Company Capitalization The Company has an authorized capitalization as set forth in the Prospectus; the outstanding shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and nonassessable.
Consideration Spreadsheet (a) At least three (3) Business Days before the Closing (the “Consideration Determination Date”), the Company shall prepare and deliver to Parent a spreadsheet (the “Consideration Spreadsheet”), certified by the President & Chief Executive Officer of the Company, which shall set forth, as of the Closing Date and immediately prior to the Effective Time except as set forth below, the following:
Market Capitalization At the time the Registration Statement was or will be originally declared effective, and at the time the Company’s most recent Annual Report on Form 10-K was filed with the Commission, the Company met or will meet the then applicable requirements for the use of Form S-3 under the Securities Act, including, but not limited to, General Instruction I.B.1
Post-Closing Capitalization At, and immediately after, the Closing, the authorized capitalization, and the number of issued and outstanding shares of the capital stock of the Company and the Parent, on a fully-diluted basis, as indicated on a schedule to be delivered by the Parties at or prior to the Closing, shall be acceptable to the Parent in its sole and absolute discretion.
Capitalization, Etc (a) The authorized capital stock of the Company consists of: (i) twenty-five million (25,000,000) shares of Company Common Stock, $.005 par value per share, of which, as of August 31, 1998, 8,076,404 shares (which amount does not materially differ from the amount issued and outstanding as of the date of this Agreement) have been issued and are outstanding; and (ii) five hundred thousand (500,000) shares of preferred stock, $1.00 par value per share, of which no shares are outstanding as of the date of this Agreement. All of the outstanding shares of Company Common Stock have been duly authorized and validly issued, and are fully paid and nonassessable. As of the date of this Agreement, there are 1,151,109 shares of Company Common Stock held in treasury by the Company and no shares of stock held in treasury by any of the other Acquired Corporations. (i) None of the outstanding shares of Company Common Stock is entitled or subject to any preemptive right, right of participation, right of maintenance or any similar right; (ii) none of the outstanding shares of Company Common Stock is subject to any right of first refusal in favor of the Company; and (iii) there is no Acquired Corporation Contract relating to the voting or registration of, or restricting any Person from purchasing, selling, pledging or otherwise disposing of (or granting any option or similar right with respect to), any shares of Company Common Stock. Upon consummation of the Merger, (A) the shares of Parent Common Stock issued in exchange for any shares of Company Common Stock that are subject to a Contract pursuant to which the Company has the right to repurchase, redeem or otherwise reacquire any shares of Company Common Stock will, without any further act of Parent, the Company or any other Person, become subject to the restrictions, conditions and other provisions contained in such Contract, and (B) Parent will automatically succeed to and become entitled to exercise the Company's rights and remedies under any such Contract. None of the Acquired Corporations is under any obligation to repurchase, redeem or otherwise acquire any outstanding shares of Company Common Stock.
Spreadsheet The Company shall prepare and deliver to Buyer and the Sellers’ Representative, at or prior to the Closing, a spreadsheet (the “Spreadsheet”) in the form reasonably acceptable to Buyer, which Spreadsheet shall be dated as of the Closing Date and shall set forth all of the following information (in addition to the other required data and information specified therein), as of the Closing Date and immediately prior to the Closing: (a) the names of all the Company Stockholders, Company Optionholders and their respective email addresses , Israeli identification number (and where available, taxpayer identification numbers) and bank account details (including the respective bank name and number, branch name and address, swift number and account number); (b) whether such Person is or was an employee of the Company or the US Subsidiary; (c) the number and kind of shares of Company Capital Stock held by, or subject to the Company Options held by such Persons and, in the case of outstanding certificated shares, the respective certificate numbers; (d) the number of shares of Company Capital Stock subject to and the exercise price per share, as converted to US dollars ($) per the NIS Exchange Rate, in effect for each Company Option; (e) the vesting status and schedule with respect to the Company Options and Company Capital Stock and terms of the Company’s rights to repurchase such unvested Company Capital Stock (including the repurchase price payable per share under each share of unvested Company Capital Stock); (f) the Tax status of each share of Company Capital Stock and Company Option under Section 422 of the Code or, if applicable, under the Israeli Tax Code (including status as a Company 102 Share, Company 102 Option or Company 3(i) Option); (g) the Aggregate Consideration Value, the Company Net Working