1 contract

Samples: Merger Agreement (Harmonic Inc)

Company Capital Structure. (a) The authorized share capital stock of the Company consists solely of 140,000,000 (i) 1,500,000 shares of Company common stock, $0.01 par value per shareof which, 829,303 shares of Company common stock are issued and outstanding and (ii) 386,399 shares of Company preferred stock, of which 117,521,524 shares are outstanding. The Company does not hold any shares of its capital stock in treasury. The Company Capital Stock is held by the Persons and in the amounts set forth in Section 2.2(a) of the Disclosure Schedule. (b) All outstanding 386,397 shares of Company Capital Stock preferred stock are duly authorized, validly issued, fully paid issued and non-assessable and are not subject to preemptive rights created by statute, the Charter Documents or any Contract to which the Company is a party or by which it is bound. All outstanding shares of Company Capital Stock have been issued or repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholder) in compliance with all applicable federal, state, foreign, or local statutes, Laws, rules or regulations, including federal and state securities Laws, and were issued, transferred and repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholder) in accordance with any right of first refusal or similar right or limitation, including those in the Charter Documents. The Company has not suffered or incurred any Liability (contingent or otherwise) or claim, loss or liability relating to or arising out of the issuance or repurchase of any Company Capital Stock, or out of any Contracts relating thereto (including any amendment of the terms of any such Contract). There are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Stock. Other than the Company Capital Stock set forth in Section 2.2(a) of the Disclosure Schedule, the Company has no other capital stock authorized, issued or outstanding. All of the issued and outstanding shares of Company Capital Stock have been offeredcommon stock are held legally, beneficially and of record by the Seller. Other than the Governing Documents and this Agreement, there are no Contracts relating to voting, purchase, sale or transfer of any Company Shares, or that are between the Company, on the one hand, and the Seller, on the other hand. (b) Except for the shares of Company common stock and Company preferred stock described in Section 2.5(a), (i) the Company has no Company Securities authorized, issued or outstanding and sold by (ii) neither the Company in compliance in all material respects with all applicable federal and state securities nor any of its Representatives have made any offers (whether or “blue sky” Lawsnot enforceable, written or oral) to issue any Company Securities. There is Other than this Agreement, there are no Indebtedness having proxies, voting trusts, voting agreements or other Contracts relating to the right to vote on issuance, sale or transfer of any matters on which the Stockholders may voteCompany Securities. (c) Except as set forth in Section 2.2(c) of the Disclosure Schedule, there are no All issued Company Shares (i) outstanding obligations, options, warrants, or other Contracts of any kind relating to the ownership interests of the Company or any Company Subsidiary, or securities convertible or exchangeable into Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary, or obligating the Company or any Company Subsidiary to issue or sell any shares of Company Capital Stock of, or any other equity or ownership interests in, the Company or such Company Subsidiaryhave been duly authorized and validly issued and are fully paid and nonassessable, (ii) outstanding contractual obligations have been issued in compliance with, and not in violation of the Company any preemptive, subscription or any Company Subsidiary to repurchasesimilar rights under, redeem or otherwise acquire any shares of Company Capital Stock or other ownership or equity interests of the Company or such Company Subsidiary or to provide funds toall Legal Requirements, or make any investment (all requirements set forth in the form Governing Documents and the terms of a loan, capital contribution or otherwise) in, any other Person, or (iii) voting trusts, stockholder agreements, registration rights agreements, proxies or other Contracts Contract to which the Company is subject, bound or otherwise a party in effect with respect and (iii) are not subject to the voting any Lien, outstanding subscriptions, preemptive rights or transfer of any other rights to subscribe or purchase securities of the shares of Company Capital Stock or other equity or ownership interests of the Company Company, any lock-up period, or any Company Subsidiary. Except for the Warrantsother restrictions (whether created by Legal Requirement, all outstanding rights and options set forth in Section 2.2(c) of the Disclosure Schedule were granted by the Company pursuant to the Stock Plan. In connection with the Closing, the Board shall adopt resolutions providing that, in accordance with the terms of the Warrants, such Warrants, if not exercised as of the Effective Time, shall terminate, be cancelled and cease to exist, and the holders thereof will have no rights in respect thereofstatute or otherwise). There are no Contracts to which the Company is a party relating to the registration, sale declared or transfer (including Contracts relating to rights of first refusal, co-sale rights or “drag-along” rights) of any Company Capital Stock. Except as set forth in Section 2.2(c) of the Disclosure Schedule, there is no outstanding Indebtedness from the Company or any Company Subsidiary accrued dividends with respect to any Stockholder. As a result of the 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. (d) Except as set forth in Section 2.2(d) of the Disclosure Schedule, no event has occurred, and no circumstance or condition exists, that has resulted in, or that will or would reasonably be expected to result in, and there is no basis for, any liability of the Company or any Company Subsidiary to any current, former or alleged holder of securities of the Company or any Company Subsidiary in such Person’s capacity (or alleged capacity) as a holder of such securitiesShares.

Appears in 1 contract

Samples: Intercreditor Agreement (Osprey Technology Acquisition Corp.)

