Actions to be Taken. In the event that (i) the holders of a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”), and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, each Stockholder and the Company hereby agrees: (a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company to consummate such Sale of the Company; (b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling Investors; (c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents; (d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company; (e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby; (f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and (g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 10 contracts
Samples: Contribution and Exchange Agreement (Sagrera Ricardo A.), Contribution and Exchange Agreement (Gonzalez May Carlos Alfredo), Contribution and Exchange Agreement (Continental Grain Co)
Actions to be Taken. In the event that (i) the holders of a majority at least 50% of the shares of Common Stock then issued or issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”), and ; (ii) the Board of Directors; and (iii) the holders of a majority of the then outstanding shares of Common Stock (other than those issued or issuable upon conversion of the Preferred Stock) (collectively, the “Electing Holders”) approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section Subsection 3.3 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Representative in connection with its service as the Stockholder Representative, absent fraud, bad faith, fraud or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 5 contracts
Samples: Voting Agreement (Gin & Luck Inc.), Voting Agreement (Gin & Luck Inc.), Voting Agreement (Gin & Luck Inc.)
Actions to be Taken. In the event that (i) the holders of a majority at least eighty-five percent (85%) of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling InvestorsStockholders”), ) and (ii) the Board of Directors, Directors approve a Sale of the Company in writing, specifying that this Section 3 2 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate of Incorporation required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors Stockholders to the Person to whom the Selling Investors Stockholders propose to sell their Shares, and, except as permitted in Section 3.3 Subsection 2.3 below, on the same terms and conditions as the Selling InvestorsStockholders;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Stockholders in order to carry out the terms and provision of this Section 32, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 2 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling InvestorsStockholders, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Representative in connection with its service as the Stockholder Representative, absent fraud, bad faith, fraud or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 5 contracts
Samples: Voting Agreement, Asset Acquisition Agreement (Cesca Therapeutics Inc.), Voting Agreement (Cesca Therapeutics Inc.)
Actions to be Taken. In the event that (i) the holders of at least a majority of the shares of Common Stock then issued (other than those issued or issuable or issued upon conversion of the shares of Series A Preferred Stock voting together as Stock); (ii) the holders of at least a single class (majority of the “Selling Investors”), outstanding shares of the Company’s Series A Preferred Stock; and (iiiii) the Board of Directors; (collectively, the “Electing Holders”) approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company), to be present (in person, by proxy, as applicable) for purposes of determining the presence of a quorum at a meeting, and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section Subsection 3.3 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Representative in connection with its service as the Stockholder Representative, absent fraud, bad faith, fraud or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 4 contracts
Samples: Voting Agreement, Voting Agreement (HyperSciences, Inc.), Voting Agreement (HyperSciences, Inc.)
Actions to be Taken. In the event that the (i) the holders of a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Majority Preferred Stock voting together as a single class Members (the “Selling Investors”), ) and (ii) the Board of Directors, Managers (including a majority of the Preferred Managers) approve a Sale of the Company in writing, specifying that this Section 3 Article VI shall apply to such transaction, then, subject to satisfaction of each Sale of the conditions set forth in Subsection 3.3 belowCompany, then each Stockholder and the Company Member hereby agrees:
(a) if such transaction Sale of the Company requires stockholder approvalapproval of the Members, with respect to all Shares Units that such Stockholder Member owns or over which such Stockholder Member otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares such Units in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate this Agreement required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such Sale of the Company is pursuant to a transaction is a Stock Saledescribed in clause (a) of the definition of Sale of the Company, to sell the same proportion of shares of capital stock of the Company Units beneficially held by such Stockholder Member as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their SharesUnits, and, except as permitted in Section 3.3 6.2 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3Article VI, including without limitation executing and delivering instruments of conveyance and transfertransfer (free and clear of impermissible liens, claims and encumbrances), and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share unit certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company Units owned by such party Member or Affiliate in a voting trust or subject any Shares Units to any arrangement or agreement with respect to the voting of such SharesUnits, unless specifically requested to do so by the acquiror in connection with the such Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;and
(f) if the consideration to be paid in exchange for the Shares Units pursuant to this Section 3 Article VI includes any securities and due receipt thereof by any Stockholder Member would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder Member of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder Member in lieu thereof, against surrender of the Shares Units which would have otherwise been sold by such StockholderMember, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder Member would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder RepresentativeUnits.
Appears in 3 contracts
Samples: Operating Agreement, Operating Agreement (Rhythm Holding Company, LLC), Operating Agreement (Rhythm Holding Company, LLC)
Actions to be Taken. In the event that (i) Investors holding at least a majority of the shares of Common Stock issuable upon conversion of the then outstanding shares Preferred Stock (the “Selling Investors”); and (ii) the holders of a majority of the then outstanding shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”), and (ii) the Board of DirectorsStock, approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section Subsection 3.3 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Representative in connection with its service as the Stockholder Representative, absent fraud, bad faith, fraud or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 3 contracts
Samples: Voting Agreement (Winc, Inc.), Voting Agreement (Winc, Inc.), Voting Agreement (Winc, Inc.)
Actions to be Taken. In the event that (i) the holders of a majority of the shares of Common Stock then issuable or initially issued upon conversion to Cxxxx Xxxxxxx (including any such shares that have been transferred to any permitted transferees), (ii) the holders of a majority of the then-outstanding shares of Series Seed Preferred Stock Stock, voting together as a single class on an as-converted basis (collectively with the holders of shares described in clause (i) above, the “Selling InvestorsRights Holders”), and (iiiii) the Board of DirectorsDirectors (collectively, the “Electing Holders”) approve a Sale of the Company either (A) in writingwriting pursuant to a written consent or (B) in a duly-called meeting of the Board or a duly-called meeting of the holders of the applicable Shares, as applicable, in either case specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approvalapproval (including without limitation approval of any class or series of voting securities of the Company), then with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, and raise no objections to, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the applicable Selling Investors Rights Holders to the Person to whom the Selling Investors Rights Holders propose to sell their Shares, and, except as permitted in Section Subsection 3.3 below, on the same terms and conditions as the applicable Selling InvestorsRights Holders;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Rights Holders in order to carry out the terms and provision of this Section 3, including without limitation executing and delivering (i) instruments of conveyance and transfer, and (ii) any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, filing and share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances), (iii) such agreements and instruments reasonably necessary to provide the representations, warranties, indemnities, covenants and conditions relating to the Sale of the Company (subject to Subsection 3.3(c) below), and (iv) any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party Stockholder or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person Person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling InvestorsRights Holders, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Representative in connection with its service as the Stockholder Representative, absent fraud, bad faith, fraud or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 3 contracts
Samples: Voting Agreement (Denim LA, Inc.), Voting Agreement (Denim LA, Inc.), Voting Agreement (Denim LA, Inc.)
Actions to be Taken. In the event that (i) the holders of a majority of the shares of Common Stock then issued or issuable or issued upon conversion of the shares of Series B Preferred Stock voting together as a single class (the “Selling Investors”), and ; (ii) the Board Board; and (iii) the holders of Directorsa majority of the then outstanding shares of Common Stock and Preferred Stock, voting as a single class, each of (i) and (iii) voting as a separate class (collectively, (i)-(iii) are the “Electing Holders”) approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section Subsection 3.3 below, on the same terms and conditions as the Selling Investorsother stockholders of the Company;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, any associated indemnity agreement, or escrow agreement, any associated voting, support, or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) to refrain from (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); ) asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (xi) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (yii) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (xi) to consent to (iA) the appointment of such Stockholder Representative, (iiB) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iiiC) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (yii) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, gross negligence or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 3 contracts
Samples: Voting Agreement (MedicaMetrix, Inc/De), Voting Agreement (MedicaMetrix, Inc/De), Voting Agreement (MedicaMetrix, Inc/De)
Actions to be Taken. In the event that (i) the holders of at least a majority of the shares of Common Stock that is then outstanding (other than shares of Common Stock issued upon the exercise of options) and the shares of Common Stock then issuable or issued upon conversion of the outstanding shares of Series A Preferred Stock, Series A-1 Preferred Stock, Series A-2 Preferred Stock and Series B Preferred Stock, voting together as a single class on an as-converted basis (the “Selling Investors”), ; and (ii) the Board of Directors, Directors approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject and any consent in relation to satisfaction of each such Sale of the conditions set forth Company required under the protective provisions contained in Subsection Sections 3.2 and 3.3 belowof the Restated Certificate has been obtained, then each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares shares of capital stock of the Company that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares such shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors Electing Holders to the Person to whom the Selling Investors Electing Holders propose to sell their Shares, and, except as permitted set forth in Section 3.3 below, on the same terms and conditions as the Selling InvestorsElecting Holders;
(c) if such transaction is a Stock Sale, to sell the number of shares of capital stock of the Company determined by the Board on the terms and conditions determined by the Board, provided that each Stockholder shall be required to sell only a proportionate number of shares as is being sold by other Stockholders, and except as set forth in Section 3.3 below;
(d) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Electing Holders, in order to carry out the terms and provision provisions of this Section 3, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, any associated voting, support or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(de) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares shares to any arrangement or agreement with respect to the voting of such Sharesshares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (if) to refrain from (i) exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); ) asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors Electing Holders or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(fg) if the consideration to be paid in exchange for the Shares shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Sharesshares; and
(gh) in the event that the Selling InvestorsElecting Holders, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Representative in connection with its service as the Stockholder Representative, absent fraud, bad faith, fraud or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 3 contracts
Samples: Voting Agreement (Mode Mobile, Inc.), Voting Agreement (Mode Mobile, Inc.), Voting Agreement (Mode Mobile, Inc.)
Actions to be Taken. In the event that (i) the holders of at least a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of the then-outstanding Preferred Stock voting together as a single class (the “Selling Investors”), and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 2 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agrees:
(a) if such transaction requires stockholder approval, with respect to all Voting Shares and/or any other Company securities that such Stockholder owns or over which such Stockholder otherwise exercises voting power, (i) to vote (in person, by proxy or by action by written consent, as applicable) all Voting Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company, and (ii) to be present, in person or by proxy, as a holder of Voting Shares or other securities of the Company, at any related stockholder meetings that have been duly noticed and held, and be counted for the purposes of determining the presence of a quorum at such meetings;
(b) if such transaction is a Stock Salesale of stock by Selling Investors, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 below, and on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 32, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates affiliates not to deposit, except as provided in this Agreement, any Shares voting securities of the Company owned by such party or Affiliate affiliate in a voting trust or subject any Shares such voting securities to any arrangement or agreement with respect to the voting of such Sharesshares of capital stock, unless specifically requested to do so by the acquiror acquirer, the Company or the Selling Investors in connection with the Sale of the Company;; and
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 3 contracts
Samples: Stockholders' Agreement, Stockholders’ Agreement (Arsanis, Inc.), Stockholders' Agreement (Arsanis, Inc.)
Actions to be Taken. In If, the event that (i) the holders of a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class Supermajority Holders (the “Selling Investors”), "Electing Holders") and (ii) the Board of Directors, approve a Sale of the Company specifying, in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of then each of the conditions set forth in Subsection 3.3 below, each Stockholder Shareholder and the Company hereby agreesshall:
(a) if such transaction requires stockholder shareholder approval, with respect to all Shares that such Stockholder Shareholder owns or over which such Stockholder Shareholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consentresolution, as applicable) all Shares in favor favour of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate articles and notice of articles of the Company (as may be amended from time to time) (the "Articles") required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Share Sale, to sell the same proportion of shares of capital stock of the Company Shares beneficially held by such Stockholder Shareholder as is being sold by the Selling Investors Electing Holders to the Person to whom the Selling Investors Electing Holders propose to sell their Shares, and, except as permitted in Section 3.3 below3.3, on the same terms and conditions as the Selling InvestorsElecting Holders;
(c) to execute and deliver all related documentation and take any such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Electing Holders in order to carry out the terms and provision of this Section 3, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, amalgamation agreement, arrangement agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their Affiliates and Associates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party Shareholder or any Affiliate or Associate of such Shareholder in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ dissent rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder Shareholder would require under applicable law (xi) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (yii) the provision to any Stockholder Shareholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “"accredited investors” " as defined in Section 1.1 of Regulation 45-106 respecting Prospectus Exemptions in Québec and in National Instrument 45-106 elsewhere in Canada or as defined in Regulation D promulgated under the United States Securities Act of 1933, as amendedamended (in either case, "Accredited Investors"), the Company may cause to be paid to any such Stockholder Shareholder in lieu thereof, against surrender of the Shares which that would have otherwise been sold by such StockholderShareholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which that such Stockholder Shareholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in if the event that the Selling InvestorsElecting Holders, in connection with such Sale of the Company, appoint a stockholder shareholder representative (the “Stockholder "Shareholder Representative”") with respect to matters affecting the Stockholders Shareholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (xi) to consent to (i1) the appointment of such Stockholder Shareholder Representative, (ii2) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii3) the payment of such Stockholder’s Shareholder's pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Shareholder Representative in connection with such Stockholder Shareholder Representative’s 's services and duties in connection with such Sale of the Company and its related service as the representative of the StockholdersShareholders, and (yii) not to assert any claim or commence any suit against the Stockholder Shareholder Representative or any other Stockholder Shareholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Shareholder Representative in connection with its service as the Stockholder Shareholder Representative, absent fraud, bad faith, fraud or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativewilful misconduct.
Appears in 3 contracts
Samples: Subscription Agreement (Naqi Logix Inc.), Voting Agreement (Naqi Logix Inc.), Voting Agreement (Naqi Logix Inc.)
