Common Shares 4 Company...................................................................................... 4
Common Stock 1 Company........................................................................1
Company Stock (1) As of the date hereof, the authorized capital stock of the Company consists of 20,000,000 shares of Company Common Stock, of which no more than 12,574,572 shares are outstanding. As of the date hereof, under Company Stock Plans, no more than 446,000 shares of Company Common Stock are subject to Company Stock Options. The Company holds 29,200 shares of Company Common Stock as treasury shares. The outstanding shares of Company Common Stock have been duly authorized and are validly issued and outstanding, fully paid and nonassessable and are not subject to preemptive rights (and were not issued in violation of any preemptive rights). The shares of Company Common Stock issuable pursuant to Company Stock Plans and the Company Rights Agreement, as the case may be, have been duly authorized and, upon issuance, will be validly issued and outstanding, fully paid and nonassessable and not be subject to preemptive rights (and will not be issued in violation of any preemptive rights). The Company does not have any Rights issued or outstanding with respect to Company Stock and the Company does not have any commitment to authorize, issue or sell any Company Stock or Rights, except Company Stock Options issued and vesting on the date hereof and pursuant to the Company Rights Agreement, as Previously Disclosed. With respect to each Company Stock Option, the Company has Previously Disclosed the recipient, the date of grant, the number of shares of Company Common Stock and the exercise price. It has no commitment to redeem, repurchase or otherwise acquire, or to register with the SEC, any shares of Company Stock. It has no outstanding bonds, debentures, notes or other obligations, the holders of which have the right to vote (or which are convertible into or exercisable for securities having the right to vote) on any matter.
(2) To its knowledge, there are no voting trusts, proxies, shareholder agreements or other agreements or understandings with respect to the voting of shares of Company Stock other than the Voting Agreements contemplated by Recital D hereto.
Ordinary Shares The Ordinary Shares included in the Units have been duly authorized and, when issued and delivered against payment for the Offered Securities by the Underwriters pursuant to this Agreement and registered in the Company’s register of members, will be validly issued, fully paid and non-assessable. The holders of such Ordinary Shares are not and will not be subject to personal liability by reason of being such holders; such Ordinary Shares are not and will not be subject to any preemptive or other similar contractual rights granted by the Company.
Fractional Shares of Common Stock (a) The Company shall not issue fractions of Warrants or distribute Warrant Certificates which evidence fractional Warrants. Whenever any fractional Warrant would otherwise be required to be issued or distributed, the actual issuance or distribution shall reflect a rounding of such fraction to the nearest whole Warrant (rounded down).
(b) The Company shall not issue fractions of shares of Common Stock upon exercise of Warrants or distribute stock certificates which evidence fractional shares of Common Stock. Whenever any fraction of a share of Common Stock would otherwise be required to be issued or distributed, the actual issuance or distribution in respect thereof shall be made in accordance with Section 2(d)(v) of the Warrant Certificate.
Parent Stock (a) As of the date hereof the authorized capital stock of Parent consists of (i) (A) 250,000 shares of Class A Common Stock, $.01 par value (the "Class A Common Stock"), of which no shares are validly issued and outstanding, and (B) 1,000,000 shares of Class B Common Stock, $.01 par value, of which 40,748 shares are validly issued and outstanding (without taking into account any shares of Parent Stock to be issued pursuant to this Agreement), fully paid and nonassessable; and (ii) 250,000 shares of Class A Convertible Preferred stock, of which 111,500 shares are validly issued and outstanding, fully paid and nonassessable. All outstanding securities of Parent were issued in accordance with applicable federal and state securities laws. Except as set forth on Schedule 5.6(a) hereto, there are no options, warrants, calls, --------------- agreements, commitments or other rights presently outstanding that would obligate Parent to issue, deliver or sell shares of its capital stock, or to grant, extend or enter into any such option, warrant, call, agreement, commitment or other right. In addition to the foregoing, as of the date hereof, Parent has no bonds, debentures, notes or other indebtedness issued or outstanding that have voting rights in Parent under ordinary circumstances.
(b) The holders of record as of the date hereof of the issued and outstanding shares of capital stock of Parent are set forth on Schedule 5.6(b) --------------- hereto.
(c) The holders of record as of the Effective Date of the outstanding shares of capital stock of Parent, together with the number of shares of capital stock then outstanding, are set forth on a pro forma basis on Schedule 5.6(c) --------------- hereto (determined based on certain assumptions described therein).
(d) When delivered to the TWG Shareholder in accordance with the terms hereof, the Parent Stock will (i) be duly authorized, fully paid and nonassessable, (ii) represent 10.0327% of the issued and outstanding shares of Parent Stock (determined based on the assumptions set forth on Schedule 5.6(c)), --------------- (iii) represent, on an as-converted and fully diluted basis, 2.2574% of the issued and outstanding capital stock of Parent (determined based on the assumptions set forth in Schedule 5.6(c)), and (iv) be free and clear of all --------------- Liens.
Shares The term “
Parent Shares All outstanding Parent Shares, and all Parent Shares, which may be issued pursuant to this Agreement shall when issued in accordance with this Agreement be, duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights.
The Shares The Shares to be issued and sold by the Company hereunder have been duly authorized by the Company and, when issued and delivered and paid for as provided herein, will be duly and validly issued, will be fully paid and nonassessable and will conform to the descriptions thereof in the Registration Statement, the Pricing Disclosure Package and the Prospectus; and the issuance of the Shares is not subject to any preemptive or similar rights.
Fractional Shares No fractional shares or scrip representing fractional shares shall be issued upon the conversion of this Note. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such conversion, the Company shall at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Conversion Price or round up to the next whole share.