Company Capital Structure. (a) The authorized capital stock of the Company consists solely of 140,000,000 510,000,000 shares of common stock, $0.01 par value per shareCompany Common Stock, of which 117,521,524 (i) 390,000,000 shares are outstanding. The designated Company does not hold any Voting Common Stock and, of which, 362,420,600 of such shares are issued and outstanding on the date hereof, (ii) 120,000,000 shares are designated Company Non-Voting Common Stock and, of its capital stock in treasurywhich, 43,183,408 of such shares are issued and outstanding on the date hereof. The Company Capital Stock is held by the Persons and in the amounts set forth in Section 2.2(a2.5(a) of the Disclosure Schedule. Schedule which further sets forth for each such Person the number of shares held, class and/or series of such shares and the number of the applicable stock certificates representing such shares (b) if any). All outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable and are at the First Effective Time will not be subject to preemptive rights created by statute, the Charter Documents Documents, or any Contract to which the Company is a party or by which it is bound. Contract. (b) All outstanding shares of Company Capital Stock Stock, Company Options, and Company RSUs have been issued or repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholderstockholder of the Company) in compliance with all applicable federal, state, foreign, or local statutes, Laws, rules or regulations, including federal and state securities LawsLegal Requirements, and were issued, transferred and repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholderstockholder of the Company) in accordance with any right of first refusal or similar right or limitation, including those in limitation Known to the Charter DocumentsCompany. The Company has not, and will not have, suffered or incurred any Liability liability (contingent or otherwise) or claim, loss loss, liability, damage, deficiency, cost or liability expense relating to or arising out of the issuance or repurchase of any Company Capital Common Stock, or out of any Contracts agreements or arrangements relating thereto (including any amendment of the terms of any such Contractagreement or arrangement). Other than the Company Capital Stock set forth in Sections 2.5(a) of the Disclosure Schedule, the Company has no other capital stock authorized, issued or outstanding. There are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Stock. Other True, correct and complete copies of all agreements and instruments relating to any securities of the Company have been Made Available and such agreements and instruments have not been amended, modified or supplemented. (c) There are no outstanding shares of Company Restricted Stock which are unvested or otherwise subject to a risk of forfeiture or a right of repurchase of the Company. No Company Options are exercisable for shares of Company Restricted Stock that would be unvested or otherwise subject to a risk of forfeiture or a right of repurchase of the Company. The terms of the Plans and the applicable award agreements permit the treatment of Company Options and Company RSUs as provided herein, without the consent or approval of any holder of a Company Option or Company RSU. (d) Except for the Plans and the Phantom Plan, neither the Company nor any of its Subsidiaries currently maintain any stock option plan or any other plan or agreement providing for equity or equity-related compensation to any Person (whether payable in shares, cash or otherwise). The Company has reserved 55,088,834 shares of Company Common Stock for issuance to employees and directors of, and consultants to, the Company upon the issuance of stock or the exercise of options or the granting or purchase of restricted stock granted under the Plans, of which (i) 52,020,363 shares are issuable, as of the date hereof, upon the exercise of outstanding, unexercised options granted under the Plans, (ii) 142,742 shares have been issued upon the exercise of options granted under the Plans and remain outstanding as of the date hereof, (iii) 0 shares have been issued as restricted stock awards under the Plans and remain outstanding as of the date hereof, (iv) 424,221 shares are issuable, as of the date hereof, upon the vesting and settlement of restricted stock units under the Plans, and (v) 2,925,729 shares remain available for future grant. All holders of Company Options are current employees or non-employee directors or independent contractors, advisors or consultants to or of the Company or a Subsidiary of the Company. No Company Option or other “stock right” (as defined in U.S. Treasury Department regulation 1.409A-1(l)) (1) has an exercise price that was less than the fair market value of the underlying equity as of the date such option or right was granted and no exercise price of any Company Capital Stock set forth Option has been amended following the grant date of such Company Option to an exercise price less than the fair market value on the date of such amendment, (2) has any feature for the deferral of compensation other than the deferral of recognition of income until the later of exercise or disposition of such Company Option or other stock rights, (3) has been granted after the Company’s incorporation, with respect to any class of stock of the Company that is not “service recipient stock” (within the meaning of applicable regulations under Section 409A), or (4) has ever been accounted for other than fully in accordance with GAAP in the Company’s audited financial statements provided to Parent. (e) Section 2.2(a2.5(e) of the Disclosure ScheduleSchedule sets forth for each outstanding Company Option, the Company has no other capital stock authorized, issued or outstanding. All name of the issued and outstanding holder, the type of award, the number of shares of Company Capital Stock have been offeredissuable upon the exercise of such Company Option, issued the date of grant, the exercise price and sold by whether such Company Option is “early exercisable” for shares of Company Restricted Stock. (f) Section 2.5(f) of the Disclosure Schedule sets forth for each outstanding Company RSU, the name of the holder, and the number, class and series of shares of Company Capital Stock underlying such Company RSU. (g) No bonds, debentures, notes or other indebtedness of the Company in compliance in all material respects with all applicable federal and state securities or “blue sky” Laws. There is no Indebtedness any of its Subsidiaries (i) having the right to vote on any matters on which stockholders may vote (or which is convertible into, or exchangeable for, securities having such right) or (ii) the Stockholders may votevalue of which is in any way based upon or derived from capital or voting stock of the Company, are issued or outstanding as of the date hereof. (ch) Except as set forth in Section 2.2(c) of for the Disclosure ScheduleCompany Options and Company RSUs, there are no (i) outstanding obligations, options, warrants, calls, rights, convertible securities, commitments or other Contracts agreements of any kind relating character, written or oral, to which the ownership interests Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound obligating the Company or any of its Subsidiaries 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 Company Subsidiary, or securities convertible or exchangeable into Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary, its Subsidiaries or obligating the Company or any Company Subsidiary of its Subsidiaries to issue or sell any shares of Company Capital Stock grant, extend, accelerate the vesting of, change the price of, otherwise amend or enter into any other equity such option, warrant, call, right, commitment or ownership interests in, agreement. Except for the Company Options, there are no outstanding or such Company Subsidiaryauthorized stock appreciation, (ii) outstanding contractual obligations phantom stock, profit participation, or other equity-compensation rights of the Company or any Company Subsidiary to repurchaseof its Subsidiaries (whether payable in shares, redeem or otherwise acquire any shares of Company Capital Stock or other ownership or equity interests of the Company or such Company Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution cash or otherwise) in). Except as contemplated hereby, any other Person, or (iii) there are no voting trusts, stockholder agreementsproxies, registration rights agreements, proxies or other Contracts to which the Company is a party in effect agreements or understandings with respect to the voting or transfer of any of the shares of Company Capital Stock or other equity or ownership interests stock of the Company or any Company Subsidiary. Except for the Warrants, all outstanding rights and options set forth in Section 2.2(c) of the Disclosure Schedule were granted by the Company pursuant to the Stock Plan. In connection with the Closing, the Board shall adopt resolutions providing that, in accordance with the terms of the Warrants, such Warrants, if not exercised as of the Effective Time, shall terminate, be cancelled and cease to existits Subsidiaries, and the holders thereof will have no rights in respect thereof. There there are no Contracts agreements to which the Company or any of its Subsidiaries is a party relating to the registration, sale or transfer (including Contracts agreements relating to rights of first refusal, co-sale rights or “drag-along” rights) of any Company Capital Stock. Except as set forth in Section 2.2(c) of the Disclosure Schedule, there is no outstanding Indebtedness from the Company or any Company Subsidiary to any Stockholder. As a result of the MergerMergers, 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. (di) Except The information contained in the Spreadsheet is true, correct and complete as of the Closing Date and the calculations performed to compute the information contained therein will be accurate and in accordance with applicable Legal Requirements, the terms of this Agreement, the Charter Documents and all other agreements and instruments among the Company and/or any of the Stockholders, and no Stockholder nor any other holder of Company securities will be entitled to any amounts except as provided in the Spreadsheet or as set forth in Section 2.2(d1.6(f) with respect to payment of the Disclosure Schedule, no event has occurred, and no circumstance or condition exists, that has resulted in, or that will or would reasonably be expected any Deferred Amounts to result in, and there is no basis for, any liability of the Company or any Company Subsidiary to any current, former or alleged holder of securities of the Company or any Company Subsidiary in such Person’s capacity (or alleged capacity) as a holder of such securitiesStockholders.