Actions to be Taken. In the event that (i) the holders of a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”), and (ii) the Board of Directors, [***] approve a Sale of the Company in writingCompany, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agrees:
(a) if such transaction requires stockholder approval, agrees with respect to all Shares that such Stockholder owns which it own(s) or over which such Stockholder it otherwise exercises voting poweror dispositive authority:
(i) in the event such transaction is to be brought to a vote at a stockholder meeting, after receiving proper notice of any meeting of stockholders of the Company, to vote on the approval of a Sale of the Company, to be present, in person or by proxy, as a holder of shares of voting securities, at all such meetings and to be counted for the purposes of determining the presence of a quorum at such meetings;
(ii) to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, of such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling Investors;
(ciii) to execute and deliver waive all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or and rights of appraisal under applicable law at any time with respect to such Sale of the Company (in each such case, whether before or after the consummation of the Sale of the Company, or (ii); ) and refrain from asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, Company or the consummation of the transactions contemplated thereby;
(fiv) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Requisite Parties (in each such case, whether before or after the consummation of the Sale of the Company);
(v) if the Sale of the Company is structured as a Stock Sale, to sell the same proportion of his, her or its Shares as is being sold by the Requisite Parties;
(vi) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares owned by such Stockholder or Affiliate in a voting trust or subject any such Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquirer in connection with the Sale of the Company;
(vii) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 4 includes any securities and due receipt thereof by any Stockholder would require under applicable law (xi) the registration or qualification of such securities or of any person Person as a broker or dealer or agent with respect to such securities or (yii) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(gviii) in unless, if any portion of the event that consideration payable to the Selling Investors, stockholders of the Company in connection with such Sale transaction consists of securities unlisted on a public stock exchange, then upon receipt from a Stockholder, of written notice that, based on the advice of legal counsel, the payment or distribution of such securities to the Stockholder, would cause the Stockholder to be in violation of any law, regulation, material contractual obligation or written policy of the Stockholder, the Company shall cause the purchase agreement, merger agreement or related transaction documents to provide the Stockholder with certain stockholder rights to the extent necessary to enable the Stockholder to hold such securities without violating such contract or policy, and if the Company is unable to satisfy such requirements, then the Company shall cause to be paid to the Stockholder, in lieu thereof, against surrender of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken shares which would have otherwise been sold by the Stockholder Representative, within an amount in cash equal to the scope fair value (as determined in good faith by the Company) of the Stockholder Representative’s authority, in connection with its service as securities which the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by would otherwise receive as of the Stockholder Representativedate of the issuance of such securities in exchange for the capital stock.
Appears in 3 contracts
Samples: Investors’ Rights Agreement (PureTech Health PLC), Investors’ Rights Agreement (PureTech Health PLC), Investors’ Rights Agreement (PureTech Health PLC)
Actions to be Taken. In Subject to Section 3.4 herein, in the event that (i) the Board and (ii) the holders of a majority at least sixty percent (60%) of the shares of Common Stock then issuable or issued upon conversion of the shares of and Preferred Stock Stock, voting together as a single class and on an as-converted basis (the “Selling Investors”), and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agrees:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate Charter required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and;
(g) in the event that the Selling InvestorsHolders, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the any indemnification, escrow or similar obligations applicable definitive transaction agreements following consummation of to or arising directly or indirectly from such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense escrow or similar fund in connection with any such indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its the related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 3 contracts
Samples: Voting Agreement (Yext, Inc.), Voting Agreement (Yext, Inc.), Voting Agreement (Yext, Inc.)
Actions to be Taken. In the event that (i) the holders of (x) a majority in voting power of the shares Preferred Stock held by the Stockholders and (y) a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Series D Convertible Preferred Stock voting together as a single class held by the Stockholders (the “Selling Investors”), ; and (ii) the Board of DirectorsDirectors (collectively, the “Electing Holders”) approve a Sale of the Company in writing, specifying that this Section 3 4.3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agreesagree:
(ai) if such transaction requires stockholder approval, with respect to all Shares Voting Securities that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares Voting Securities in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate of Incorporation required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(bii) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their SharesVoting Securities, and, except as permitted in Section 3.3 4.3(b) below, on the same terms and conditions as the Selling Investors;
(ciii) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 34.3, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(div) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares Voting Securities of the Company owned by such party or Affiliate in a voting trust or subject any Shares Voting Securities to any arrangement or agreement with respect to the voting of such SharesVoting Securities, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (iv) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(fvi) if the consideration to be paid in exchange for the Shares Voting Securities pursuant to this Section 3 4.3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares Voting Securities which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the SharesVoting Securities; and
(gvii) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Representative in connection with its service as the Stockholder Representative, absent fraud, bad faith, fraud or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 3 contracts
Samples: Stockholders Agreement (Centrexion Therapeutics Corp), Stockholders Agreement (Centrexion Therapeutics Corp), Stockholders Agreement (Centrexion Therapeutics Corp)
Actions to be Taken. In the event that that: (i) the holders of a majority at least sixty percent (60%) of the shares of Common Stock then issued or issuable or issued upon conversion of the shares of Preferred Stock Stock, voting together as a single class (the “Selling Investors”)class, and (ii) the Board holders of Directorsat least sixty percent (60%) of the then outstanding shares of Common Stock (collectively, the “Selling Stockholders”) approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agrees:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all such Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate Company Charter required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company Shares beneficially held by such Stockholder as is being sold by the Selling Investors Stockholders to the Person person to whom the Selling Investors Stockholders propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling InvestorsStockholders;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Stockholders in order to carry out the terms and provision of this Section 3, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their Affiliates Affiliated Entities not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;and
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (xi) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (yii) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedamended (the “Act”), the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 3 contracts
Samples: Voting Agreement, Voting Agreement (BIND Therapeutics, Inc), Voting Agreement (BIND Therapeutics, Inc)
Actions to be Taken. In the event that (i) the holders of a majority at least 65% of the shares of Common Stock then issuable or issued upon conversion of the then-outstanding shares of Preferred Stock (including any Common Stock that has been issued upon the conversion of Preferred Stock), voting together as a single class (the “Requisite Holders”) (the “Selling InvestorsPreferred Stockholders”), and (ii) a majority of the Board members of Directorsthe board of directors of the Company, approve a Sale of the Company in writing, specifying that this Section 3 section shall apply to such transaction, then, subject to satisfaction of then each of the conditions set forth in Subsection 3.3 below, each Stockholder and the Company Athyrium Investor hereby agrees:
(aA) if such transaction requires stockholder approval, with respect to all Warrant Shares that such Stockholder Athyrium Investor owns or over which such Stockholder Athyrium Investor otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Warrant Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate of Incorporation required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(bB) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company Warrant Shares beneficially held by such Stockholder Athyrium Investor as is being sold by the Selling Investors Preferred Stockholders to the Person buyer to whom the Selling Investors Preferred Stockholders propose to sell their Shares, and, except as permitted in Section 3.3 below, Warrant Shares on the same terms and conditions as the Selling InvestorsPreferred Stockholders;
(cC) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Preferred Stockholders in order to carry out the terms and provision provisions of this Section 3section, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(dD) not to deposit, and to cause their Affiliates its affiliates not to deposit, except as provided in this Agreement, any Warrant Shares of the Company owned by such party or Affiliate in a voting trust or subject any Warrant Shares to any arrangement or agreement with respect to the voting of such Sharesshares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (iE) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(fF) if the consideration to be paid in exchange for the Warrant Shares pursuant to this Section 3 section includes any securities securities, and due receipt thereof by any Stockholder stockholder of the Company would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder stockholder of the Company of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder Athyrium Investor in lieu thereof, against surrender of the Warrant Shares which would have otherwise been sold by such StockholderAthyrium Investor, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder Athyrium Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Warrant Shares; and
(gG) in the event that the Selling InvestorsPreferred Stockholders, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders stockholder of the Company under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (ia) the appointment of such Stockholder Athyrium Investor Representative, (iib) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, obligations and (iiic) the payment of such StockholderAthyrium Investor’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Athyrium Investor Representative in connection with such Stockholder Athyrium Investor Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholdersstockholders of the Company, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder stockholder of the Company with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Representative in connection with its service as the Stockholder Representative, absent fraudfraud gross negligence, bad faithwillful misconduct, or willful misconduct and (z) execute and deliver as otherwise set forth in any power-of-attorney or other documentation reasonably requested by agreement governing the conduct of the Stockholder Representative.
Appears in 2 contracts
Samples: Credit Agreement (Lpath, Inc), Common Stock Purchase Warrant (Lpath, Inc)
Actions to be Taken. In the event that (i) the holders of a majority of Board and (ii) the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class Requisite Holders (the “Selling Investors”), and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section Subsection 3.3 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, any associated indemnity agreement, or escrow agreement, any associated voting, support, or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) to refrain from (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedamended (the “Securities Act”), the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, gross negligence or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 2 contracts
Samples: Voting Agreement (PureTech Health PLC), Voting Agreement (PureTech Health PLC)
Actions to be Taken. In the event that (i) any time on or after the holders of a majority fifth (5th) anniversary of the shares date of Common Stock then issuable this Agreement the Required Holders or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”), and (ii) any time prior to the Board fifth (5th) anniversary of Directorsthe date of this Agreement, (x) the Required Holders and (y) the Board, in either such case, approve a Sale of the Company LLC in writing, specifying that this Section 3 11.03 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 11.03(c) below, each Stockholder Member and the Company LLC hereby agrees:
(ai) if such transaction requires stockholder Member approval, with respect to all Shares that such Stockholder Member owns or over which such Stockholder Member otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company LLC (together with any related amendment or restatement to the Restated Certificate this Agreement required in order to implement such Sale of the CompanyLLC) and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company LLC to consummate such Sale of the CompanyLLC;
(bii) if such transaction is a Stock Share Sale, to sell the same proportion of shares of capital stock of the Company LLC beneficially held by such Stockholder Member as is being sold by the Selling Investors Required Holders to the Person person to whom the Selling Investors Required Holders propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling Investors;
(ciii) to execute and deliver all related documentation and take such other action in support of the Sale of the Company LLC as shall reasonably be requested by the Company LLC or the Selling Investors Required Holders (in each such case, whether before or after the consummation of the Sale of the LLC) in order to carry out the terms and provision of this Section 311.03, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, any associated indemnity agreement, or escrow agreement, any associated voting, support, or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(div) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company LLC owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the CompanyLLC;
(ev) to affirmatively waive any and all dissenters and appraisal rights that such Member may have under applicable law in connection with a Sale of the LLC (whether before or after the consummation of the Sale of the LLC) and to refrain from (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or LLC and (ii); ) asserting any claim or commencing any suit (x) challenging the Sale of the Company LLC or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors Required Holders or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the CompanyLLC, or the consummation of the transactions contemplated thereby;
(fvi) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 11.03 includes any securities and due receipt thereof by any Stockholder Member would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder Member of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company LLC may cause to be paid to any such Stockholder Member in lieu thereof, against surrender of the Shares which would have otherwise been sold by such StockholderMember, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder Member would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(gvii) in the event that the Selling InvestorsRequired Holders, in connection with such Sale of the CompanyLLC, appoint a stockholder Member representative (the “Stockholder Member Representative”) with respect to matters affecting the Stockholders Members under the applicable definitive transaction agreements following consummation of such Sale of the CompanyLLC, (xA) to consent to (i1) the appointment of such Stockholder Member Representative, (ii2) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii3) the payment of such StockholderMember’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Member Representative in connection with such Stockholder Member Representative’s services and duties in connection with such Sale of the Company LLC and its related service as the representative of the StockholdersMembers, and (yB) not to assert any claim or commence any suit against the Stockholder Member Representative or any other Stockholder Member with respect to any action or inaction taken or failed to be taken by the Stockholder Member Representative, within the scope of the Stockholder Member Representative’s authority, in connection with its service as the Stockholder Member Representative, absent fraud, bad faith, gross negligence or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 2 contracts
Samples: Operating Agreement (Day One Biopharmaceuticals Holding Co LLC), Operating Agreement (Day One Biopharmaceuticals Holding Co LLC)
Actions to be Taken. In the event that (i) the Requisite Holders; (ii) the holders of a majority of the then outstanding shares of Common Stock then (other than those issued or issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (Stock) held by the “Selling Investors”), Key Holders; and (iiiii) the Board of DirectorsBoard, approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection Section 3.3 below, each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors Requisite Holders to the Person to whom the Selling Investors Requisite Holders propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling Investorsother stockholders of the Company;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Requisite Holders in order to carry out the terms and provision of this Section 3, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, any associated indemnity agreement, or escrow agreement, any associated voting, support or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) to refrain from (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); ) asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors Requisite Holders or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 2 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling InvestorsRequisite Holders, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, gross negligence or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 2 contracts
Samples: Voting Agreement (Gryphon Online Safety, Inc.), Voting Agreement (Gryphon Online Safety, Inc.)
Actions to be Taken. In the event that the holders of 75% of the Preferred Stock and the Common Stock of the Company (voting together as a single class and on an as-converted basis) (which 75% must include (i) the holders of a majority of the outstanding Series C Stock or shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Series C Stock voting together if, as a single class result of the Sale of the Company (the “Selling Investors”as defined below), the holders of the Series C Stock would receive from the proceeds of such Sale of the Company an amount less than the Original Issue Price (as defined in the Certificate of Incorporation) of the Series C Stock in respect of each share of Series C Stock held by them and (ii) the Board holders of Directorsa majority of the outstanding Series D Stock or shares of Common Stock issued upon conversion of the Series D Stock if, approve as a result of the Sale of the Company (as defined below), the holders of the Series D Stock would receive from the proceeds of such Sale of the Company an amount less than the Original Issue Price (as defined in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction the Certificate of Incorporation) of the Series D Stock in respect of each share of Series D Stock held by them) (collectively, the “Requisite Parties”) approve a transaction or series of related transactions that qualifies as a “Liquidation Event” as defined in the Certificate of Incorporation, including, without limitation, the closing of the conditions set forth transfer (whether by merger, consolidation or otherwise), in Subsection 3.3 belowone transaction or a series of related transactions, to a person or group of affiliated persons (other than an underwriter of the Company’s securities), of the Company’s securities if, after such closing, such person or group of affiliated persons would hold 50% or more of the outstanding voting stock of the Company (or the surviving or acquiring entity) (a “Stock Sale”), (any such transaction or series of related transactions are referred to herein as a “Sale of the Company”), then each Stockholder and the Company hereby agrees:
(a) if such transaction requires stockholder approval, agrees with respect to all Shares that such Stockholder owns which it own(s) or over which such Stockholder it otherwise exercises voting poweror dispositive authority (with all such voting rights or dispositive authority in respect of shares of capital stock of the Company owned by SoftBank Group Capital Limited to be exercised by the Joint Investment Committee):
(a) in the event such transaction is to be brought to a vote at a stockholder meeting, after receiving proper notice of any meeting of stockholders of the Company, to vote on the approval of a Sale of the Company, to be present, in person or by proxy, as a holder of shares of voting securities, at all such meetings and be counted for the purposes of determining the presence of a quorum at such meetings;
(b) to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, of such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(bc) if to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such transaction is a Stock Sale, to sell the same proportion of shares of capital stock Sale of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling InvestorsCompany;
(cd) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company;
(e) if the Sale of the Company is structured as a sale of stock of the Company, each Stockholder shall agree to sell his, her or the Selling Investors in order to carry out its Shares on the terms and provision of this Section 3, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documentsconditions approved by the Requisite Parties;
(df) not to deposit, and to cause their Affiliates affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party Stockholder or Affiliate affiliate in a voting trust or subject any such Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;; and
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(fg) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 4 includes any securities and due receipt thereof by any Stockholder would require under applicable law (xi) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (yii) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedamended (the “Act”), the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 2 contracts
Samples: Voting Agreement (Lemonade, Inc.), Voting Agreement (Lemonade, Inc.)