Capital, the Transaction Expenses that are unpaid as of the Closing, the Buyer Stock Price Per Share, the Fully-Diluted Company Capital Stock Amount, the Aggregate Seller Company Capital Stock Amount, the Founder Seller Company Capital Stock Amount, the Non-Founder Seller Company Capital Stock Amount, the Founder Seller Pro-Rata Share and the Non-Founder Seller Pro-Rata Share; (h) the calculation of the Aggregate Net Consideration Amount, the Equity Exchange Ratio, the NIS Exchange Rate, the Aggregate Founder Seller Cash Amount, the Aggregate Founder Seller Stock Amount, the Aggregate Non-Founder Seller Amount, the Founder Seller Closing Cash Amount, the Founder Seller Closing Stock Amount, the Founder Seller Closing Cash Amount Per Share, the Founder Seller Closing Stock Amount Per Share, for each Founder Seller, the Individual Founder Seller Closing Cash Amount and the Individual Founder Seller Closing Stock Amount, for each Non-Founder Seller, the Individual Non-Founder Seller Closing Amount, the Non-Founder Seller Closing Amount and the Non-Founder Seller Closing Amount Per Share; (i) without derogating from Buyer’s rights under Section 1.10(a) or otherwise binding Buyer to a specific withholding amount or rate, the tax withholding rate and the total amount of Taxes (including for income, payroll, social security and other Taxes) to be deducted and withheld from the Aggregate Stock Consideration Amount that each Company Securityholder immediately prior to the Closing is entitled to receive pursuant to Sections 1.2(b) and (c); (j) the calculation of the Indemnity Holdback Amount, the Founder Seller Indemnity Holdback Amount, the Non-Founder Seller Indemnity Holdback Amount, the Indemnity Pro Rata Share of each Indemnifying Person; (k) the calculation of the Pro Rata Share; and (l) the calculation of the aggregate number of shares of Buyer Common Stock subject to the Founder Stock Restriction Agreement for each Seller Founder.
Authorized Capitalization As of the date of this Agreement, the authorized capitalization of Buyer consists of (i) 1,000,000,000 shares of common stock, par value $0.01 per share, of which 367,735,954 shares are issued and outstanding and (ii) 25,000,000 shares of undesignated preferred stock, par value $0.01 per share, none of which are issued and outstanding. Buyer has no other capital stock authorized, issued or outstanding. There are no outstanding or authorized stock appreciation, phantom stock, profit participation, or similar rights with respect to Buyer. With respect to any Buyer Common Stock that has been issued subject to a right of repurchase on the part of the Company, Disclosure Schedule 4.2(a) sets forth the holder thereof, the number and type of securities covered thereby, and the vesting schedule thereof (including a description of the circumstances under which such vesting schedule can or will be accelerated).
Capitalization Ratio Permit the ratio of Consolidated Debt of the Borrower to Consolidated Capital of the Borrower to exceed .58 to 1.00.
Equity Capitalization As of the date hereof, the authorized capital stock of the Company consists of (x) 30,000,000 shares of Common Stock, of which as of the date hereof, 10,964,602 shares are issued and outstanding, 2,529,378 shares are reserved for issuance pursuant to the Company’s employee incentive plan and other options and warrants outstanding and no shares are reserved for issuance pursuant to securities (other than the Warrants) exercisable or exchangeable for, or convertible into, shares of Common Stock, and (y) 10,000,000 shares of preferred stock, of which as of the date hereof, none are issued and outstanding. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable. Except as set forth above in this Section 3(p): (i) none of the Company’s capital stock is subject to preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company; and (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company, or contracts, commitments, understandings or arrangements by which the Company is or may become bound to issue additional capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or by which the Company is or may become bound; (iv) there are no financing statements securing obligations in any material amounts, either singly or in the aggregate, filed in connection with the Company; (v) there are no agreements or arrangements under which the Company is obligated to register the sale of any of its securities under the 1933 Act (except pursuant to the Registration Rights Agreement); (vi) there are no outstanding securities or instruments of the Company which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company is or may become bound to redeem a security of the Company; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; (viii) the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) the Company has no liabilities or obligations required to be disclosed in the SEC Documents but not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s business and which, individually or in the aggregate, do not or would not have a Material Adverse Effect. The Company has furnished or made available to the Buyers true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.
Debt to Capitalization Ratio As of the last day of each fiscal quarter of the Borrower, the Debt to Capitalization Ratio shall be less than or equal to 0.70 to 1.0.
