M&A Boot Camp booklet 2023 - Flipbook - Page 103
2.2 Charter Documents; Records. The Company has delivered to Parent accurate and complete copies of: (a) the certificate of incorporation
and bylaws, including all amendments thereto, of the Company (the “Charter Documents”); and (b) the minutes and other records of the meetings
and other proceedings (including any actions taken by written consent or otherwise without a meeting) of the stockholders or members, the board
of directors and all committees of the board of directors of the Company since January 1, 2006, which minutes or other records contain a complete
summary of all meetings of directors, stockholders and members, and all actions taken thereat or by written consent, since January 1, 2006. All
actions taken and all transactions entered into by the Company requiring approval under applicable Legal Requirements, Contracts or Charter
Documents have been duly approved by all necessary action of the board of directors and stockholders of the Company. There has been no
violation of any of the provisions of the Charter Documents of the Company, and the Company has not taken any action that is inconsistent in
any material respect with any resolution adopted by the Company’s stockholders, board of directors or any committee of the board of directors.
The books of account, stock records, minute books and other records of the Company are accurate, up-to-date and complete in all material
respects.
2.3 Capitalization.
(a) Outstanding Securities. The authorized capital stock of the Company consists of: (i) 326,678,465 shares of Company Common Stock,
of which 20,325,088 shares are issued and outstanding as of the date of this Agreement; and (ii) 224,614,638 shares of Company Preferred
Stock, of which: (A) 6,837,500 shares are designated as “Series A Convertible Preferred Stock,” 6,777,500 shares of which are issued and
outstanding as of the date of this Agreement; (B) 960,000 shares are designated as “Series A-1 Convertible Preferred Stock,” 960,000 shares
of which are issued and outstanding as of the date of this Agreement; (C) 13,862,191 shares are designated as “Series B Convertible
Preferred Stock,” 13,787,923 of which are issued and outstanding as of the date of this Agreement; (D) 868,130 shares are designated as
“Series B-1 Convertible Preferred Stock,” 868,130 of which are issued and outstanding as of the date of this Agreement; (E) 68,681,027 shares
are designated as “Series C Convertible Preferred Stock,” 50,843,530 of which are issued and outstanding as of the date of this Agreement;
(F) 68,681,027 shares are designated as “Series C-1 Convertible Preferred Stock,” none of which are issued and outstanding as of the date of
this Agreement; and (G) 64,724,763 shares are designated as “Series D Convertible Preferred Stock,” 53,484,406 of which are issued and
outstanding as of the date of this Agreement. There are no shares of capital stock held in the Company’s treasury. The Company has never
declared or paid any dividends on any shares of Company Capital Stock. Part 2.3(a) of the Disclosure Schedule sets forth the names of the
Company’s stockholders, the addresses of the Company’s stockholders and the class, series and number of shares of Company Capital
Stock owned of record by each of such stockholders. All of the outstanding shares of Company Capital Stock have been duly authorized
and validly issued, and are fully paid and nonassessable, and, except as set forth in Part 2.3(a) of the Disclosure Schedule, none of such
shares is subject to any repurchase option, forfeiture provision or restriction on transfer (other than restrictions on transfer imposed by
virtue of applicable federal and state securities laws). Each share of Company Preferred Stock is convertible into the number of shares of
Company Common Stock set forth in Part 2.3(a) of the Disclosure Schedule.
(b) Stock Options. The Company has reserved 42,794,807 shares of Company Common Stock for issuance under the Company Option
Plan, of which options with respect to 30,822,135 shares are outstanding as of the date of this Agreement. Part 2.3(b) of the Disclosure
Schedule accurately sets forth, with respect to each Company Option that is outstanding as of the date of this Agreement: (i) the name of the
holder of such Company Option; (ii) the total number of shares of Company Common Stock that are subject to such Company Option and
the number of shares of Company Common Stock with respect to which such Company Option is immediately exercisable; (iii)
13.