Actions to be Taken. In the event that (i) the holders of at least a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Series A Preferred Stock Stock, voting together as a single class and on an as converted to Common Stock basis (collectively, the “Selling Investors”), and (ii) the Board of Directors, Directors approve a Sale of the Company to an unaffiliated third party in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section Subsection 3.3 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Representative in connection with its service as the Stockholder Representative, absent fraud, bad faith, fraud or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 2 contracts
Samples: Voting Agreement (Basil Street Cafe, Inc.), Voting Agreement (Basil Street Cafe, Inc.)
Actions to be Taken. In the event that (ia) the holders of a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock Stock, voting together as a single class on an as-converted to Common Stock basis (collectively, the “Selling Investors”), (b) the Board, and (iic) if the Board Sale of Directorsthe Company is a SPAC Transaction that is not a Qualified SPAC Transaction (as defined in the Restated Certificate), the holders of at least two-thirds (2/3rds) of the outstanding shares of Series C Preferred Stock, voting separately as a single class, approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person Person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Representative in connection with its service as the Stockholder Representative, absent fraud, bad faith, fraud or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 2 contracts
Samples: Voting Agreement (Caribou Biosciences, Inc.), Voting Agreement (Caribou Biosciences, Inc.)
Actions to be Taken. In the event that (i) either (A) the holders of a majority of the shares of Common Series C Preferred Stock then issuable or issued upon conversion (B) in the case of a Sale of the Company which will result in the holders of Series C Preferred Stock receiving an aggregate amount of proceeds per share pursuant to Section 2 of Part B of Article FOURTH of the Restated Certificate that, when added to any dividends per share previously paid on account of shares of Series C Preferred Stock, exceeds $11.330853 per share (subject to appropriate adjustment in the event of a stock split, stock dividend, combination, reclassification or similar event affecting the Series C Preferred Stock), the holders of a majority of the shares of Series A Preferred Stock and Series B Preferred Stock, voting together as a single class on an as-converted to Common Stock basis (as applicable, the “Selling Investors”), and (ii) the Board of Directors, Directors approve a Sale of the Company in writing, specifying that this Section 3 2 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 Subsection 2.3 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 32, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 2 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, (as amendeddefined below), the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Representative in connection with its service as the Stockholder Representative, absent fraud, bad faith, fraud or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 2 contracts
Samples: Stockholders’ Agreement (Sancilio Pharmaceuticals Company, Inc.), Stockholders’ Agreement (Sancilio Pharmaceuticals Company, Inc.)
Actions to be Taken. In the event that (i) the holders of a majority at least seventy-five percent (75%) of the shares of Common Stock then issued or issuable or issued upon conversion of the shares of Series A Preferred Stock voting together as a single class (the “Selling Investors”), and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Representative in connection with its service as the Stockholder Representative, absent fraud, bad faith, fraud or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 2 contracts
Samples: Voting Agreement (Lantern Pharma Inc.), Voting Agreement (Lantern Pharma Inc.)
Actions to be Taken. In the event that (i) the holders of a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class Lead Investor Majority (the “Selling Investors”), ) and (ii) the Board of Directors, approve a Sale Transaction (which approval of the Company Selling Investors must be in writing), specifying that this Section 3 8 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 Section 8.2 below, each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) Transaction and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the CompanyTransaction;
(b) if such transaction is a transaction or series of related transactions in which a Person, or a group of related Persons, acquires from stockholders of the Company shares representing more than fifty percent (50%) of the outstanding voting power of the Company (collectively, a “Stock Sale”), to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 8.2 below, on the same terms and conditions as the Selling Investorsother stockholders of the Company;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company Transaction as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 38, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, any associated indemnity agreement, or escrow agreement, any associated voting, support, or ACTIVE/119579555.22 joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the CompanyTransaction;
(e) to refrain from (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); ) asserting any claim or commencing any suit (x) challenging the Sale of the Company Transaction or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the CompanyTransaction, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 8 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the CompanyTransaction, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders Stockholder under the applicable definitive transaction agreements following consummation of such Sale of the CompanyTransaction, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company Transaction and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, gross negligence or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (PureTech Health PLC), Investors’ Rights Agreement (PureTech Health PLC)
Actions to be Taken. In the event that (iA) the holders of a majority of Requisite Preferred Holders and the shares of Common Stock then issuable or issued upon conversion of the shares of Requisite Series B Preferred Stock voting together Holders as a single class required under Section 3.05(c) (collectively, the “Selling InvestorsHolders”), ) and (iiB) the Board of Directors, Managers approve a Sale of the Company in writing, specifying that this Section 3 10.07(b) shall apply to such transaction, then, subject to satisfaction of then each of the conditions set forth in Subsection 3.3 below, each Stockholder and the Company Member hereby agrees:
(ai) if such transaction requires stockholder Member approval, with respect to all Shares Units that such Stockholder Member owns or over which such Stockholder Member otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares Units in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate this Agreement required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(bii) if such transaction is a Stock Unit Sale, to sell the same proportion of shares of capital stock of the Company Units beneficially held by such Stockholder Member as is being sold by the Selling Investors Holders to the Person to whom the Selling Investors Holders propose to sell their SharesUnits, and, except as permitted in Section 3.3 10.07(c) below, on the same terms and conditions as the Selling InvestorsHolders;
(ciii) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Holders in order to carry out the terms and provision provisions of this Section 310.07, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(div) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company Units owned by such party or Affiliate in a voting trust or subject any Shares Units to any arrangement or agreement with respect to the voting of such SharesUnits, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) (iv) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(fvi) if the consideration to be paid in exchange for the Shares Units pursuant to this Section 3 10.07 includes any securities and due receipt thereof by any Stockholder Member would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder Member of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder Member in lieu thereof, against surrender of the Shares Units which would have otherwise been sold by such StockholderMember, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder Member would otherwise receive as of the date of the issuance of such securities in exchange for the SharesUnits; and
(gvii) in the event that the Selling InvestorsHolders, in connection with such Sale of the Company, appoint a stockholder member representative (the “Stockholder Member Representative”) with respect to matters affecting the Stockholders Members under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Member Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such StockholderMember’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Member Representative in connection with such Stockholder Member Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the StockholdersMembers, and (y) not to assert any claim or commence any suit against the Stockholder Member Representative or any other Stockholder Member with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Member Representative in connection with its service as the Stockholder Member Representative, absent fraud, bad faith, fraud or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Apogee Therapeutics, Inc.), Limited Liability Company Agreement (Apogee Therapeutics, LLC)
Actions to be Taken. In the event that (iA) the holders of a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Requisite Preferred Stock voting together as a single class Holders (the “Selling Investors”), and (iiB) the Board of Directors, Directors approve a Sale of the Company in writing, specifying that this Section 3 10.06 shall apply to such transaction, then, subject to satisfaction of then each of the conditions set forth in Subsection 3.3 below, each Stockholder and the Company Member hereby agrees:
(ai) if such transaction requires stockholder Member approval, with respect to all Shares Units that such Stockholder Member owns or over which such Stockholder Member otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares Units in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate this Agreement required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(bii) if such transaction is a Stock Unit Sale, to sell the same proportion of shares of capital stock of the Company Units beneficially held by such Stockholder Member as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their SharesUnits, and, except as permitted in Section 3.3 10.06(c) below, on the same terms and conditions as the Selling Investors;
(ciii) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 310.06, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(div) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company Units owned by such party or Affiliate in a voting trust or subject any Shares Units to any arrangement or agreement with respect to the voting of such SharesUnits, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) (iv) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;and
(fvi) if the consideration to be paid in exchange for the Shares Units pursuant to this Section 3 10.06 includes any securities and due receipt thereof by any Stockholder Member would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder Member of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder Member in lieu thereof, against surrender of the Shares Units which would have otherwise been sold by such StockholderMember, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder Member would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder RepresentativeUnits.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Cullinan Oncology, LLC), Limited Liability Company Agreement (Cullinan Oncology, LLC)
Actions to be Taken. In the event that (i) the holders of a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Requisite Preferred Stock voting together as a single class Holders (the “Selling Investors”), and ; (ii) the Board Board; (iii) the Founder Holders; (iv) if the amount per share payable in respect of Directorsoutstanding shares of Series D Preferred Stock in connection with such Sale of the Company is less than twice the Series D Original Issue Price (as defined in the Certificate of Incorporation), the holders of a majority of the outstanding Series D Preferred Stock; and (v) if the amount per share payable in respect of outstanding shares of Series D-1 Preferred Stock in connection with such Sale of the Company is less than twice the Series D-1 Original Issue Price (as defined in the Certificate of Incorporation), the holders of a majority of the outstanding Series D-1 Preferred Stock approve a Sale of the Company in writing, specifying that this Section 3 7 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 Subsection 7.2 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 37, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 7 includes any securities and due receipt thereof by any Stockholder would require under applicable law law: (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Representative in connection with its service as the Stockholder Representative, absent fraud, bad faith, fraud or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 2 contracts
Samples: Stockholders Agreement (Atea Pharmaceuticals, Inc.), Stockholders Agreement (Atea Pharmaceuticals, Inc.)
Actions to be Taken. In the event that (i) the holders of a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”), and (ii) the Board of Directors, approve approves a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, thenor in the case of a Stock Sale, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold offered by other holders of capital stock of the Selling Investors Company intending to participate in the Stock Sale regardless of this Section 3.2(b) (the “Participating Holders”) to the Person to whom the Selling Investors Participating Holders propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling InvestorsParticipating Holders;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents, in each case so long as consistent with the terms herein and the Restated Certificate;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling InvestorsStockholders, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwisefund) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Representative in connection with its service as the Stockholder Representative, absent fraudfraud or willful misconduct. For the avoidance of doubt, bad faithnothing in this Section 3.2 shall require any Stockholder (or any of its Affiliates) to consent to any Sale of the Company under, or willful misconduct and (z) execute and deliver take any power-of-attorney action under, any commercial agreement to which it is a party with the Company or other documentation reasonably requested any indebtedness for borrowed money owed to it by the Stockholder RepresentativeCompany or any of its Subsidiaries.
Appears in 2 contracts
Samples: Preferred Stock Purchase Agreement (Ovid Therapeutics Inc.), Series B 1 Preferred Stock Purchase Agreement (Ovid Therapeutics Inc.)
Actions to be Taken. In the event that (i) the holders of at least sixty-five percent (65%) of the then outstanding shares of Series C Preferred Stock and the holders of at least sixty percent (60%) of the then outstanding shares of Series B Preferred Stock (collectively, the “Electing Holders”) and (ii) a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”), and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 2.6 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agreesagree:
(ai) if such transaction requires stockholder approval, with respect to all Shares that Capital Stock over which such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares such Capital Stock in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(bii) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company Common Stock, Preferred Stock and Derivative Securities beneficially held by such Stockholder as is being sold by the Selling Investors Electing Holders to the Person or Persons to whom the Selling Investors Electing Holders propose to sell their SharesCommon Stock, Preferred Stock and Derivative Securities, and, except as permitted in Section 3.3 2.6(b) below, on the same terms and conditions as the Selling InvestorsElecting Holders;
(ciii) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Electing Holders in order to carry out the terms and provision of this Section 32.6, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(div) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company Common Stock, Preferred Stock and/or Derivative Securities owned by such party Stockholder or Affiliate in a voting trust or subject any Shares Common Stock, Preferred Stock and/or Derivative Securities to any arrangement or agreement with respect to the voting of such SharesCommon Stock, Preferred Stock and/or Derivative Securities, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (iv) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(fvi) if the consideration to be paid in exchange for the Shares Common Stock, Preferred Stock and Derivative Securities pursuant to this Section 3 2.6 includes any securities and due receipt thereof by any Stockholder would require under applicable law (xA) the registration or qualification of such securities or of any person Person as a broker or dealer or agent with respect to such securities or (yB) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which such Stockholder’s Common Stock, Preferred Stock and/or Derivative Securities, as applicable, that would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which that such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the SharesCommon Stock, Preferred Stock and/or Derivative Securities; and
(gvii) in the event that the Selling InvestorsElecting Holders, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (xA) to consent to (ix) the appointment of such Stockholder Representative, (iiy) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iiiz) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (yB) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Representative in connection with its service as the Stockholder Representative, absent fraud, bad faith, fraud or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 2 contracts
Samples: Stockholders' Agreement, Stockholders Agreement (G1 Therapeutics, Inc.)
Actions to be Taken. In the event that each of (i) a majority of the Board of Directors, which majority must include (A) all the Highland Designees and (B) a majority of the Rainy Day Designees (for greater certainty, excluding in each case the Independent Director), (ii) the holders of at least a majority of the shares share capital of the Company (assuming the exercise and conversion of all outstanding options, warrants and convertible securities), acting together as a single class, (iii) the holders of at least a majority of the Common Stock Shares then issued or issuable or issued upon conversion of the Series A Preferred Shares and the Series A-l Preferred shares of Preferred Stock voting (acting together as a single class class), (the “Selling Investors”), ) for so long as Highland holds at least a majority of the Common Shares then issued or issuable upon conversion of the Series A Preferred Shares and (iiiv) the Board holders of Directorsat least a majority of the Common Shares then issued or issuable upon conversion of the Junior Preferred Shares, approve a Sale of the Company in writing, specifying that this Section 3 2 shall apply to such transaction, then, subject to satisfaction of then each of the conditions set forth in Subsection 3.3 below, each Stockholder Shareholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder shareholder approval, with respect to all Shares that such Stockholder Shareholder owns or over which such Stockholder Shareholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate Amended Articles required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Share Sale, to sell the same proportion of shares of share capital stock of the Company beneficially held by such Stockholder Shareholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 Subsection 2.3 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 32, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided Provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 2 includes any securities and due receipt thereof by any Stockholder Shareholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder Shareholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in either Regulation D promulgated under the Securities Act of 19331933 or National Instrument 45-106 -Prospectus and Registration Exemptions of the Canadian Securities Administrators (“NI 45-106”), in each case, as amended, the Company may cause to be paid to any such Stockholder Shareholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such StockholderShareholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder Shareholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares;
(g) if the consideration to be paid in exchange for the Shares pursuant to this Section 2 includes any securities and the Selling Investors enter into any pre-arranged sale of such securities on or prior to closing of the Sale of the Company then all of the Shareholders shall be notified of the particulars of such arrangement or proposed arrangement and any one or more of the Shareholders shall have the right to benefit from the same terms and conditions as the Seller Investors with respect to such pre-arranged sale; and
(gh) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder shareholder representative (the “Stockholder Shareholder Representative”) with respect to matters affecting the Stockholders Shareholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Shareholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such StockholderShareholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Shareholder Representative in connection with such Stockholder Shareholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the StockholdersShareholders, and (y) not to assert any claim or commence any suit against the Stockholder Shareholder Representative or any other Stockholder Shareholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Shareholder Representative in connection with its service as the Stockholder Shareholder Representative, absent fraud, bad faith, fraud or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 2 contracts
Samples: Voting Agreement (DAVIDsTEA Inc.), Voting Agreement (DAVIDsTEA Inc.)