Appears in 1 contract

Samples: Merger Agreement (Coupa Software Inc)

Company Capital Structure. (a) The authorized capital stock of the Company consists solely of 140,000,000 shares of common stock, $0.01 par value per share, of which 117,521,524 shares Units are outstanding. The Company does not hold any shares of its capital stock in treasury. The Company Capital Stock is held owned by the Persons and in the amounts set forth in on Section 2.2(a) of the Disclosure Schedule. , which further sets forth, for each such Person, (bA) such Person’s address; (B) the number of Company Units held by such Person (including whether such Company Units are Company Common Units, Company Class A Preferred Units, Company Class B Preferred Units or Company Class C Units); (C) the liquidation preference applicable to each Company Class A Preferred Unit and Company Class B Preferred Unit held by such Person, if any; (D) the date of acquisition of such units, (E) the Pro Rata Portion applicable to such Person; (F) the amount of cash to be paid to each holder pursuant to Section 1.6; and (G) the amount of cash, if any, to be paid by or on behalf of such Person in settlement of Tax withholding obligations pursuant to Section 1.6(d). All outstanding shares of Company Capital Stock Units are duly authorized, validly issued, fully paid and non-assessable and and, except as set forth on Section 2.2(a) of the Disclosure Schedule, are not subject to preemptive rights created by statute, the Charter Documents or any Contract agreement to which the Company is a party or by which it is bound. All outstanding shares of Company Capital Stock Units and Company Options have been issued or repurchased (in the case of shares Company Units or Company Options that were outstanding and repurchased by the Company or any StockholderUnitholder) in compliance with all applicable federal, state, foreign, or local statutes, Laws, rules or regulations, including federal and state securities Laws, and were issued, transferred and repurchased (in the case of shares Company Units or Company Options that were outstanding and repurchased by the Company or any StockholderSecurityholder) in accordance with any right of first refusal or similar right or limitation, including those in the Charter Documents. The Company has not suffered or incurred any Liability (contingent or otherwise) or claim, loss or liability relating to or arising out of the issuance or repurchase of any Company Capital Stock, or out of any Contracts relating thereto (including any amendment of the terms of any such Contract). There are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Stock. Other than the Company Capital Stock Except as set forth in on Section 2.2(a) of the Disclosure Schedule, no Securityholder has exercised any right of redemption, if any, provided for in the Operating Agreement with respect to Company Class A Preferred Units or Company Class B Preferred Units, and the Company has not received notice that any Securityholder intends to exercise such rights. Except as set forth on Section 2.2(a) of the Disclosure Schedule, no Company Units are unvested. For purposes of this Agreement, a Company Unit shall be deemed to be “unvested” if such Company Unit is not vested or is subject to a repurchase option, risk of forfeiture or other condition under any applicable unit restriction agreement or other agreement with the Company. Except as set forth on Section 2.2(a) of the Disclosure Schedule, there are no other capital stock authorized“membership interests” of the Company and no outstanding commitments to issue any membership interests after the date of this Agreement. For purposes of this Agreement, issued a “membership interest” shall be deemed to be an Interest (as such term is defined in the Operating Agreement). Except as set forth on Section 2.2(a) of the Disclosure Schedule, membership interests of the Company are free and clear of any pledge, lien, security interest, encumbrance, claim or outstandingequitable interest, and are not subject to preemptive rights, rights of first refusal, rights of first offer or similar rights created by statute, the Operating Agreement or any agreement to which the Company is a party or to which it is bound. All of the issued and outstanding shares of Company Capital Stock Units have been offered, issued and sold by the Company in compliance in all material respects with all applicable federal and state securities or “blue sky” Laws. There is no Indebtedness indebtedness having the right to vote on any matters on which the Stockholders Members may vote. (b) Except for the Plan and as set forth on Section 2.2(b) of the Disclosure Schedule, the Company has never adopted, sponsored or maintained any unit option plan or any other plan or agreement providing for equity compensation to any Person. Under the Plan, Class C Units may be issued to Employees, Managers and Consultants upon the issuance of units or the exercise of Company Options granted under the Plan, of which (1) 1,436,634 units are issuable, as of the date of this Agreement, upon the exercise of outstanding, unexercised Company Options granted under the Plan; and (2) 100,000 units have been issued upon the exercise of Company Options granted under the Plan and remain outstanding as of the date of this Agreement. No Company Class C Units are issuable upon the exercise of outstanding Company Options that have not been issued under the Plan. Section 2.2(b) of the Disclosure Schedule sets forth, for each outstanding Company Option, (A) the name of the holder of such option; (B) the type of entity of such holder, and any ultimate parent entity of such holder, if not an individual; (C) the address of such holder on file with the Company; (D) the number of Company Class C Units issuable upon the exercise of such option; (E) the exercise price of such option; (F) the date of grant of such option; (G) the vesting schedule for such option, including the extent vested as of the date of this Agreement and whether the vesting of such option 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 (H) whether such option was issued pursuant to the Plan. True, correct and complete copies of all agreements and instruments relating to or issued pursuant to the Plan have been made available to Parent and such agreements and instruments have not been amended, modified or supplemented, and there are no agreements to amend, modify or supplement such agreements or instruments from the forms thereof made available to Parent. (c) Except for the Company Options and as set forth in Section 2.2(c) of the Disclosure Schedule, there are no (i) outstanding obligations, options, warrants, calls, rights, convertible securities, commitments or other Contracts agreements of any kind relating to the ownership interests of the Company character, written or any Company Subsidiaryoral, or securities convertible or exchangeable into Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary, or obligating the Company or any Company Subsidiary to issue or sell any shares of Company Capital Stock of, or any other equity or ownership interests in, the Company or such Company Subsidiary, (ii) outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of Company Capital Stock or other ownership or equity interests of the Company or such Company Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person, or (iii) voting trusts, stockholder agreements, registration rights agreements, proxies or other Contracts to which the Company is a party or by which the Company is bound that obligate the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any Company Units or other membership units in effect 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 unit appreciation, phantom unit, profit participation, or other similar rights with respect to the voting or transfer of any of the shares of Company Capital Stock or other equity or ownership interests of the Company (whether payable in equity, cash or any Company Subsidiaryotherwise). Except for the Warrants, all outstanding rights and options as contemplated hereby or as set forth in Section 2.2(c) of the Disclosure Schedule were granted by the Company pursuant Schedule, there are no voting trusts, proxies, or other agreements or understandings with respect to the Stock Plan. In connection with the Closing, the Board shall adopt resolutions providing that, in accordance with the terms voting interests of the WarrantsCompany. Other than the Operating Agreement, such Warrants, if not exercised as of the Effective Time, shall terminate, be cancelled and cease to exist, and the holders thereof will have no rights in respect thereof. There there are no Contracts agreements to which the Company is a party relating to the registration, sale or transfer (including Contracts agreements relating to rights of first refusal, co-sale rights or “drag-along” rights) of any Company Capital Stock. Except as set forth in Section 2.2(c) of the Disclosure Schedule, there is no outstanding Indebtedness from the Company or any Company Subsidiary to any StockholderUnits. As a result of the Merger, Parent will be the sole record and beneficial holder of all issued and outstanding Company Capital Stock Units, all membership interests in the Company and all rights to acquire or receive any shares of Company Capital StockUnits, whether or not such shares of Company Capital Stock Units are outstanding. (d) Except as set forth in Section 2.2(d) of the Disclosure Schedule sets forth the outstanding principal, accrued interest and applicable rate of interest of all outstanding loans from the Company to any Securityholder. (e) The allocation of the Merger Consideration set forth in Section 1.6(b) is and will be consistent with the Operating Agreement as of immediately prior to the Effective Time. (f) The information contained in the Spreadsheet will be true, correct and complete as of the Closing Date. (g) Except as set forth on Section 2.2(g) of the Disclosure Schedule, no event has occurredthe Company does not have, and no circumstance has never had, any subsidiaries or condition existsAffiliates, that and does not otherwise own and has resulted in, never otherwise owned any shares of capital stock or that will or would reasonably be expected to result any interest in, and there is no basis fordoes not control and has never controlled, directly or indirectly, any other Person. The Company is not a participant in any joint venture, partnership, limited liability company or similar arrangement. Since its inception, the Company has not consolidated or merged with, or acquired all or substantially all of the Company assets of, or acquired the stock of or any Company Subsidiary to interest in, any current, former or alleged holder of securities of the Company or any Company Subsidiary in such Person’s capacity (or alleged capacity) as a holder of such securities.

