MTW » Topics » (d) Capitalization; Title .

This excerpt taken from the MTW 8-K filed Mar 27, 2009.

(d)           Capitalization; Title.

 

(i)                    Target CompaniesSchedule 3.1(d)(i) contains a list of the capitalization and ownership of the Target Companies.  All the issued and outstanding equity securities of the Target Companies (A) have been duly authorized and validly issued and are fully paid and nonassessable, (B) were issued in compliance with all applicable Laws and (C) are held free and clear of all Liens and Stock Restrictions by the applicable Seller with valid title thereto, except for the Liens set forth on Schedule 3.1(d)(i), which Liens shall be released on or prior to the Closing.  Except for the Scotsman Equity Securities, the CastelMAC Equity Securities and the Frimont Equity Securities held by the Sellers as set forth on Schedule 3.1(d)(i), there are no (1) equity securities of any Target Company outstanding, (2) securities convertible into or exchangeable for equity securities of any Target Company outstanding, (3) options, warrants or other rights to purchase or subscribe to any equity securities of any Target Company or securities that are convertible into or exchangeable for equity securities of any Target Company outstanding or (4) Contracts relating to the issuance, sale or transfer of any equity securities of any Target Company, any such convertible or exchangeable securities or any such options, warrants or other rights.  Except as set forth in Schedule 3.1(d)(i), no Target Company has the right to acquire, directly or indirectly, an equity interest in any Person.  No Group Company is subject to any obligation to repurchase or otherwise acquire or retire, or to register under the Securities Act of 1933, as amended, any securities.

 

(ii)                   Subsidiaries.

 

(1)           Schedule 3.1(d)(ii) contains a list of the name, jurisdiction of organization, capitalization and ownership of each corporation, limited liability company, partnership or other entity of which more than 5.0% of the outstanding equity securities are directly or indirectly owned by any Target Company (collectively, the “Subsidiaries”).  All the issued and outstanding equity securities of each Subsidiary (A) have been duly authorized and validly issued and are fully paid and nonassessable, (B) were issued in compliance with all applicable Laws and (C) are held free and clear of all Liens and Stock Restrictions by one or more of the Target Companies (except for those outstanding equity securities owned by other Persons as set forth in Schedule 3.1(d)(ii)).  Except as set forth in Schedule 3.1(d)(ii), there are no (1) equity securities of any Subsidiary outstanding, (2) securities convertible into or exchangeable for equity securities of any Subsidiary outstanding; (3) options, warrants or other
 

 

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rights to purchase or subscribe to equity securities of any Subsidiary or securities that are convertible into or exchangeable for equity securities of any Subsidiary or (4) Contracts relating to the issuance, sale or transfer of any equity securities of any Subsidiary, any such convertible or exchangeable securities or any such options, warrants or other rights.  Except as set forth in Schedule 3.1(d)(ii), no Subsidiary has the right to acquire, directly or indirectly, an equity interest in any Person.
 
(2)           Each Subsidiary is a company duly organized, validly existing and in good standing (to the extent the concept of good standing is applicable) under the laws of its jurisdiction of organization and has all requisite power, legal right and authority to own, operate and lease its properties and to carry on its business as and where it currently conducts its business.  Each Subsidiary is duly qualified or licensed to do business as a foreign entity in each jurisdiction wherein the character of the properties owned by it, or the nature of its business, makes such licensing or qualification necessary (to the extent the concept of qualification or licensure to do business as a foreign entity as required by U.S. state law is applicable), except where the failure to so qualify would not, individually or in the aggregate, have a Material Adverse Effect.
 

(iii)                  Sellers.  All of the issued and outstanding equity securities of each Seller are beneficially owned, indirectly, by Parent free and clear of any Stock Restrictions with respect to the voting thereof.  Parent, indirectly through subsidiaries, has the requisite power and authority to cause the Sellers to take all actions contemplated to be taken by the Sellers hereunder.

 

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