Actions to be Taken. In the event that (i) the Board and the holders of a majority of the shares of Common Stock then issuable or issued upon conversion of the outstanding shares of Preferred Stock Stock, voting together as a single class and on an as-converted basis (the “Selling InvestorsRequisite Parties”), and (ii) the Board of Directors, approve a Sale of the Company in writingCompany, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agreesagrees with respect to all Shares which it own(s) or over which it otherwise exercises voting or dispositive authority:
(a) if in the event such transaction requires is to be brought to a vote at a stockholder approvalmeeting, with respect after receiving proper notice of any meeting of stockholders of the Company, to vote on the approval of a Sale of the Company, to be present, in person or by proxy, as a holder of shares of voting securities, at all Shares that such Stockholder owns or over which meetings and be counted for the purposes of determining the presence of a quorum at such Stockholder otherwise exercises voting power, meetings;
(b) to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, of such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(bc) if to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such transaction is a Stock Sale, to sell the same proportion of shares of capital stock Sale of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling InvestorsCompany;
(cd) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documentsRequisite Parties;
(de) if the Sale of the Company is structured as a Stock Sale, to sell the same proportion of his, her or its Shares as is being sold by the Requisite Parties, and, except as permitted in Section 4.3 below, on the same terms and conditions as the Requisite Parties;
(f) not to deposit, and to cause their Affiliates affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party Stockholder or Affiliate affiliate in a voting trust or subject any such Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;; and
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(fg) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 4 includes any securities and due receipt thereof by any Stockholder would require under applicable law (xi) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (yii) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedamended (the “Act”), the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 2 contracts
Samples: Voting Agreement (WayBetter, Inc.), Voting Agreement (WayBetter, Inc.)
Actions to be Taken. In the event that (i) the holders of (1) a majority of the shares of outstanding Common Stock then issuable or issued upon conversion Shares, (2) a majority of the shares of outstanding Preferred Stock voting together as a single class Shares (collectively, the “Selling Investors”), ) and (ii3) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 4(b) shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agrees:
(aA) if such transaction requires stockholder approval, with respect to any or all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate of Incorporation required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company to consummate such Sale of the Company;
(bB) if such transaction sale is to be effected by sale of the Company’s capital stock (each a “Stock Sale”), to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 4(b)(ii) below, on the same terms and conditions as the Selling Investors;
(cC) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 34(b), including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(dD) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (iE) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;and
(fF) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 4(b) includes any securities and due receipt thereof by any Stockholder would require under applicable law (xI) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities, or (yII) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as such term is defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 2 contracts
Samples: Stockholders Agreement (Syncardia Systems Inc), Stockholders Agreement (Syncardia Systems Inc)
Actions to be Taken. In the event that (i) the holders of at least a majority of the shares of Common Stock then issued or issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class Stock, including NCO (the “Selling Investors”), and ; (ii) the Board Board; and (iii) the holders of Directorsa majority of the then outstanding shares of Common Stock (other than any Common Stock issued or issuable upon conversion of the shares of Preferred Stock) held by Key Holders who are then providing services to the Company as officers, employees or consultants voting as a separate class (collectively, (i) and (iii) are the “Electing Holders”) approve a Sale of the Company (which approval of the Electing Holders must be in writing), specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection Section 3.3 below, each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling Investorsother stockholders of the Company;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, any associated indemnity agreement, or escrow agreement, any associated voting, support, or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents, provided, that no Stockholder other than a Key Holder shall be required to execute a non-compete agreement;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) to refrain from (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedamended (the “Securities Act”), the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 2 contracts
Samples: Series a Preferred Stock Purchase Agreement, Series a Preferred Stock Purchase Agreement
Actions to be Taken. (a) In the event that (i) the holders of Board (other than in connection with a majority of Stock Sale), by prior Super Board Approval, and (ii) the shares of Common Stock then issuable or issued upon conversion of the shares of Required Senior Preferred Stock voting together as a single class Holders (the “Selling Investors”), and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 4 shall apply to such transaction, then, then the Company shall provide written notice of such approval (the “Drag-Along Notice”) to each Drag-Along Stockholder and each Drag-Along Stockholder hereby agrees (subject to satisfaction of each of the conditions set forth in Subsection 3.3 Section 4.2(c) below, each Stockholder and the Company hereby agrees:):
(ai) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) ), with respect to all Shares Shares, in favor of, and adopt, of such Sale of the Company (together with and in favor of any related amendment or restatement to the Restated Certificate Charter required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that would result in a breach of any covenant, representation, warranty or any other obligation or agreement of the Company under the definitive agreement(s) related to such Sale of the Company or which could delay or impair the ability of the Company to consummate such Sale of the Company, if such transaction requires the approval of the Company’s stockholders;
(bii) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Drag-Along Stockholder as is being sold by the Selling Investors to the Person person or entity to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 4.2(c) below, on the same terms and conditions as the Selling Investors;
(ciii) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 34, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(div) not to deposit, and to cause their Affiliates its Affiliate Stockholders not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party Drag-Along Stockholder or Affiliate Stockholders in a voting trust or subject any such Shares to any arrangement or agreement with respect to the voting of such Sharessecurities, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) (iv) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;and
(fvi) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 4.2 includes any securities and due receipt thereof by any Drag-Along Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Drag-Along Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Drag-Along Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Drag-Along Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Drag-Along Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 2 contracts
Samples: Stockholders Agreement, Stockholders Agreement (Neuronetics, Inc.)
Actions to be Taken. In the event that (i) the holders of a majority of the outstanding shares of Common Stock then issued or issuable or issued upon conversion of the shares of Series A Preferred Stock voting together as a single class and Series B Preferred Stock (the “Selling Investors”), ) and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, thenand the Selling Investors reasonably expect that the aggregate value of such transaction or series of related transactions, subject or entity following such transaction (in terms of cash and/or public securities to satisfaction the Stockholders) will be in excess of each of the conditions set forth in Subsection 3.3 below$50,000,000, then each Stockholder and the Company hereby agrees:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Second Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 3,3 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documentsdocuments upon terms and conditions reasonably acceptable to the Stockholder;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;and
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 2 contracts
Samples: Voting Agreement (Anterios Inc), Voting Agreement (Anterios Inc)
Actions to be Taken. In the event that (i) the Board, the holders of a majority of the then outstanding shares of Common Stock then (excluding Common Stock issued or issuable or issued upon conversion of Preferred Stock) and the holders of a majority of the then outstanding shares of Preferred Stock (collectively, the “Requisite Parties”) approve a transaction or series of related transactions (a) in which a Person, or a group of related Persons, acquires from stockholders of the Company shares representing more than fifty percent (50%) of the outstanding voting together power of the Company (a “Stock Sale”) or (b) that qualifies as a single class Deemed Liquidation Event (any such transaction or series of related transactions are referred to herein as a “Sale of the “Selling InvestorsCompany”), and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agreesagrees with respect to all Shares which it own(s) or over which it otherwise exercises voting or dispositive authority:
(a) if in the event such transaction requires is to be brought to a vote at a stockholder approvalmeeting, with respect after receiving proper notice of any meeting of stockholders of the Company, to vote on the approval of a Sale of the Company, to be present, in person or by proxy, as a holder of shares of voting securities, at all Shares that such Stockholder owns or over which meetings and be counted for the purposes of determining the presence of a quorum at such Stockholder otherwise exercises voting power, meetings;
(b) to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company to consummate such Sale of the Company;
(bc) if to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such transaction is a Stock Sale, to sell the same proportion of shares of capital stock Sale of the Company beneficially held Company;
(d) not to deposit, and to cause its Affiliates not to deposit, except as provided in this Agreement, any Shares owned by such Stockholder as is being sold or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the Selling Investors to acquiror in connection with the Person to whom Sale of the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling InvestorsCompany;
(ce) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3Company, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;and
(f) if the consideration to be paid in exchange for Sale of the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person Company is structured as a broker Stock Sale, each Stockholder shall agree to sell his, her or dealer or agent with respect to such securities or (y) its Shares on the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith terms and conditions approved by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the SharesRequisite Parties; and
(g) in the event that the Selling Investorsstockholders representing Requisite Parties, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.the
Appears in 2 contracts
Samples: Investors' Rights Agreement (ThredUp Inc.), Investors' Rights Agreement (ThredUp Inc.)
Actions to be Taken. In the event that (i) the holders of a majority both of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”)Major Stockholders, and (ii) the Board of Directorsacting together, approve a Sale of the Company (which approval must be in writing), specifying that this Section 3 6 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 belowSection 6.2, each Stockholder hereby agrees with the Major Stockholders and the Company hereby agreesCompany:
(a) if such transaction requires stockholder approval, with respect to all General Voting Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all General Voting Shares in favor of, and adoptapprove, such Sale of the Company (together with any and the related amendment or restatement definitive agreement(s) pursuant to which the Restated Certificate required in order to implement such Sale of the Company) Company is to be consummated and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company Shares beneficially held by such Stockholder (which in the case of OTPP, shall include the Shares held by the 30% Rule Designee) as is being sold by the Selling Investors each Major Stockholder to the Person to whom the Selling Investors Major Stockholders propose to sell their Shares, and, except as permitted in Section 3.3 6.2 below, on the same terms and conditions as the Selling Investorsother stockholders of the Company;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Major Stockholders in order to carry out the terms and provision of this Section 36, including including, without limitation limitation, (i) executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity business combination agreement, any associated indemnity or escrow agreement, any reasonably customary release agreement in the capacity of a securityholder, termination of investment-related documents, accredited investor forms, documents evidencing the removal of Board designees, powers of attorney, any associated voting, support, or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer Transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents, and (ii) providing any information reasonably necessary for any public filings with the SEC in connection with the Sale of the Company;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party Stockholder or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) to refrain from (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, Company or (ii); ) asserting any claim or commencing commencing, joining or participating in any way (including, without limitation, as a member of a class in any action, suit (xor proceeding) challenging the Sale of the Company, this Agreement, or consummation of the transactions contemplated in connection with the Sale of the Company or this Agreement, including (x) challenging the validity of, or (y) alleging a breach of any fiduciary duty of seeking to enjoin the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Companyoperation of, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”definitive agreement(s) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Companyto, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.or
Appears in 2 contracts
Samples: Stockholders Agreement (KLDiscovery Inc.), Stockholders Agreement (KLDiscovery Inc.)
Actions to be Taken. In the event that (i) the holders of a majority in voting power of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class held by the Investors (collectively, the “Selling Investors”), and ; (ii) the Board of Directors, ; and (iii) the Founder approve a Sale of the Company in writing, specifying that this Section 3 7 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 Subsection 7.2 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 37, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 7 includes any securities and due receipt thereof by any Stockholder would require under applicable law law: (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Representative in connection with its service as the Stockholder Representative, absent fraud, bad faith, fraud or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 2 contracts
Samples: Stockholders Agreement (Alzheon, Inc.), Stockholders Agreement (Alzheon, Inc.)
Actions to be Taken. In the event that (i) the holders of at least a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”), ; and (ii) the Board holders of Directorsa majority of the then outstanding shares of Common Stock (other than those issued or issuable upon conversion of the shares of Preferred Stock) held by Key Holders (collectively, (i) and (ii) are the “Electing Holders”) approve a Sale of the Company (which approval of the Electing Holders must be in writing), specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection Section 3.3 below, each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling Investorsother stockholders of the Company;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, any associated indemnity agreement, or escrow agreement, any associated voting, support, or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) to refrain from (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedamended (the “Securities Act”), the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 2 contracts
Samples: Voting Agreement (Facible BioDiagnostics, Inc.), Voting Agreement (Facible BioDiagnostics, Inc.)
Actions to be Taken. In the event that (ix) the Board and (y) the holders of a majority more than fifty percent (50%) of the then outstanding shares of Common Stock then issuable or issued upon conversion of the shares of and Preferred Stock Stock, voting together as a single class on an as-converted basis (the “Selling InvestorsHolders”), and (ii) the Board of Directors, approve a Sale of the Company or a bona fide equity financing of the Company for capital raising purposes (a “bona fide equity financing”) in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, each Stockholder the Company and the Company Stockholders holding at least one percent (1%) of the Company’s then outstanding shares of Common Stock, on an as-converted basis (as adjusted for any stock combination, stock split, stock dividend, recapitalization or other similar transaction), hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, person or by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale or bona fide equity financing of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale or bona fide equity financing of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale or bona fide equity financing of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors Holders to the Person to whom the Selling Investors Holders propose to sell their Shares, and, except as permitted in Section Subsection 3.3 below, on the same terms and conditions as the Selling Investorsother stockholders of the Company;
(c) to execute and deliver all related documentation and take such other action in support of the Sale or bona fide equity financing of the Company as shall reasonably be requested by the Company or the Selling Investors Holders in order to carry out the terms and provision of this Section 3, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, any associated indemnity agreement, or escrow agreement, any associated voting, support, or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) to refrain from (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); ) asserting any claim or commencing any suit (xA) challenging the Sale of the Company or this Agreement, or (yB) alleging a breach of any fiduciary duty of the Selling Investors Holders or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in a Sale of the Company in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (xi) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (yii) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedamended (the “Securities Act”), the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling InvestorsHolders, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (xi) to consent to (iA) the appointment of such Stockholder Representative, (iiB) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iiiC) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (yii) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, gross negligence or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 2 contracts
Samples: Voting Agreement (Gi Dynamics, Inc.), Series a Preferred Stock Purchase Agreement (Gi Dynamics, Inc.)
