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This excerpt taken from the MRVL 8-K filed Nov 14, 2006. 4.11 Representations Related to the Issuance of Buyer Common Stock.(a) Capitalization. As of the date hereof, the authorized capital stock of Buyer consists of 492,000,000 shares of Buyer Common Stock, and 8,000,000 shares of preferred stock, par value $0.002 per share (“Buyer Preferred Stock”). At the close of business on June 19, 2006, (i) 293,268,946 shares of Buyer Common Stock or restricted shares of Buyer Common Stock were issued and outstanding and (ii) no shares of Preferred Stock were issued and outstanding, (iii) options to purchase 52,538,383 shares and warrants to purchase 1,053,294 shares of Buyer Common Stock or restricted stock units of Buyer Common Stock issued pursuant to employee benefit plans and agreements of Buyer were issued and outstanding. All of the outstanding shares of capital stock of Buyer have been duly authorized and validly issued and are fully paid and nonassessable. Other than as set forth above, (x) there are no options, warrants, rights, puts, calls, commitments or other contracts, arrangements or understandings issued by or binding upon Buyer or any Subsidiary of Buyer requiring or providing for, and (y) there are no outstanding debt or equity securities of Buyer or any Subsidiary of Buyer which upon the conversion, exchange or exercise thereof would require or provide for, the issuance by Buyer or any Subsidiary of Buyer of any new or additional shares of Buyer Common Stock or any other securities of Buyer (or any Subsidiary of Buyer) which, with or without notice, lapse of time and/or payment of monies, are or would be convertible into or exercisable or exchangeable for Buyer Common Stock or any other securities of Buyer (or any Subsidiary of Buyer). The shares of Buyer Common Stock to be issued pursuant to this Agreement will, upon issuance, be validly issued, fully paid, nonassessable, not subject to any preemptive rights and free and clear of all security interests, liens, claims, pledges or other encumbrances of any nature whatsoever (in each case to which Buyer is a party), other than restriction under applicable securities laws.32 (b) Governmental or Other Authorizations. Except for (i) such filings and approvals as are required to be made or obtained under the securities or “Blue Sky” laws of various states in connection with any issuance of the shares of Buyer Common Stock pursuant to this Agreement, and (ii) the filing of the notification form for the listing of additional shares or similar application with Nasdaq or such other national exchange on which the Buyer Common Stock is quoted or listed upon the issuance of the Stock Consideration issuable under this Agreement, all filings, consents and approvals as are required by Applicable Law for the issuance of Stock Consideration and performance of the Registration Rights Agreement have been obtained or made.(c) Exempt Offering. The offer, sale and issuance of any Buyer Common Stock in satisfaction of the Stock Consideration will be exempt from the registration requirements of the Securities Act, and will have been registered or qualified (or are exempt from registration and qualification) under the registration, permit or qualification requirements of all applicable state securities laws, assuming the accuracy of Seller’s representations and warranties in Section 3.21.(d) Registration Rights. Except as provided in the Registration Rights Agreement, Buyer has not granted or agreed to grant any Person any rights (including piggyback registration rights) to have any securities of Buyer registered with the SEC or any other Governmental Authority.(e) Form S-3 Eligibility. Buyer meets the “registrant eligibility” requirements set forth in the general instructions to Form S-3 to register any and all shares of Buyer Common Stock issued pursuant hereto and has no Knowledge of any facts or circumstances that would reasonably be expected to change its compliance with such requirements or eligibility to use Form S-3 or delay the effectiveness of any registration statement filed pursuant to the Registration Rights Agreement.(f) Disclosure. The information contained in this Agreement and the SEC Documents and other information provided to Seller in connection with the transactions contemplated hereby with respect to the business, operations, results of operations and financial condition of Buyer, and the transactions contemplated by this Agreement, when taken together, are true and complete in all material respects and do not omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.4.12 Advisory Fees. There is no investment banker, broker, finder or other intermediary or advisor that has been retained by or is authorized to act on behalf of Buyer, who will be entitled to any fee, commission or reimbursement of expenses from Buyer, or any Affiliate of Buyer, upon consummation of the transactions contemplated by this Agreement, the nonpayment of which could result in a claim against, or obligation of, Seller or any of its Affiliates.4.13 Export Compliance. Buyer acknowledges that the Transferred Assets include technology that is “controlled technology” under the U.S. Export Administration Regulations, including technology that is classified as ECCN 3E002 and ECCN 5E002 of the U.S. Export Administration Regulations.33 |
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