Appears in 1 contract

Samples: Merger Agreement (Advent Software Inc /De/)

Company Capital Structure. (a) The authorized capital stock of the Company consists solely of 140,000,000 60,000,000 shares of common stock, $0.01 par value per shareCommon Stock, of which 117,521,524 5,290,307 shares are issued and outstanding, 3,565,000 shares of Series A Preferred Stock, all of which are issued and outstanding, 2,851,065 shares of Series B Preferred Stock, all of which are issued and outstanding, 1,250,000 shares of Series B-1 Preferred Stock, all of which are issued and outstanding, 3,236,918 shares of Series C Preferred Stock, all of which are issued and outstanding, and 2,009,571 shares of Series D Preferred Stock, all of which are issued and outstanding. The Each share of Company does not hold any shares of its capital stock in treasuryPreferred Stock is convertible on a one-share for one-share basis into Company Common Stock. The Company Capital Stock is held by the Persons persons and in the amounts set forth in Section 2.2(aSECTION 2.2(a)(1) of the Disclosure Schedule. (b) . All outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable and are and, except as set forth in SECTION 2.2(a)(2) of the Disclosure Schedule, not subject to preemptive rights created by statute, the Charter Documents certificate of incorporation or bylaws of the Company, or any Contract 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. All outstanding shares of Company Capital Stock Stock, Company Options and Company Warrants have been issued or repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholder) in material compliance with all applicable federal, state, foreign, or local statutes, Lawslaws, rules rules, or regulations, including federal and state securities Laws, and were issued, transferred and repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholder) in accordance with any right of first refusal or similar right or limitation, including those in the Charter Documentslaws. The Company has not, and will not have, suffered or incurred any Liability liability (contingent or otherwise) or claim, loss loss, liability, damage, deficiency, cost or liability 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 Contracts agreements or arrangements relating thereto (including any amendment of the terms of any such Contractagreement or arrangement). There are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Stock. Other than the Company Capital Stock set forth in Section 2.2(a) of the Disclosure Schedule, the The Company has no other capital stock authorized, issued or outstanding. All of the issued and outstanding shares of Company Capital Stock have been offered, issued and sold by the Company in compliance in all material respects with all applicable federal and state securities or “blue sky” Laws. There is no Indebtedness having the right to vote on any matters on which the Stockholders may vote. (c) Except as set forth in Section 2.2(c) of the Disclosure Schedule, there are no (i) outstanding obligations, options, warrants, or other Contracts of any kind relating to the ownership interests of the Company or any Company Subsidiary, or securities convertible or exchangeable into Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary, or obligating the Company or any Company Subsidiary to issue or sell any shares of Company Capital Stock of, or any other equity or ownership interests in, the Company or such Company Subsidiary, (ii) outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of Company Capital Stock or other ownership or equity interests of the Company or such Company Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person, or (iii) voting trusts, stockholder agreements, registration rights agreements, proxies or other Contracts to which the Company is a party in effect with respect to the voting or transfer of any of the shares of Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary. Except for the Warrants, all outstanding rights and options set forth in Section 2.2(cSECTION 2.2(a)(3) of the Disclosure Schedule were granted by the sets forth for all holders of Company pursuant to the Stock Plan. In connection with the ClosingUnvested Common Stock, the Board shall adopt resolutions providing that, in accordance with the terms name of the Warrantsholder of such Company Unvested Common Stock, the repurchase price of such Warrants, if not exercised as of the Effective Time, shall terminate, be cancelled and cease to existCompany Unvested Common Stock, and the holders thereof vesting schedule for such Company Unvested Common Stock, including the extent vested to date and whether the vesting of such Company Unvested Common Stock will have no rights in respect thereof. There are no Contracts to which be accelerated by the Company is a party 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 Stocktransaction contemplated by this Agreement. Except as set forth in Section 2.2(c) of the Disclosure Schedule, there is no outstanding Indebtedness from the Company or any Company Subsidiary to any Stockholder. As a result of the 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. (d) Except as set forth in Section 2.2(dSECTION 2.2(a)(4) of the Disclosure Schedule, no event vesting provisions applicable to any shares of Company Unvested Common Stock, to Company Options or Company Warrants, or to any other rights to purchase Company Common Stock will accelerate as a result of the Merger or as a result of any other events. (b) Except as set forth in SECTION 2.2(b)(1) of the Disclosure Schedule and except for the Stock Plan, neither the Company nor any of its Subsidiaries has occurredever adopted, sponsored or maintained any stock option plan or any other plan or agreement providing for equity compensation to any person. The Company has reserved a total of 7,384,302 shares of Company Common Stock for issuance to employees and directors of, and no circumstance consultants to, the Company under the Stock Plan or condition existsany other plan, that has resulted inagreement or arrangement (whether written or oral, formal or that will or would reasonably be expected to result ininformal), of which (i) 3,526,652 shares are issuable, as of the date hereof, upon the exercise of outstanding, unexercised Company Options, and there is no basis for(ii) 2,360,073 shares have been issued and remain outstanding, any liability as of the Company or any Company Subsidiary to any currentdate hereof, former or alleged holder upon the exercise of securities of options granted under the Company or any Company Subsidiary in such Person’s capacity (or alleged capacity) as a holder of such securitiesStock Plan.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Documentum Inc)