Actions to be Taken. In the event that (i) the holders of Selling Investors and a majority of the shares of Common Stock then issuable or issued upon conversion Board including a majority of the shares of Preferred Stock voting together as a single class (the “Selling Investors”), and (ii) the Board of Directors, approve in writing a Sale of the Company in writingor a Financing Event, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agrees:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company or Financing Event (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the CompanyCompany or Financing Event) and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company to consummate such Sale of the CompanyCompany or Financing Event;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 3.2 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company or Financing Event as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents, as applicable;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company;
(f) that, or upon the election of the Company in its sole discretion and without any further action required on the part of such Stockholder, unless otherwise agreed by the holders of at least a majority of the then outstanding shares of Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock, voting together as a single class on an as-converted basis, each stock option, warrant, and other security then exercisable for shares of capital stock of the Company (iicollectively, “Exercisable Securities” and individually, an “Exercisable Security”); asserting any claim or commencing any suit (x) challenging , shall, if such Stockholder has not otherwise exercised the vested portion of such Exercisable Security prior to the closing of a Sale of the Company (or this Agreement, or (y) alleging any such Exercisable Security contains a breach vesting acceleration provision that becomes effective immediately prior to the closing of any fiduciary duty a Sale of the Selling Investors or any affiliate or associate thereof or the Board (includingCompany), without limitation, aiding and abetting breach of fiduciary duty) be cancelled in connection with a Sale of the evaluation, negotiation Company in exchange for an amount of cash or entry into such other consideration payable in connection with such Sale of the Company with an aggregate value equal to (A) the consideration payable in respect of each share of the class or series of capital stock underlying such Exercisable Security in connection with such Sale of the Company multiplied by the number of shares of such class or series of capital stock underlying such Exercisable Security that remain unexercised as of the closing of such Sale of the Company minus (B) the exercise price per share for such Exercisable Security multiplied by the number of shares of such class or series of capital stock underlying such Exercisable Security that remain unexercised as of the closing of such Sale of the Company, or provided that the consummation result of such calculation is a positive number, which payment shall be subject to the terms and conditions generally applicable to the payment of the transactions contemplated thereby;consideration in connection with such Sale of the Company, including indemnification obligations, escrows, earnouts, contingency payments and purchase price adjustments; and
(fg) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 in connection with such Sale of the Company includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, (the “Securities Act”) the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 2 contracts
Samples: Stockholders Agreement (Blueprint Medicines Corp), Stockholders Agreement
Actions to be Taken. (a) In the event that (i) a proposed Liquidation Transaction has been approved by the holders of a the majority of the outstanding shares of Common Stock then issuable Stock, acting or issued upon conversion voting as a separate class, approved by the holders of the majority of the outstanding shares of Series A Preferred Stock Stock, acting or voting together as if a single class (the “Selling Investors”)separate class, and (ii) approved by majority vote of the Corporation’s Board of Directors, approve a Sale the Corporation shall, if requested by VB, provide written notice signed by an officer of the Company Corporation to each Large Holder, which notice shall include the following (a “Drag-Along Notice”):
(i) A summary (in writingreasonable detail) of the material terms of such proposed Liquidation Transaction, specifying including, but not limited to, the following: (A) the proposed time and place of the closing of the Liquidation Transaction; (B) the substantive terms and conditions of the Liquidation Transaction including (1) the purchase price and terms of payment and (2) the identity, beneficial ownership (if known by the Corporation or VB), address and telephone number of the proposed acquirer; (C) the number and class of capital stock of the Corporation held by the proposed acquirer and its affiliates (if any) and the substantive terms and conditions of any previous transactions under which the proposed acquirer or any of its affiliates purchased capital stock of the Corporation from VB, including the price per share at which such capital stock was purchased; and (D) any written consent of stockholders, stockholder resolutions (if the Liquidation Transaction is being approved at a stockholders meeting), agreement, instrument or other document the Parties are required to execute together with all exhibits, attachments and schedules thereto; and
(ii) A certification that this Section 3 shall apply such proposed Liquidation Transaction has received all of such approvals.
(b) Each Large Holder hereby agrees that, if it receives a Drag-Along Notice with respect to such transactiona proposed transaction that complies with the provisions of Section 2.1(a) above, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 belowSection 2.2 hereof, each Stockholder and the Company hereby agreesit shall:
(ai) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) ), with respect to all Shares or any other Corporation securities that such Large Holder owns or over which such Large Holder otherwise exercises voting power, in favor of, of such proposed Liquidation Transaction and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company Corporation or its stockholders to consummate such Sale of the CompanyLiquidation Transaction;
(bii) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company such proposed Liquidation Transaction as shall reasonably be requested by the Company Corporation or the Selling Investors VB in order to carry out the terms and provision of this Section 32.1(b), including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(diii) not to deposit, and to cause their Affiliates its affiliates not to deposit, except as provided in this Agreement, any Shares securities of the Company Corporation owned by such party Large Holder or Affiliate affiliate in a voting trust or subject any Shares such securities to any arrangement or agreement with respect to the voting or transfer of such Sharessecurities (or to not vote or not transfer such securities), unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;such proposed Liquidation Transaction; and
(eiv) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder RepresentativeLiquidation Transaction.
Appears in 2 contracts
Samples: Stockholders Agreement (KonaRed Corp), Stockholders Agreement (Willsey Gregory Thomas)
Actions to be Taken. In the event that (i) the holders of at least a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class Shares (the “Selling InvestorsShareholders”), and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 2 shall apply to such transaction, then, subject to satisfaction of then each of the conditions set forth in Subsection 3.3 below, each Stockholder and the Company Shareholder hereby agrees:
(a) if such transaction requires stockholder shareholder approval, with respect to all Shares that such Stockholder Shareholder owns or over which such Stockholder Shareholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder Shareholder as is being sold by sold, in the Selling Investors to the Person to whom the Selling Investors propose to sell their Sharesaggregate, and, except as expressly permitted in this Section 3.3 below2, on the same terms and conditions as the Selling Investorsall other sales of capital stock;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Shareholders in order to carry out the terms and provision of this Section 32, including without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;; and
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 2 contracts
Samples: Voting Agreement (Paylocity Holding Corp), Voting Agreement (Paylocity Holding Corp)
Actions to be Taken. In the event that (i) the holders of a majority at least sixty percent (60%) of the shares of Common Stock then issued or issuable or issued upon conversion of the outstanding shares of Preferred Stock voting together as a single class (the “Selling Investors”), ) and (ii) the Board of Directors, Directors approve a Sale of the Company in writing, specifying that this Section 3 7 shall apply to such transaction, then, subject to satisfaction of then each of the conditions set forth in Subsection 3.3 below, each Stockholder and the Company Voting Party hereby agrees:
(ai) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder Voting Party owns or over which such Stockholder Voting Party otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company to consummate such Sale of the Company;
(bii) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder Voting Party as is being sold by the Selling Investors to the Person person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 7(c) below, on the same terms and conditions as the Selling Investors;
(ciii) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 37, including without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(div) not to deposit, and to cause their Affiliates affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party Voting Party or Affiliate affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (iv) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;and
(fvi) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 7 includes any securities and due receipt thereof by any Stockholder Voting Party would require under applicable law (xA) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (yB) the provision to any Stockholder Voting Party of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder Voting Party in lieu thereof, against surrender of the Shares which would have otherwise been sold by such StockholderVoting Party, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder Voting Party would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 2 contracts
Samples: Voting Agreement (Prosper Marketplace Inc), Voting Agreement (Prosper Marketplace Inc)
Actions to be Taken. In the event that (i) the Board and the holders of a majority at least 85% of the outstanding shares of Common Stock then issuable or issued upon conversion of the shares of and Preferred Stock Stock, voting together as a single class on an as-converted basis (the “Selling 85% Investors”), and (ii) the Board of Directors, approve a Sale of the Company or an IPO in writing, writing specifying that this Section 3 4 shall apply to such transactionQualifying Transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, each Stockholder and then the Company shall provide written notice of such approval (the “Drag-Along Notice”) to each Holder and each Holder hereby agrees:
(a) if such transaction the Qualifying Transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting powerthe approval of the stockholders, to vote (in person, by proxy or by action by written consent, as applicable) ), with respect to all Shares Company Stock that such Holder owns or over which such Holder otherwise exercises voting power, in favor of, and adopt, of such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) Qualifying Transaction and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the CompanyQualifying Transaction;
(b) if such transaction the Qualifying Transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder Holder as is being sold by the Selling 85% Investors to the Person person or entity to whom the Selling 85% Investors propose to sell their SharesCompany Stock, and, except as permitted in Section 3.3 4.4 below, on the same terms and conditions as the Selling 85% Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company Qualifying Transaction as shall reasonably be requested by the Company or the Selling 85% Investors in order to carry out the terms and provision of this Section 34, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates its affiliates not to deposit, except as provided in this Agreement, any Shares voting securities of the Company owned by such party Holder or Affiliate affiliate in a voting trust or subject any Shares such voting securities to any arrangement or agreement with respect to the voting of such Sharessecurities, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the CompanyCompany or by an underwriter in connection with an IPO;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;and
(f) if to grant any other necessary consents or approvals reasonably determined by the consideration Board to be paid necessary in exchange for the Shares pursuant order to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as effect a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder RepresentativeQualifying Transaction.
Appears in 2 contracts
Samples: Voting Agreement, Voting Agreement (Enphase Energy, Inc.)
Actions to be Taken. In Notwithstanding anything herein or in the Memorandum and Articles of Association to the contrary, in the event that (i) the holders of a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class Majority Investors (the “Selling Investors”), ) and (ii) the Board of Directors, Ordinary Majority approve a Sale of the Company in writing, specifying writing that this Section 3 shall apply to such transaction, then, subject to satisfaction of each involves a valuation of the conditions set forth in Subsection 3.3 belowCompany of more than one hundred and fifty percent (150%) of the Series B+ Post-Money Valuation (the “Drag-Along Sale”), then each Stockholder and the Company hereby agreesMember shall:
(a) if such transaction Drag-Along Sale requires stockholder approvalapproval of the Members of the Company or the Directors, with respect to all Shares that such Stockholder Member owns or over which such Stockholder Member otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all such Shares or to procure the Directors designated by such Member to vote in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate Memorandum and Articles of Association required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction Drag-Along Sale is a Stock Share Sale, to sell the same proportion of shares of capital stock of the Company all Shares beneficially held by such Stockholder as is being sold by the Selling Investors Member to the Person to whom which the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 below, and on the same terms and conditions applicable to the Selling Investors; however if the person to whom the Selling Investors propose to sell the Shares (the “Proposed Purchaser”) in such Share Sale does not purchase the Warrant(s) from any Warrant Holder, such Warrant Holder shall exercise or designate an Affiliate, and the Company shall cooperate with such Warrant Holder, to exercise its Warrant(s) in accordance with the Warrant(s) as soon as practicable and such Warrant Holder and/or its Affiliate shall sell all its Warrant Shares to the Proposed Purchaser on the same terms and conditions applicable to the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Drag-Along Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 38.1, including without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;; and
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights, rights of appraisal or right of first refusal under applicable law Law, this Agreement or any other Transaction Agreements at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any powerDrag-of-attorney or other documentation reasonably requested by the Stockholder RepresentativeAlong Sale.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (XCHG LTD), Investors’ Rights Agreement (XCHG LTD)
Actions to be Taken. In the event that both (ia) the Board and (b) the holders of a majority at least two-thirds in interest of the shares of Common Stock then issuable or issued upon conversion of the shares of Series A Preferred Stock voting together and Series B Preferred Stock, acting collectively and as a single class on an as-converted to Common Stock basis (the “Selling Investors”), and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transactionCompany, then, subject to satisfaction of each of the conditions set forth in Subsection Section 3.3 below, each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling Investorsother stockholders of the Company;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, any associated indemnity agreement, or escrow agreement, any associated voting, support, or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) to refrain from (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person Person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedamended (the “Securities Act”), the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, gross negligence or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 2 contracts
Samples: Series B Preferred Stock Purchase Agreement (Energy Exploration Technologies, Inc.), Voting Agreement (Energy Exploration Technologies, Inc.)
Actions to be Taken. In the event that (i) the Board and the holders of at least a majority of the shares of Common Stock then issuable or issued upon conversion of the outstanding shares of Preferred Stock voting together as a single class (the “Selling InvestorsStockholders”), voting as a separate class and (ii) the Board of Directorson an as-converted to Common Stock basis, approve a Sale of the Company in writing, specifying writing and specify that this Section 3 4 shall apply to such transactiontransaction (each an “Approved Transaction”), then, then subject to satisfaction of each of the conditions set forth in Subsection 3.3 belowSection 6 and Section 7, each Stockholder Key Holder and the Company each Series A Holder hereby agrees:
(a) if such transaction Approved Transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) Approved Transaction and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the CompanyApproved Transaction;
(b) if such transaction Approved Transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company Capital Stock beneficially held by such Stockholder as is being sold by the Selling Investors Stockholders to the Person to whom the Selling Investors Stockholders propose to sell their Shares, and, except as permitted in Section 3.3 4.3 below, on the same terms and conditions as the Selling InvestorsStockholders;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company Approved Transaction as shall reasonably be requested by the Company or the Selling Investors Stockholders in order to carry out the terms and provision of this Section 34, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents; provided, however, no Stockholder shall be required to execute or deliver any agreements, instruments and documents that are substantially different from the agreements, instruments and documents executed and delivered by the Selling Stockholders or the other Stockholders;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;; and
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder RepresentativeApproved Transaction.
Appears in 2 contracts
Samples: Stockholders’ Agreement, Stockholders’ Agreement (Histogenics Corp)
Actions to be Taken. In the event that (i) the holders of a majority of the outstanding shares of Common Stock then issued or issuable or issued upon conversion of the shares of Series A Preferred Stock voting together as a single class (the “Selling Investors”), and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 4 shall apply to such transaction or (ii) the Company has not completed a Qualified Public Offering (as defined in the Restated Certificate) by [ ], 2012 and the holders of not less than a majority of the outstanding shares of Common Stock issued or issuable upon conversion of the shares of Series A Preferred Stock (the “Selling Investors”) approve a Sale of the Company in writing, specifying that this Section 4 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agrees:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 4.3 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 34, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;and
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 4 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 1 contract
Actions to be Taken. In the event that (i) Generex and the holders of a majority at least fifty percent (50%) of the shares of Common Stock then issuable or issued upon conversion of the shares of outstanding Series A Preferred Stock voting together as a single class Shares (collectively, the “Selling Investors”), ) and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 10 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares shares of the Company’s capital stock that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Sharesshares, and, except as permitted in Section 3.3 Subsection 10.3 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 310, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares shares to any arrangement or agreement with respect to the voting of such Sharesshares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares shares pursuant to this Section 3 10 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Sharesshares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, holdback, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s Stockholder ‘s pro rata portion (from the applicable escrow escrow, holdback or expense fund or otherwiseotherwise from the proceeds of the Sale of the Company) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the StockholdersMembers, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Representative in connection with its service as the Stockholder Representative, absent fraud, bad faith, fraud or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 1 contract
Samples: Investor Rights Agreement (Generex Biotechnology Corp)
Actions to be Taken. In the event that (i) the holders of a majority at least seventy-five percent (75%) of the shares of Common Stock then issued or issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”), and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 2 shall apply to such transaction, then, subject to satisfaction of then each of the conditions set forth in Subsection 3.3 below, each Stockholder Shareholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder shareholder approval, with respect to all Shares that such Stockholder Shareholder owns or over which such Stockholder Shareholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate Articles required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder Shareholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 2.3 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 2 includes any securities and due receipt thereof by any Stockholder Shareholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder Shareholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder Shareholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such StockholderShareholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder Shareholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder shareholder representative (the “Stockholder Shareholder Representative”) with respect to matters affecting the Stockholders Shareholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Shareholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such StockholderShareholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Shareholder Representative in connection with such Stockholder Shareholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the StockholdersShareholders, and (y) not to assert any claim or commence any suit against the Stockholder Shareholder Representative or any other Stockholder Shareholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Shareholder Representative in connection with its service as the Stockholder Shareholder Representative, absent fraud, bad faith, fraud or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 1 contract
Samples: Voting Agreement (Hylete)
Actions to be Taken. In the event that the Board and the holders of more than (i) the holders of a majority fifty percent (50%) of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”)Series A Preferred, and (ii) fifty percent (50%) of the Board of DirectorsSeries B Preferred, each voting separately as a separate class on an as-converted to Common Stock basis (the “Selling Stockholders”), approve a Sale of the Company in writing, specifying that this Section 3 2 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agrees:
(a) if such transaction requires stockholder approval, with respect to all Shares shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors Stockholders to the Person to whom the Selling Investors Stockholders propose to sell their Sharesshares, and, except as permitted in Section 3.3 2.3 below, on the same terms and conditions as the Selling InvestorsStockholders;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Stockholders in order to carry out the terms and provision of this Section 32, including without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Sharesshares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;; and
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 1 contract
Samples: Voting Agreement (Helix TCS, Inc.)
Actions to be Taken. In the event that (i) the holders of a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”)an Approved Sale, and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, each Stockholder and the Company Stockholders hereby agrees:
(a) if such transaction requires stockholder approval, with respect to all Shares shares of capital stock of the Company that such Stockholder owns or over which such Stockholder otherwise exercises voting powercontrol, to vote (in person, by proxy or by action by written consent, as applicable) all Shares shares of capital stock of the Company in favor of, and adopt, such Approved Sale of the Company (together with any related transaction agreement for such Approved Sale and any amendment or restatement to the Restated Company’s Certificate required of Incorporation, as may be amended or restated from time to time, to be made in order to implement connection with such Sale of the CompanyApproved Sale) and to vote in opposition to to, and withhold consent from, any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the CompanyApproved Sale;
(b) if such transaction is an acquisition of at least a Stock Salemajority of the total outstanding shares of capital stock of the Company (other than for bona fide equity financing purposes) by an unrelated Person, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors Heat to the Person to whom the Selling Investors Heat propose to sell their Shares, and, except as permitted in Section 3.3 below, its shares of capital stock of the Company on the same terms and conditions as the Selling InvestorsHeat;
(c) to execute and deliver all related documentation and take such other action in support of the Approved Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision provisions of this Section 3, including including, without limitation limitation, (i) executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share stock certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documentsdocuments related to the Approved Sale, (ii) making the same representations, warranties, covenants, indemnities and agreements as made by Heat in connection with the Approved Sale, and (iii) agreeing to the same terms and conditions to the Approved Sale as those to which Heat agrees;
(d) not to deposit, and to cause their its Affiliates not to deposit, except as provided in this Agreement, any Shares shares of capital stock of the Company owned by such party or Affiliate in a voting trust or subject any Shares such shares of capital stock of the Company to any arrangement or agreement with respect to the voting of such Sharesshares of capital stock of the Company, unless specifically requested to do so by the acquiror Heat in connection with the Sale of the Companyan Approved Sale;
(e) (i) to affirmatively waive, and otherwise refrain from exercising exercising, any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii)Approved Sale; asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;and
(f) if the consideration to be paid in exchange for the Shares shares of capital stock of the Company in an Approved Sale pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (xi) the registration or qualification of such securities or of any person Person as a broker or dealer or agent with respect to such securities securities, or (yii) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares shares of capital stock of the Company which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale shares of capital stock of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 1 contract
Actions to be Taken. In the event that either (i) the holders of at least a majority of the then issued and outstanding shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (on an as-converted to common stock basis) (the “Selling Investors”), and or (ii) the Board of DirectorsBoard, approve entering into a Sale of the Company Change in Control in writing, specifying and such approval specifies that this Section 3 8 shall apply to such transactionChange in Control, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, each Stockholder and the Company hereby agrees:
(ai) if such transaction requires stockholder shareholder approval, then with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting powershares of Stock owned by the Grantee, the Grantee hereby agrees to vote (in person, by proxy or by action by written consent, as applicable) all Shares such shares of Stock in favor of, and adopt, such Sale of the Company Change in Control (together with any related amendment or restatement to the Restated Certificate certificate of incorporation or bylaws required in order to implement such Sale of the CompanyChange in Control) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the CompanyChange in Control;
(bii) if such transaction is a Stock Salestock sale, the Grantee hereby agrees to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder Stock as is being sold by the Selling Investors to the Person same acquirer to whom the Selling Investors propose to sell their Sharesshares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling Investors;
(ciii) the Grantee hereby agrees to execute and deliver all related documentation and take such other action in support of the Sale of the Company Change in Control as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision provisions of this Section 38, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(div) the Grantee hereby agrees not to deposit, and to cause their Affiliates the Grantee’s affiliates not to deposit, except as provided in this Award Agreement, any Shares shares of Stock of the Company owned by such party or Affiliate affiliate in a voting trust or subject any Shares shares of Stock of the Company to any arrangement or agreement with respect to the voting of such Sharesshares of Stock, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the CompanyChange in Control;
(ev) (i) the Grantee hereby agrees to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii)Change in Control; asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;and
(fvi) if the consideration to be paid in exchange for the Shares shares of Stock pursuant to this Section 3 8 includes any securities and due receipt thereof by any Stockholder would require under applicable law securities, then the Grantee hereby agrees to (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities, or (y) the provision to any Stockholder the Grantee of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933Act, as amended, and the Company may cause to be paid to any such Stockholder the Grantee in lieu thereof, against surrender of the Shares shares which would have otherwise been sold by such Stockholderthe Grantee, an amount in cash equal to the fair market value (as determined in good faith by the Board) of the securities which such Stockholder the Grantee would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativeshares.
Appears in 1 contract
Samples: Restricted Stock Unit Award Agreement (Spectral AI, Inc.)
Actions to be Taken. In the event that (i) the holders of at least a majority of the shares outstanding capital stock of the Company (voting together on an as-converted to Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class basis) (the “Selling InvestorsElecting Holders”) approve a “Change in Control” (as defined in the Plan), and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, each then Stockholder and the Company hereby agrees:
(ai) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company Change in Control (together with any related amendment or restatement to the Restated Certificate Company’s certificate of incorporation then in effect required in order to implement such Sale of the CompanyChange in Control) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the CompanyChange in Control;
(bii) if such transaction is a Stock Salesale of stock, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors Electing Holders to the Person to whom the Selling Investors Electing Holders propose to sell their Sharesshares, and, except as permitted in Section 3.3 below, and on the same terms and conditions as the Selling Investorsother stockholders of the Company;
(ciii) to execute and deliver all related documentation and take such other action in support of the Sale of the Company Change in Control as shall reasonably be requested by the Company or the Selling Investors Electing Holders in order to carry out the terms and provision of this Section 3, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, any associated indemnity agreement, or escrow agreement, any associated voting, support, or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(div) not to deposit, and to cause their Stockholder’s Affiliates (as defined below) not to deposit, except as provided in this AgreementSection 3, any Shares of the Company owned by such party Stockholder or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the CompanyChange in Control;
(e) (iv) to refrain from (i) exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the CompanyChange in Control, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company Change in Control or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors Electing Holders or any affiliate Affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the CompanyChange in Control, or the consummation of the transactions contemplated thereby;
(fvi) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 4 includes any securities and due receipt thereof by any Stockholder or other consideration that would require under applicable law require (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the “Securities Act of 1933, Act” (as amendeddefined in the Plan), the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(gvii) in the event that the Selling InvestorsElecting Holders, in connection with such Sale of the CompanyChange in Control, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders Stockholder under the applicable definitive transaction agreements following consummation of such Sale of the CompanyChange in Control, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company Change in Control and its related service as the representative of the StockholdersStockholder, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder Person with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 1 contract
Actions to be Taken. In the event that (i) the holders of majority of the outstanding shares of Preferred Stock (the “Selling Investors”); and (ii) the holders of a majority of the then outstanding shares of Common Stock then (other than those issued or issuable or issued upon conversion of the shares of Preferred Stock Stock) held by Key Holders who are then providing services to the Company as officers, employees or consultants voting together as a single separate class (collectively, (i)-(ii) are the “Selling InvestorsElecting Holders”), and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section Subsection 3.3 below, on the same terms and conditions as the Selling Investorsother stockholders of the Company;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, any associated indemnity agreement, or escrow agreement, any associated voting, support, or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) to refrain from (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, gross negligence or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 1 contract
Samples: Voting Agreement (6d Bytes Inc.)
Actions to be Taken. In the event that (i) the holders of a majority of the shares of Common Stock any Qualified Sale, then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”), and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, each Stockholder and the Company Member hereby agrees:
(a) if such If the transaction requires stockholder Member approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares Units that the Member owns or over which the Member otherwise exercises voting power (i) in favor of, and adopt, such Sale of the Company (Qualified Sale, together with any related amendment or restatement to the Restated Certificate or this Agreement required in order to implement such Sale of the CompanyQualified Sale, and (ii) and to vote in opposition to any and all other proposals proposal that reasonably could be expected to delay or impair the ability of the Company to consummate such Sale of the Company;Qualified Sale; Radiopharm Ventures, LLC 20
(b) if such If the transaction is a Stock SaleTransfer of Units, to sell Transfer the same proportion of shares of capital stock of the Company Units beneficially held by such Stockholder the Member as is are being sold by the Selling Investors Members to the Acquiring Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 below12.02 of this Agreement, on the same terms and conditions as the Selling InvestorsMembers;
(c) to To execute and deliver all related documentation and take such other action in support of the Qualified Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Members in order to carry out the terms and provision provisions of this Section 312, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share Unit certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents; provided, however, that the MDA Member shall not be required to execute or deliver any instrument contrary to the terms set forth in (or, in the alternative, all parties thereto shall execute a copy of,), and all such instruments shall be subject in all respects to the terms of the SLA;
(d) not Not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, deposit any Shares of the Company Units owned by such party or Affiliate the Member in a voting trust or subject any Shares Units to any arrangement or agreement with respect to the voting of such SharesUnits, unless except (i) as otherwise required by this Agreement, or (ii) if approved as a Transfer under Section 11 of this Agreement, or (iii) if specifically requested to do so by the acquiror Acquirer in connection with the Sale of the Company;Qualified Sale; and
(e) (i) to To refrain from exercising any dissenters’ rights or rights of appraisal under the Delaware Act or other applicable law Law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder RepresentativeQualified Sale.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Radiopharm Theranostics LTD)
Actions to be Taken. In the event that (i) the holders of a majority of the shares of Common Stock then issuable or issued upon conversion exercise of the shares of Preferred Stock voting together as a single class (the “Selling Investors”)Option, and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of then each of the conditions set forth in Subsection 3.3 below, each Stockholder and the Company Holder hereby agrees:
(a) if such transaction the Transaction requires stockholder approvalapproval of the stockholders of the Company or any of them, with respect to all Shares capital stock that such Stockholder Holder owns or over which such Stockholder Holder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares such capital stock in favor of, and adopt, such Sale of the Company Transaction (together with any related amendment or restatement waiver to the Restated Company’s Certificate required in order of Incorporation, as amended to implement such Sale of date and as the Companysame may be further amended and/or restated from time to time (as the same may be so amended and/or restated, the “Charter”)) and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company to consummate such Sale of the CompanyTransaction;
(b) if such transaction the Transaction is a Stock Salesale of the outstanding capital stock, to sell the same proportion all of shares of its capital stock to the Option Holder in connection with and at the Closing of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling InvestorsTransaction;
(c) to execute and deliver all related documentation and take such other action in support of the Sale exercise of the Company Option and the closing of the Transaction contemplated thereunder as shall reasonably be requested by the Company or the Selling Investors Option Holder in order to carry out the terms and provision of this Section 32, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their its Affiliates not to deposit, except as provided in this AgreementAgreement or the Charter, any Shares capital stock of the Company owned by such party or Affiliate in a voting trust or subject any Shares capital stock to any arrangement or agreement with respect to the voting of such Sharescapital stock, unless specifically requested to do so by the acquiror in connection with the Sale of the CompanyOption Holder;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale the exercise of the Company, or (ii); asserting any claim or commencing any suit (x) challenging Option and the Sale closing of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;Transaction; and
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 capital stock includes any securities and due receipt thereof by any Stockholder Holder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder Holder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company Option Holder may cause to be paid to any such Stockholder Holder in lieu thereof, against surrender of the Shares capital stock which would have otherwise been sold by such StockholderHolder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder Holder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder RepresentativeCapital stock.