Company Capital Structure. (a) The authorized capital stock of Consideration Spreadsheet accurately reflects all Company Securities issued and outstanding and the Company consists solely of 140,000,000 shares of common stock, $0.01 par value per share, of which 117,521,524 shares are outstandingSecurities held or owned by each Securityholder. The Company does not hold maintain any shares other plan or arrangement providing for the issuance of its capital stock Company Securities or other equity-based or equity-like awards. There are no options, warrants, calls, Rights, Convertible Securities, commitments or Contracts of any character, written or oral, to which the Company is a party or by which 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 Company Securities. There are no outstanding or authorized equity appreciation, phantom equity, profit participation, or other rights of any type, the value of which is determined by reference in treasurywhole or in part to the value of the equity of the Company or any of the Company Securities (whether payable in cash, property or otherwise). The Company Capital Stock is Securities set forth in the Consideration Spreadsheet are the only Company Securities issued and outstanding. The Company Securities are held by the Persons and in the amounts as set forth in Section 2.2(a) the Consideration Spreadsheet. None of the Disclosure ScheduleCompany Securities have been certificated. The Company has not engaged in any entity or business reorganization, recapitalization or similar restructuring transaction that could result in a Company or Buyer Liability. (b) All Except as set forth in Section 5.2(b) of the Company Disclosure Schedule, all outstanding shares of Company Capital Stock Securities are duly authorized, validly issued, fully paid issued and non-assessable and are not subject to preemptive rights created by statute, the Charter Documents Operating Agreement or any Contract to which the Company is a party or by which it is bound. All outstanding shares of Company Capital Stock , and have been issued or repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholder) in compliance with all applicable federal, state, foreign, or local statutes, Laws, rules or regulations, including federal and state securities Laws, and were issued, transferred and repurchased (Laws in the case of shares that were outstanding and repurchased by the Company or any Stockholder) in accordance with any right of first refusal or similar right or limitation, including those in the Charter Documents. The Company has not suffered or incurred any Liability (contingent or otherwise) or claim, loss or liability relating to or arising out of the issuance or repurchase of any Company Capital Stock, or out of any Contracts relating thereto (including any amendment of the terms of any such Contract)all material respects. There are no declared or accrued but unpaid dividends or other similar distributions or commitments, in each case, with respect to any shares of Company Capital Stock. Other than the Company Capital Stock set forth in Section 2.2(a) of the Disclosure Schedule, the Company has no other capital stock authorized, issued or outstanding. All of the issued and outstanding shares of Company Capital Stock have been offered, issued and sold by the Company in compliance in all material respects with all applicable federal and state securities or “blue sky” Laws. There is no Indebtedness having the right to vote on any matters on which the Stockholders may voteSecurities. (c) Except as set forth provided in Section 2.2(c) of the Disclosure Schedulethis Agreement, there are no (i) outstanding obligationsvoting trusts, options, warrantsproxies, or other Contracts of any kind relating to the ownership interests of the Company or any Company Subsidiary, or securities convertible or exchangeable into Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary, or obligating the Company or any Company Subsidiary to issue or sell any shares of Company Capital Stock of, or any other equity or ownership interests in, the Company or such Company Subsidiary, (ii) outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of Company Capital Stock or other ownership or equity interests of the Company or such Company Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person, or (iii) voting trusts, stockholder agreements, registration rights agreements, proxies or other Contracts to which the Company is a party in effect with respect to the voting or transfer of any securities of the shares of Company Capital Stock or other equity or ownership interests of Company. Other than as provided in the Company or any Company Subsidiary. Except for the WarrantsOperating Agreement, all outstanding rights and options set forth in Section 2.2(c) of the Disclosure Schedule were granted by the Company pursuant to the Stock Plan. In connection with the Closing, the Board shall adopt resolutions providing that, in accordance with the terms of the Warrants, such Warrants, if not exercised as of the Effective Time, shall terminate, be cancelled and cease to exist, and the holders thereof will have no rights in respect thereof. There there are no Contracts to which the Company is a party relating to the registration, sale or transfer (including Contracts relating to rights of first refusal, co-sale rights rights, or “bring along” or “drag-along” rights) of any Company Capital Stock. Except as set forth in Section 2.2(c) of the Disclosure ScheduleSecurities, there is no outstanding Indebtedness from the Company or any Company Subsidiary to any Stockholder. As a result of the Merger, Parent will be the sole record and beneficial holder of all issued and outstanding Company Capital Stock and all rights such provisions relating to acquire sale or receive transfer (including any shares right of Company Capital Stock, whether first refusal and co-sale rights) have been satisfied or not such shares of Company Capital Stock are outstandingwaived with respect to the transactions contemplated by this Agreement. (d) Except as set forth in Section 2.2(d) of the Disclosure Schedule, no event has occurred, and no circumstance or condition exists, that has resulted in, or that will or would reasonably be expected to result in, and there is no basis for, any liability of the Company or any Company Subsidiary to any current, former or alleged holder of securities of the Company or any Company Subsidiary in such Person’s capacity (or alleged capacity) as a holder of such securities.

Appears in 1 contract

Samples: Securities Purchase Agreement (Cryolife Inc)

Company Capital Structure. (a) The As of the date of this Agreement, the authorized capital stock of the Company consists solely of 140,000,000 12,246,667 shares of common stock, $0.01 par value per shareCommon Stock, of which 117,521,524 4,077,485 shares are issued and outstanding, 253,333 shares of Series A Preferred Stock, all of which shares are issued and outstanding, and 17,500,000 shares of Series B Preferred Stock, of which 16,000,000 shares are issued and outstanding. The Company does not hold any shares Series A Preferred Stock and the Company Series B Preferred Stock, are convertible on a one-share for one-share basis into Company Common Stock. As of its capital stock the date hereof, the capitalization of the Company is as set forth in treasurySection 2.2(a) of the Disclosure Schedule. The Company Capital Stock is held by the Persons persons with the domicile addresses and in the amounts set forth in Section 2.2(a) of the Disclosure Schedule. (b) Schedule which further sets forth for each such person the number of shares held, class and/or series of such shares and the number of the applicable stock certificates representing such shares. All outstanding shares of Company Capital Stock are duly authorized, validly issued, fully paid and non-assessable and were not issued in violation of, and are not subject to to, preemptive rights created by statute, in the Charter Documents Documents, or any Contract agreement to which the Company is a party or by which it is bound. All outstanding shares of Company Capital Stock and Company Options have been issued or repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholderstockholder of the Company) in compliance with all applicable federal, state, foreign, or local statutes, Lawslaws, rules rules, or regulations, including federal and state securities Lawslaws, and were issued, transferred and repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholderstockholder of the Company) in accordance with any right of first refusal or similar right or limitation, including those in the Charter DocumentsDocuments or any agreement to which the Company is a party or by which it is bound. The Company has does not suffered or incurred have any Liability liability (contingent or otherwise) or claim, loss loss, damage, deficiency, cost or liability expense relating to or arising out of the issuance or repurchase of any Company Capital StockStock or Company Options, or out of any Contracts agreements or arrangements relating thereto (including any amendment of the terms of any such Contractagreement or arrangement). No Stockholder has exercised any right of redemption, if any, provided in the Certificate of Incorporation with respect to shares of the Company Preferred Stock, and the Company has not received notice that any Stockholder intends to exercise such rights. There are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Stock. Other than the Company Capital Stock set forth in Section 2.2(a) of the Disclosure Schedule, the The Company has no other capital stock authorized, issued or outstanding. All . (b) Section 2.2(b) of the issued and outstanding shares Disclosure Schedule sets forth for all holders of Company Capital Unvested Common Stock, the name of the holder of such Company Unvested Common Stock, the repurchase price of such Company Unvested Common Stock, the date of purchase of such Company Unvested Common Stock have been offeredand the vesting schedule for such Company Unvested Common Stock, issued including the extent vested to date, whether the vesting of such Company Unvested Common Stock 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 sold by whether, to the Knowledge of the Company in compliance in all material respects or any of its Subsidiaries, the holder has made a timely election with all applicable federal and state securities or “blue sky” Laws. There is no Indebtedness having the right Internal Revenue Service under Section 83(b) of the Code with respect to vote on any matters on which the Stockholders may votesuch Company Unvested Common Stock. (c) Except for the Plan, neither the Company nor any of its Subsidiaries has ever adopted, sponsored or maintained any stock option plan or any other plan or agreement providing for equity compensation to any person. The Company has reserved 2,920,000 shares of Company Common Stock for issuance to employees and directors of, and consultants to, the Company or any of its Subsidiaries upon the issuance of stock or the exercise of options granted under the Plan, of which (i) 2,285,510 shares are issuable, as set of the date hereof, upon the exercise of outstanding, unexercised options granted under the Plan, (ii) no shares have been issued upon the exercise of options or purchase of restricted stock granted under the Plan and remain outstanding as of the date hereof and (iii) 634,490 shares remain available for future grant. As of the date hereof, all Company Options have been issued under the Plan. Except as described above, there are no other Company Options outstanding. Section 2.2(c) of the Disclosure Schedule sets forth for each outstanding Company Option, the name of the holder of such option, the type of entity of such holder, and any ultimate parent entity of such holder, if not an individual, the domicile address of such holder, the number of shares of Company Capital Stock issuable upon the exercise of such option or warrant, the exercise price of such option or warrant, the date of grant of such option or warrant, the vesting schedule for such option or warrant, including the extent vested to date and whether the vesting of such option or warrant is subject to acceleration as a result of the transactions contemplated by this Agreement or any other events (including an accurate summary of any such acceleration provisions), whether such option was issued under the Plan and whether such option is a nonstatutory option or intended to qualify as an incentive stock option as defined in Section 422 of the Code. The terms of the Plan and the applicable agreements for each Company Option permit the assumption or substitution of options to purchase Parent Common Stock as provided in this Agreement, without the consent or approval of the holders of such securities, the Stockholders or otherwise and, if so assumed, without any acceleration of the exercise schedules or vesting provisions in effect for such Company Options. True and complete copies of all forms of agreements used by the Company to grant Company Options have been provided to Parent and such forms of agreements and instruments have not been amended, modified or supplemented, and there are no agreements to amend, modify or supplement such agreements or instruments from the forms thereof provided to Parent. (d) Except for the Company Options listed on Section 2.2(c) of the Disclosure Schedule, there are no (i) outstanding obligations, options, warrants, calls, rights, convertible securities, commitments or other Contracts agreements of any kind relating character, written or oral, to which the ownership interests Company or any of its Subsidiaries is a party or by which 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 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 for repurchases of restricted Company SubsidiaryCommon Stock upon termination of employment. There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or securities convertible or exchangeable into Company Capital Stock or other equity or ownership interests of similar rights with respect to the Company or any Company Subsidiaryof its Subsidiaries. Except as contemplated hereby, or obligating the Company or any Company Subsidiary to issue or sell any shares of Company Capital Stock of, or any other equity or ownership interests in, the Company or such Company Subsidiary, (ii) outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of Company Capital Stock or other ownership or equity interests of the Company or such Company Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person, or (iii) there are no voting trusts, stockholder agreementsproxies, registration rights agreements, proxies or other Contracts agreements that have been filed with the Company, to which the Company is a party in effect party, or regarding which the Company has Knowledge, with respect to the voting or transfer of any of the shares of Company Capital Stock or other equity or ownership interests stock of the Company or any Company Subsidiary. Except for the Warrants, all outstanding rights and options set forth in Section 2.2(c) of the Disclosure Schedule were granted by the Company pursuant to the Stock Plan. In connection with the Closing, the Board shall adopt resolutions providing that, in accordance with the terms of the Warrants, such Warrants, if not exercised as of the Effective Time, shall terminate, be cancelled and cease to exist, and the holders thereof will have no rights in respect thereofits Subsidiaries. There are no Contracts agreements to which the Company or any of its Subsidiaries is a party relating to the registration, sale or transfer (including Contracts agreements relating to rights of first refusal, co-sale rights or “drag-along” rights) of any Company Capital Stock. Except as set forth in Section 2.2(c) of the Disclosure Schedule, there is no outstanding Indebtedness from the Company or any Company Subsidiary to any Stockholder. As a result of the 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. (de) Except as Section 2.2(e) of the Disclosure Schedule sets forth for each of the outstanding Stockholder loans described in Section 1.6(f) hereof, the name of the Stockholder to whom the loan was made, the outstanding principal, accrued interest and applicable rate of interest on such loan, whether such loan was used to purchase Company Note Shares and, if so, the vesting schedule for such Company Note Shares, including the extent vested to date. (f) The allocation of the Merger Shares set forth in Section 2.2(d1.6(b) will be consistent with the Certificate of Incorporation of the Disclosure Schedule, no event has occurred, and no circumstance or condition exists, that has resulted in, or that will or would reasonably be expected to result in, and there is no basis for, any liability of the Company or any Company Subsidiary to any current, former or alleged holder of securities of the Company or any Company Subsidiary in such Person’s capacity (or alleged capacity) as a holder of such securitiesCompany.