Appears in 1 contract
Actions to be Taken. In the event that (i) the holders of a majority of the shares of Common Stock then issuable or issued upon conversion exercise of the shares of Preferred Stock voting together as a single class (the “Selling Investors”)Option, and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of then each of the conditions set forth in Subsection 3.3 below, each Stockholder and the Company Holder hereby agrees:
(a) if such transaction the Transaction requires stockholder approvalapproval of the members of the Company or any of them, with respect to all Shares Membership Interests that such Stockholder Holder owns or over which such Stockholder Holder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares such Membership Interests in favor of, and adopt, such Sale of the Company Transaction (together with any related amendment or restatement waiver to the Company’s Second Amended and Restated Certificate required in order to implement such Sale Operating Agreement, dated as of the Companydate hereof, as the same may be further amended and/or restated from time to time (as the same may be so amended and/or restated, the “Operating Agreement”)) and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company to consummate such Sale of the CompanyTransaction;
(b) if such transaction the Transaction is a Stock Salesale of the outstanding Membership Interests, to sell all of its Membership Interests to the same proportion of shares of capital stock Option Holder in connection with and at the Closing of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling InvestorsTransaction;
(c) to execute and deliver all related documentation and take such other action in support of the Sale exercise of the Company Option and the closing of the Transaction contemplated thereunder as shall reasonably be requested by the Company or the Selling Investors Option Holder in order to carry out the terms and provision of this Section 32, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their its Affiliates not to deposit, except as provided in this Agreement or the Operating Agreement, any Shares Membership Interests of the Company owned by such party or Affiliate in a voting trust or subject any Shares Membership Interests to any arrangement or agreement with respect to the voting of such SharesMembership Interests, unless specifically requested to do so by the acquiror in connection with the Sale of the CompanyOption Holder;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale the exercise of the Company, or (ii); asserting any claim or commencing any suit (x) challenging Option and the Sale closing of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;Transaction; and
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 Membership Interests includes any securities and due receipt thereof by any Stockholder Holder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder Holder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company Option Holder may cause to be paid to any such Stockholder Holder in lieu thereof, against surrender of the Shares Membership Interests which would have otherwise been sold by such StockholderHolder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder Holder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder RepresentativeMembership Interests.
Appears in 1 contract
Actions to be Taken. In the event that at any time (i) the holders of a majority at least [***] of the shares of Common Stock then issued or issuable or issued upon conversion of the shares of Preferred [***] (other than shares of Common Stock voting together as a single class issued pursuant to the Special Mandatory Conversion provisions of the Restated Certificate) (the “Selling Investors”), ) and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section Subsection 3.3 below, on the same terms and conditions as the Selling Investorsother stockholders of the Company;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, any associated indemnity agreement, or escrow agreement, any associated voting, support, or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) to refrain from (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedamended (the “Securities Act”), the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and;
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (xi) to consent to (iA) the appointment of such Stockholder Representative, (iiB) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iiiC) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (yii) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, faith or willful misconduct and (z) execute and deliver any power-of-attorney misconduct; provided, however that this Section 3 shall not apply to the holders of [***] unless the holders of at least [***] of the shares of Common Stock then issued or other documentation reasonably requested by issuable upon conversion of the Stockholder Representativeshares of [***] so approve.
Appears in 1 contract
Actions to be Taken. In the event that (i) the holders of a majority at least 75% of the shares of Class A Common Stock then issued or issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”)Stock, and (ii) the Board of Directors (including each of the Preferred Directors, as that term is defined in the Restated Certificate); and (iii) the holders of a majority of the then outstanding shares of Class A Common Stock held by the Common Holders (other than shares of Class A Common Stock issued or issuable upon conversion of Preferred Stock) (the holders in (i) and (iii) collectively, the “Electing Holders”) approve a Sale of the Company in writing, specifying that this Section 3 3.2 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agrees:
(a) if such transaction requires stockholder approval, with respect to all Shares shares of the Company’s capital stock that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares such shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person person to whom the Selling Investors Electing Holders propose to sell their Sharesshares, and, except as permitted in Section Subsection 3.3 below, on the same terms and conditions as the Selling InvestorsElecting Holders;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Electing Holders in order to carry out the terms and provision of this Section 3, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their Affiliates affiliates not to deposit, except as provided in this Agreement, any Shares shares of the Company Company’s capital stock owned by such party or Affiliate affiliate in a voting trust or subject any Shares shares of the Company’s capital stock to any arrangement or agreement with respect to the voting of such Sharesshares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or ;
(ii); asserting any claim or commencing any suit g) no such Stockholder (x) challenging the Sale other than an employee of the Company Company) shall be required to agree to a non-compete, non-solicitation, non-interference or this Agreement, or similar restrictive covenant;
(yh) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) no such Stockholder shall be required to release claims in connection with the evaluation, negotiation or entry into the Sale sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely release of claims relating to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative equity investment in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative ownership of the Stockholdersequity interests in the Company, but in the case of (y) not h), only to assert any claim the extent a substantially similar provision or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken release is entered into by the Stockholder Representative, within the scope holders of a majority of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativeoutstanding Preferred Stock.
Appears in 1 contract
Actions to be Taken. In the event that the Holders (ithe “Dragging Holders”) the holders of representing a majority of the shares of Common Stock then issuable or issued upon conversion of the then-outstanding shares of Preferred Stock Stock, voting together as a single class (the a “Selling InvestorsRequisite Approval”), ) and (ii) the Board of Directors, Directors approve a Sale Change of the Company Control in writing, specifying that this Section 3 10(a) shall apply to such transaction, then, subject to satisfaction of then each of the conditions set forth in Subsection 3.3 below, each Stockholder and the Company Holder hereby agrees:
(ai) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder Holder owns or over which such Stockholder Holder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale Change of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) Control and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale Change of the CompanyControl;
(bii) if such transaction is a Stock Salesale of Capital Stock, to sell the same proportion of shares of capital stock of the Company Shares beneficially held by such Stockholder Holder as is being sold by the Selling Investors Dragging Holders to the Person to whom the Selling Investors Dragging Holders propose to sell their SharesShares (determined on an as-converted to Common Stock basis), and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling InvestorsDragging Holders;
(ciii) to execute and deliver all related documentation and take such other action in support of the Sale Change of the Company Control as shall reasonably be requested by the Company or the Selling Investors Dragging Holders in order to carry out the terms and provision provisions of this Section 310(a), including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(div) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company Capital Stock owned by such party Holder or Affiliate in a voting trust or subject any Shares Capital Stock to any arrangement or agreement with respect to the voting of such SharesCapital Stock, unless specifically requested to do so by the acquiror in connection with the Sale Change of the Company;Control; and
(e) (iv) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale Change of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder RepresentativeControl.
Appears in 1 contract
Actions to be Taken. In the event that (i) the holders of If Shareholders constituting a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class Shareholder Majority (the “Selling InvestorsShareholders”) receive and wish to accept a bona fide offer in writing from a Third Party (the “Third Party Purchaser”) to purchase all, but not less than all, of the Shares held by the Selling Shareholders, which, if consummated, would constitute a Change of Control Transaction (a “Third Party Offer”), then the Selling Shareholders may deliver written notice (a “Drag-Along Notice”) to the other Shareholders (the “Other Shareholders”) and (ii) the Board of Directors, approve a Sale of Corporation requiring the Company in writing, specifying that this Section 3 shall Other Shareholders to sell their Shares to the Third Party Purchaser on the same terms and conditions as apply to such transaction, thenthe sale by the Selling Shareholders of their Shares to the Third Party Purchaser. Upon receipt of a Drag-Along Notice, subject to satisfaction of each of the conditions set forth in Subsection 3.3 belowSection 5.2, each Stockholder and the Company hereby agreesOther Shareholder shall be obligated:
(a) if such transaction Change of Control Transaction requires stockholder shareholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares owned by or over which such Shareholder otherwise exercises voting power, in favor of, and adopt, favour of such Sale Change of the Company Control Transaction (together with including any related amendment or restatement to the Restated Certificate Corporation’s constating documents required in order to implement such Sale Change of the CompanyControl Transaction) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company Corporation to consummate such Sale Change of the CompanyControl Transaction;
(b) if such transaction is Change of Control Transaction involves a Stock Share Sale, to sell all the same proportion of shares of capital stock of the Company Shares beneficially held by such Stockholder as is being sold by the Selling Investors Other Shareholder to the Person to whom the Selling Investors Shareholders propose to sell their Shares, and, except as permitted in Section 3.3 5.2 below, on the same terms and conditions as apply to the Selling InvestorsShareholders;
(c) to execute and deliver all related documentation and take such other action in support of the Sale Change of the Company Control Transaction as shall reasonably be requested by the Company Corporation or the Selling Investors Shareholders in order to carry out the terms and provision conditions of this Section 3the Change of Control Transaction, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, arrangement agreement, any associated indemnity agreement, or escrow agreement, any associated voting, support, or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates Eligible Transferee not to deposit, except as provided in this Agreement, any Shares of the Company Corporation owned by such party or Affiliate Eligible Transferee in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale Change of the CompanyControl Transaction;
(e) to refrain from (i) to refrain from exercising any dissenters’ dissent rights or rights of appraisal under applicable law at any time with respect to such Sale Change of the CompanyControl Transaction, or (ii); asserting any claim or commencing any suit (x) challenging the Sale Change of the Company Control Transaction or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors Shareholders or any affiliate or associate thereof or member of the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale Change of the CompanyControl Transaction, or the consummation of the transactions contemplated thereby;; and
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling InvestorsShareholders, in connection with such Sale Change of the CompanyControl Transaction, appoint a stockholder shareholder representative (the “Stockholder Shareholder Representative”) with respect to matters affecting the Stockholders Shareholders under the applicable definitive transaction agreements following consummation in connection with such Change of such Sale of the CompanyControl Transaction, (x) to consent to (i) the appointment of such Stockholder Shareholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iiii) the payment of such StockholderShareholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Shareholder Representative in connection with such Stockholder Shareholder Representative’s services and duties in connection with such Sale Change of the Company Control Transaction and its related service as the representative of the StockholdersShareholders, and (y) not to assert any claim or commence any suit against the Stockholder Shareholder Representative or any other Stockholder Shareholder with respect to any action or inaction taken or failed to be taken by the Stockholder Shareholder Representative, within the scope of the Stockholder Shareholder Representative’s authority, in connection with its service as the Stockholder Shareholder Representative, absent fraud, bad faith, gross negligence or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 1 contract
Actions to be Taken. In the event that (i) the holders of at least a majority of the shares of Common Stock then issuable or issued upon conversion of the shares holders of Preferred Stock Stock, voting together as a single class (the “Selling Investors”)on an as-converted basis, and (ii) Key Holders representing two-thirds of the Board fully diluted equity of Directors, all Key Holders (the “Selling Stockholders”) approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agrees:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate Articles required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors Stockholders to the Person to whom the Selling Investors Stockholders propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling InvestorsStockholders;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Stockholders in order to carry out the terms and provision of this Section 3, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;and
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 1 contract
Samples: Voting Agreement (Benefitfocus,Inc.)