Appears in 1 contract

Samples: Merger Agreement (Harmonic Inc)

Company Capital Structure. (a) The authorized capital stock of Other than the Interests, the Company consists solely of 140,000,000 shares of common stockdoes not have any other membership interests or other equity interests authorized, $0.01 par value per share, of which 117,521,524 shares are issued or outstanding. The Company does not hold any shares Interests are held of its capital stock in treasury. The Company Capital Stock is held record and to the Company’s Knowledge, beneficially by the Persons Sellers and in the amounts set forth in Section 2.2(aon Schedule 2.4(a). All Interests (i) of the Disclosure Schedule. (b) All outstanding shares of Company Capital Stock have been duly authorized and validly issued and are duly authorizedfully paid, validly issued, fully paid and non-assessable and are not subject to preemptive rights or similar rights created by statute, the Charter Documents Company’s certificate of organization, operating agreement or any Contract agreement or document to which the Company is a party or by which it is bound. All outstanding shares of Company Capital Stock , and (ii) have been offered, sold, issued or repurchased (in the case of shares that were outstanding and repurchased delivered by the Company or any Stockholder) in compliance with all applicable federal, state, foreign, or local statutes, Laws, rules or regulations, including federal and state corporate and securities Laws, and were issued, transferred and repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholder) in accordance with any right of first refusal or similar right or limitation, including those in the Charter Documents. The Company has not suffered or incurred any Liability (contingent or otherwise) or claim, loss or liability relating to or arising out of the issuance or repurchase of any Company Capital Stock, or out of any Contracts relating thereto (including any amendment of the terms of any such Contract). There are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Stockthe Interests. Other than Except as set forth above, as of the date of this Agreement, no Interests, other equity securities, partnership interests or similar ownership interests or other voting securities of the Company Capital Stock set forth in Section 2.2(a) or any securities exchangeable or convertible into, derivative of or exercisable for such Interests, other equity securities, partnership interests or similar ownership interests or other voting securities of the Disclosure ScheduleCompany, were issued, reserved for issuance or outstanding, nor are there any Company Equity Rights or other outstanding rights or claims thereto. There are no bonds, debentures, notes or other Indebtedness of the Company has no other capital stock authorized, issued or outstanding. All of the issued and outstanding shares of Company Capital Stock have been offered, issued and sold by the Company in compliance in all material respects with all applicable federal and state securities or “blue sky” Laws. There is no Indebtedness having the right to vote (or convertible into, or exchangeable for, securities having the right to vote) on any matters on which members of the Stockholders Company may vote. Except as set forth on Schedule 2.4(a), the Company has never repurchased, redeemed or otherwise acquired or caused the repurchase, redemption or acquisition of any Interests or other securities of the Company, and there are no amounts owed or which may be owed to any person by the Company as a result of any repurchase, redemption or acquisition of any Interests or other securities of the Company. There is no claim or basis for such a claim to any portion of the Purchase Price by any current or former member, option holder or warrant holder of the Company, or any other Person. (b) Except as set forth on Schedule 2.4(b), the Company has not adopted, sponsored or maintained any option plan or any other plan or agreement providing for equity compensation to any Person and there are no outstanding Company Equity Rights or agreements of any character, written or oral, obligating the Company to issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered, sold, repurchased or redeemed, any Interests or equity or other ownership interest of the Company or obligating the Company to grant or enter into any such Company Equity Right. There are no outstanding or authorized equity appreciation, phantom equity, profit participation, or other similar rights with respect to the Company. (c) Except as set forth in Section 2.2(c) of the Disclosure Scheduleon Schedule 2.4(c), there are no (i) outstanding obligationsvoting trusts, options, warrantsproxies, or other Contracts of any kind relating agreements or understandings with respect to the ownership interests of the Company or any Company Subsidiary, or securities convertible or exchangeable into Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary, or obligating the Company or any Company Subsidiary to issue or sell any shares of Company Capital Stock of, or any other equity or ownership interests in, the Company or such Company Subsidiary, (ii) outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of Company Capital Stock or other ownership or voting equity interests of the Company or such Company Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person, or (iii) voting trusts, stockholder agreements, registration rights agreements, proxies or other Contracts to which the Company is a party in effect with respect to the voting or transfer of any of the shares of Company Capital Stock or other equity or ownership interests of party, by which the Company is bound, or any Company Subsidiary. Except for the Warrants, all outstanding rights and options set forth in Section 2.2(c) of the Disclosure Schedule were granted by which the Company pursuant to the Stock Plan. In connection with the Closinghas Knowledge, the Board shall adopt resolutions providing that, in accordance with the terms of the Warrants, such Warrants, if not exercised as of the Effective Time, shall terminate, be cancelled and cease to exist, and the holders thereof will have no rights in respect thereof. There are no Contracts or (ii) agreements or understandings to which the Company is a party party, by which the Company is bound, or of which the Company has Knowledge relating to the registration, sale or transfer (including Contracts agreements relating to rights of first refusal, co-sale sale” rights or “drag-along” rights) of any Company Capital Stock. Except as set forth in Section 2.2(c) of the Disclosure Schedule, there is no outstanding Indebtedness from the Company or any Company Subsidiary to any Stockholder. As a result of the 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 outstandingInterests. (d) Except as set forth in Section 2.2(d) of the Disclosure Schedule, no event has occurred, and no circumstance or condition exists, that has resulted in, or that will or would reasonably be expected to result in, and there is no basis for, any liability of the Company or any Company Subsidiary to any current, former or alleged holder of securities of the Company or any Company Subsidiary in such Person’s capacity (or alleged capacity) as a holder of such securities.

Appears in 1 contract

Samples: Membership Interest Purchase Agreement (Revolution Lighting Technologies, Inc.)

Company Capital Structure. (a) The authorized capital stock of the Company consists solely of 140,000,000 750,000 shares of common stock, $0.01 no par value per share, of which 117,521,524 shares are outstanding(“Common Stock”). The Company does not hold any has 1,000 shares of its capital stock in treasury. The Company Capital Common Stock is held by the Persons outstanding, and in the amounts set forth in Section 2.2(a) of the Disclosure Schedule. (b) All all outstanding shares of capital stock of the Company Capital Stock are owned, of record and beneficially, by Xenogen, which is a direct wholly owned subsidiary of CLS. The Shares are duly authorized, validly issued, fully paid and non-assessable and are not subject to preemptive rights created by statute, the Company Charter Documents Documents, or any Contract agreement to which the Company or Caliper is a party or by which it either the Company or Caliper is bound. All outstanding shares of Company Capital Stock have been issued or repurchased (in Since at least January 1, 2001, the case of shares that were outstanding and repurchased by the Company or any Stockholder) in compliance with all applicable federal, state, foreign, or local statutes, Laws, rules or regulations, including federal and state securities Laws, and were issued, transferred and repurchased (in the case of shares that were outstanding and repurchased by the Company or any Stockholder) in accordance with any right of first refusal or similar right or limitation, including those in the Charter Documents. The Company has not suffered or incurred repurchased any Liability (contingent or otherwise) or claim, loss or liability relating to or arising out shares of the issuance or repurchase of any Company Capital Stock, or out of any Contracts relating thereto (including any amendment of the terms of any such Contract)its capital stock. There are no declared or accrued but unpaid dividends with respect to any shares of Company Capital Common Stock. Other than the Company Capital Stock set forth in Section 2.2(a) of the Disclosure Schedule, the Company has no other capital stock authorized, issued or outstanding. All of the issued and outstanding shares of Company Capital Stock have been offered, issued and sold by the Company in compliance in all material respects with all applicable federal and state securities or “blue sky” Laws. There is no Indebtedness having the right to vote on any matters on which the Stockholders may vote. (cb) Except as set forth in Section 2.2(c) of The Company has not, since the Disclosure ScheduleAcquisition Date, authorized or issued any Common Stock, and there are no (i) outstanding obligationsnot, and have not been since the Acquisition Date, any options, warrants, calls, rights, commitments or other Contracts agreements of any kind relating character, written or oral, to which Caliper or any of its Subsidiaries, including the ownership interests Company (each a “Caliper Company”), is a party or by which it is bound, obligating any such entity 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 Company Subsidiary, or securities convertible or exchangeable into Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary, or obligating the Company to grant any such option, warrant, call, right, commitment or agreement. There are not, and since the Acquisition Date have not been, any Company Subsidiary to issue outstanding or sell any shares of Company Capital Stock ofauthorized stock appreciation, or any other equity or ownership interests instock unit, the Company or such Company Subsidiaryphantom stock, (ii) outstanding contractual obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any shares of Company Capital Stock profit participation or other ownership or equity interests of similar rights with respect to the Company or such Company Subsidiary or to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any other Person, or (iii) Company. There are no voting trusts, stockholder agreementsproxies, registration rights agreements, proxies or other Contracts to which the Company is a party in effect agreements or understandings with respect to the voting or transfer of any stock of the shares Company. Upon the consummation of Company Capital Stock or other equity or ownership interests of the Company or any Company Subsidiary. Except for the Warrants, all outstanding rights and options set forth in Section 2.2(c) of the Disclosure Schedule were granted by the Company pursuant to the Stock Plan. In connection with the Closing, the Board shall adopt resolutions providing that, in accordance with the terms of the Warrants, such Warrants, if not exercised as of the Effective Time, shall terminate, be cancelled and cease to exist, and the holders thereof will have no rights in respect thereof. There are no Contracts to which the Company is a party 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 Stock. Except as set forth in Section 2.2(c) of the Disclosure Schedule, there is no outstanding Indebtedness from the Company or any Company Subsidiary to any Stockholder. As a result of the Merger, Parent Taconic will be the sole record and beneficial holder of all issued and outstanding Company Capital Stock the Shares and all rights to acquire or receive any shares of Company Capital Stock, whether or not such shares of Company Capital Stock are outstandingShares. (d) Except as set forth in Section 2.2(d) of the Disclosure Schedule, no event has occurred, and no circumstance or condition exists, that has resulted in, or that will or would reasonably be expected to result in, and there is no basis for, any liability of the Company or any Company Subsidiary to any current, former or alleged holder of securities of the Company or any Company Subsidiary in such Person’s capacity (or alleged capacity) as a holder of such securities.

Appears in 1 contract

Samples: Stock Purchase Agreement (Caliper Life Sciences Inc)