Actions to be Taken. In the event that (i) the holders of a majority of the shares of Common Investors holding a Series A-1 Preferred Stock then issuable or issued upon conversion and Investors who held Legacy Preferred Stock as of the shares of Preferred Stock Conversion Date, voting together as a single class on an as-converted to Common Stock basis (the “Selling Investors”), and (ii) the Board of Directors, approve a Sale of the Company in writingwriting in which the holders of the Series A-1 Preferred Stock will receive per share proceeds exceeding the per share purchase price of the Series A-1 Preferred Stock, specifying that this Section 3 5 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 Subsection 5.3 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 35, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 5 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Representative in connection with its service as the Stockholder Representative, absent fraud, bad faith, gross negligence or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 1 contract
Actions to be Taken. In the event that (i) the Board and (ii) the holders of a majority of the shares of the Common Stock then issued or issuable or issued upon conversion of the then outstanding shares of the Preferred Stock held by the Investors (voting together as a single separate class and on an as-converted basis) (the “Selling InvestorsElecting Holders”), and (ii) the Board of Directors, approve a Sale of the Company or a SPAC Transaction (as defined in the Restated Certificate) or a Reverse Merger (as defined in the Restated Certificate) with a Listed Entity (as defined in the Restated Certificate) in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection Section 3.3 below, each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all of the Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) or such SPAC Transaction or Reverse Merger with a Listed Entity and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the CompanyCompany or such SPAC Transaction or Reverse Merger with a Listed Entity;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being proposed to be sold by the Selling Investors Electing Holders to the Person to whom the Selling Investors Electing Holders propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling Investorsother stockholders of the Company;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company or such SPAC Transaction or Reverse Merger with a Listed Entity as shall reasonably be requested by the Company or the Selling Investors Electing Holders in order to carry out the terms and provision of this Section 3, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, transaction agreement, business combination agreement, merger agreement, any associated indemnity agreement, or escrow agreement, any associated voting, support, or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the CompanyCompany or such SPAC Transaction or Reverse Merger with a Listed Entity;
(e) to refrain from (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the CompanyCompany or such SPAC Transaction or Reverse Merger with a Listed Entity, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company Company, such SPAC Transaction or Reverse Merger with a Listed Entity or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors Board, the Electing Holders or any affiliate Affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the CompanyCompany or or such SPAC Transaction or Reverse Merger with a Listed Entity, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedamended (the “Securities Act”), the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling InvestorsElecting Holders, in connection with such Sale of the CompanyCompany or such SPAC Transaction or Reverse Merger with a Listed Entity, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the CompanyCompany or such SPAC Transaction or Reverse Merger with a Listed Entity, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company or such SPAC Transaction or Reverse Merger with a Listed Entity and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, gross negligence or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 1 contract
Actions to be Taken. In Notwithstanding anything herein or in the Memorandum and Articles of Association to the contrary, in the event that (i) the holders of a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Majority Investors”), and (ii) the Board of DirectorsOrdinary Majority ((i) and (ii), collectively, the “Selling Investors”) approve a Sale of the Company in writing, specifying that this Section 3 8.1 shall apply to such transaction, then, subject to satisfaction of then each of the conditions set forth in Subsection 3.3 below, each Stockholder and the Company hereby Member agrees:
(a) if such transaction requires stockholder approvalapproval of the Members of the Company, with respect to all Shares that such Stockholder Member owns or over which such Stockholder Member otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all such Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate Memorandum and Articles of Association required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Share Sale, to sell the same proportion of shares of capital stock of the Company Shares beneficially held by such Stockholder Member as is being sold by the Selling Investors to the Person person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 below8.2 hereof, on the same terms and conditions as the Selling Investors; in the event that such Member also holds any equity interest in the JV Entity, such Member shall, subject to cooperation of the person to whom the Selling Investors propose to sell the Shares, also sell certain portion of equity interests held by such Member, the percentage of which to be sold in the JV Entity shall be consistent with the percentage of Shares to be sold by such Member, to the person to whom the Selling Investors propose to sell the Shares;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 38.1, including without limitation (i) executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documentsdocuments and (ii) in the event of a Share Sale that have been approved by the Selling Investors and the person to whom the Selling Investors propose to sell the Shares (the “Proposed Purchaser”) does not purchase the Option from any Member or the Proposed Purchaser does not intend to hold equity interest in the JV Entity, such Member shall exercise or designate an Affiliate to exercise its Option in accordance with the Option Agreement as soon as practicable and such Member and/or its Affiliate shall sell its Option Shares to the Proposed Purchaser according to the terms and conditions of the approved Share Sale; if such Member fails to have such Options exercised at least ten (10) Business Days prior to the scheduled closing of the Share Sale, (X) the WFOE II shall have the right to purchase from such Member and such Member shall be obligated to sell to the WFOE II such portion of the equity interest in the JV Entity held by such Member equivalent to the Option Shares available to such Member that such Member is required to sell in the Share Sale at a price to be determined pursuant to Section 8.2(e) below, (Y) the total number of Option Shares available to such Member shall be decreased proportionally to the equity interest in the JV Entity to be sold by such Member to the WFOE II pursuant to (X) above, and (Z) the Company will simultaneously issue to the Proposed Purchaser certain number and class of Shares consistent with such number of Option Shares decreased pursuant to (Y) above provided that the WFOE II shall simultaneously or within a schedule otherwise agreed upon between the WOFE II and such a Member pay the price of the transferred equity interest in full to the Member who transfers the foregoing portion of the equity interest in the JV Entity to the WFOE II;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or its Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law Law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;and
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 8 includes any securities and due receipt thereof by any Stockholder Member would require under applicable law Law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder Member of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder Member in lieu thereof, against surrender of the Shares which would have otherwise been sold by such StockholderMember, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder Member would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 1 contract
Actions to be Taken. In the event that (a) holders representing at least fifty percent (50%) of the Common Shares (i) the holders of a majority of the shares of Common Stock then issued and outstanding and (ii) issuable or issued upon conversion of the shares of Preferred Stock Series A Preference Shares, voting together as a single class, and (b) holders representing at least fifty percent (50%) of the Series A Preference Shares then issued and outstanding voting as a separate class (collectively, the “Selling InvestorsHolders”), and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 4 shall apply to such transaction, then, subject to satisfaction of then each of the conditions set forth in Subsection 3.3 below, each Stockholder Holder and the Company hereby agrees:: Shareholders’ Agreement 11 Confidential
(a) if such transaction requires stockholder shareholder approval, with respect to all Capital Shares that such Stockholder Holder owns or over which such Stockholder Holder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Series A Preference Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate Articles required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Share Sale, to sell the same proportion of shares of capital stock Capital Shares of the Company beneficially held by such Stockholder Holder as is being sold by the Selling Investors Holders to the Person to whom the Selling Investors Holders propose to sell their Capital Shares, and, except as permitted in Section 3.3 Subsection 4.3 below, on the same terms and conditions as the Selling InvestorsHolders;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Holders in order to carry out the terms and provision of this Section 34, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Capital Shares of the Company owned by such party or Affiliate in a voting trust or subject any Capital Shares to any arrangement or agreement with respect to the voting of such Capital Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising irrevocably waive any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Capital Shares pursuant to this Section 3 4 includes any securities and due receipt thereof by any Stockholder Holder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder Holder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder Holder in lieu thereof, against surrender of the Capital Shares which would have otherwise been sold by such StockholderHolder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder Holder would otherwise receive as of the date of the issuance of such securities in exchange for the Capital Shares; and
(g) in the event that the Selling InvestorsHolders, in connection with such Sale of the Company, appoint a stockholder shareholder representative (the “Stockholder Shareholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Shareholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such StockholderHolder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Shareholder Representative in connection with such Stockholder Shareholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholdersthe, and (y) not to assert any claim or commence any suit against the Stockholder Shareholder Representative or any other Stockholder Holder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Shareholder Representative in connection with its service as the Stockholder Shareholder Representative, absent fraud, bad faith, fraud or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.misconduct. Shareholders’ Agreement 12 Confidential
Appears in 1 contract
Actions to be Taken. In the event that (i) the holders of at least a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”), and (ii) the Board and (iii) solely in the case of Directorsa Sale of the Company resulting in the holders of Preferred Stock receiving per share of Preferred Stock an amount less than the Liquidation Amount, the holders of a majority of the Preferred Stock then issued exclusively and as a separate class (collectively, (i)-(iii) are the “Electing Holders”) approve a Sale of the Company (which approval of the Electing Holders must be in writing), specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection Section 3.3 below, each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling Investorsother stockholders of the Company;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, any associated indemnity agreement, or escrow agreement, any associated voting, support, or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) to refrain from (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedamended (the “Securities Act”), the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, gross negligence or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 1 contract
Samples: Preferred Stock Purchase Agreement (Ondas Holdings Inc.)
Actions to be Taken. In the event that (i) the holders of a majority at least 75% of the shares of Class A Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (collectively, the “Selling InvestorsElecting Holders”), and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 2.03 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agreesagree:
(ai) if such transaction requires stockholder approval, with respect to all Shares Capital Stock that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares Capital Stock in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company to consummate such Sale of the Company;
(bii) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors Electing Holders to the Person to whom the Selling Investors Electing Holders propose to sell their SharesCapital Stock, and, except as permitted in Section 3.3 2.03(c) below, on the same terms and conditions as the Selling InvestorsElecting Holders; provided that the Class H Common Stock shall be subject to the limitations and rights as provided in the Restated Certificate;
(ciii) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Electing Holders in order to carry out the terms and provision of this Section 32.03, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(div) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company Capital Stock or Stock Equivalents owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such SharesCapital Stock or Stock Equivalents, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (iv) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(fvi) if the consideration to be paid in exchange for the Shares Capital Stock or Stock Equivalents pursuant to this Section 3 2.03 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares Capital Stock or Stock Equivalents which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the SharesCapital Stock or Stock Equivalents; and
(gvii) in the event that the Selling InvestorsElecting Holders, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (iA) the appointment of such Stockholder Representative, (iiB) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iiiC) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Representative in connection with its service as the Stockholder Representative, absent fraud, bad faith, fraud or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 1 contract
Actions to be Taken. In the event that at any time on or after the third (i3rd) anniversary of the date hereof, the holders of a majority representing at least fifty percent (50%) of the then outstanding shares of Common Stock then issuable or issued upon conversion of the shares of Series B Preferred Stock voting together as a single class (the “Selling Investors”), and (ii) the Board of Directors, approve approves a Sale of the Company in writingCompany, specifying that this Section 3 shall apply to such transaction, thenthen each Stockholder, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, each Stockholder and the Company hereby agrees:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate Company’s organizational documents required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;and
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 1 contract
Samples: Stock Purchase Agreement (Planet Technologies, Inc)
Actions to be Taken. In the event that (a) the holders of at least a majority of the then outstanding shares of Preferred Stock approve a Sale of the Company; provided, however, that if (i) the Sale of the Company would result in the holders of Series B-3 Preferred Stock receiving a per share amount less than the greater of (A) $6.139997 per share (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Common Stock) or (B) the Series B-3 Liquidation Amount (as such term is defined in the Corporation’s Fourth Amended and Restated Certificate of Incorporation), then such approval by the majority of the outstanding shares of Preferred Stock must also include the holders of a majority of the shares of Common Series B-3 Preferred Stock then issuable or issued upon conversion outstanding, and (ii) the Sale of the Company would result in the holders of Series BB-3 Preferred Stock receiving a per share amount less than the greater of (A) $6.139997 per share (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Common Stock) or (B) the Series BB-3 Liquidation Amount (as such term is defined in the Corporation’s Fourth Amended and Restated Certificate of Incorporation), then such approval by the majority of the outstanding shares of Preferred Stock voting together must also include the holders of a majority of the Series BB-3 Preferred Stock then outstanding (the requisite holders listed in subsection (a) are collectively referred to herein as a single class (the “Selling Investors”), and (iib) the Board of Directors, approve approves a Sale of the Company in writingCompany, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agrees:
(a) if such transaction requires stockholder approval, with respect to all Stockholder Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Stockholder Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Company’s Second Amended and Restated Certificate of Incorporation required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person persons and/or entities to whom the Selling Investors propose to sell their Shares, shares of capital stock of the Company and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the such Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their Affiliates affiliates not to deposit, except as provided in this Agreement, any Stockholder Shares of the Company owned by such party or Affiliate affiliate in a voting trust or subject any Stockholder Shares to any arrangement or agreement with respect to the voting of such Stockholder Shares, unless specifically requested to do so by the acquiror in connection with the such Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;and
(f) if the consideration to be paid in exchange for the Stockholder Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (xi) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (yii) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended(“Accredited Investors”), the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Stockholder Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Stockholder Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 1 contract
Samples: Voting Agreement (RetailMeNot, Inc.)
Actions to be Taken. In the event that (i) the Board of Directors and (ii) the holders of a majority at least 70% of the shares of Common Stock then issued or issuable or issued upon conversion of the shares of Series A Preferred Stock voting together as a single class (the “Selling Investors”), and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of then each Stockholder holding greater than one percent (1%) or more of the conditions set forth in Subsection 3.3 belowCompany’s then outstanding capital stock (treating for this purpose all shares of Common Stock issuable upon exercise of or conversion of outstanding options, each Stockholder and the Company warrants or convertible securities, as if exercised and/or converted or exchanged) hereby agrees:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;and
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 1 contract
Samples: Voting Agreement (Opgen Inc)
Actions to be Taken. In the event that (i) the holders of at least a majority of the shares of Common Stock then issued or issuable or issued upon conversion of the shares of Series AA Preferred Stock voting together as a single class and the Series B Preferred Stock (the “Selling Investors”), ) and (ii) the Board of Directors, Directors approve a Sale of the Company in writing, specifying that this Section 3 5 shall apply to such transaction, then, subject to satisfaction of each of then the conditions set forth in Subsection 3.3 below, each Stockholder and the Company Investors hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns the Investors own or over which such Stockholder the Investors otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder the Investors as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 5.3 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision provisions of this Section 3, 5. including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;and
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 5 includes any securities and due receipt thereof by any Stockholder Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder Investor in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholderthe Investor, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder the Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 1 contract
Actions to be Taken. In the event that (i) the holders of a majority of the shares of Common Stock then issuable Juvenescence or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”)its Affiliates, and (ii) the Board of DirectorsBoard, including the BioTime Directors approve a Sale of the Company AgeX in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 belowSection 3.3, each Stockholder and the Company hereby Party agrees:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder Party owns or over which such Stockholder Party otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company AgeX (together with any related amendment or restatement to the Restated AgeX’s Certificate of Incorporation required in order to implement such Sale of the CompanyAgeX) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company AgeX to consummate such Sale of the CompanyAgeX;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company AgeX beneficially held by such Stockholder Party as is proportionately being sold by from the Selling Investors to the Person to whom the Selling Investors propose to sell their AgeX Transaction Shares, and, except as permitted in Section 3.3 below3.3, on the same terms and conditions as the Selling InvestorsAgeX Transaction Shares are being sold;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company AgeX as shall reasonably be requested by the Company AgeX or the Selling Investors Juvenescence or its Affiliates in order to carry out the terms and provision of this Section 3, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, any associated indemnity agreement, or escrow agreement, any associated voting, support, or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company AgeX owned by such party Party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the CompanyAgeX;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated therebyAgeX;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder Party would require under applicable law (xi) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (yii) the provision to any Stockholder Party of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933Act, as amended, the Company AgeX may cause to be paid to any such Stockholder Party in lieu thereof, against surrender of the Shares which would have otherwise been sold by such StockholderParty, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder Party would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investorsthat, in connection with such Sale of the CompanyAgeX, appoint a stockholder representative (the “Stockholder Representative”) is appointed with respect to matters affecting the Stockholders Parties under the applicable definitive transaction agreements following consummation of such Sale of the CompanyAgeX, (xi) to consent to (iA) the appointment of such Stockholder Representative, (iiB) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iiiC) the payment of such StockholderParty’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company AgeX and its related service as the representative of the StockholdersParties, and (yii) not to assert any claim or commence any suit against the Stockholder Representative or any the other Stockholder Party with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, gross negligence or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 1 contract
Samples: Shareholder Agreement (Biotime Inc)
Actions to be Taken. In the event that (i) the holders of a majority at least sixty-six and two-thirds percent (66 2/3 %) of the shares of Common Stock then issued or issuable or issued upon conversion of the shares of the Senior Preferred Stock and the Series SRN Preferred Stock, voting together as a single class and on an as-converted to Common Stock basis (determined, in the case of the Series E Preferred Stock, without regard to the special conversion ratios set forth in Section 3.3(a)(i)(1) and Section 3.3(b)(i)(2) of the Company Charter in effect on the date hereof), and (ii) the holders of at least sixty percent (60%) of the then outstanding shares of Common Stock, voting together as a single class (those holders referenced in subsections (i) and (ii), collectively, the “Selling InvestorsStockholders”), and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 4 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agrees:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all such Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate Company Charter required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors Stockholders to the Person person to whom the Selling Investors Stockholders propose to sell their Shares, and, except as permitted in Section 3.3 4.3 below, on the same terms and conditions as the Selling InvestorsStockholders;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Stockholders in order to carry out the terms and provision provisions of this Section 34, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;and
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 4 includes any securities and due receipt thereof by any Stockholder would require under applicable law (xi) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (yii) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 1 contract
Actions to be Taken. In the event that (i) the holders of a majority of the shares Outstanding Shares approve a Sale Transaction that provides Stockholders with cash or securities of Common Stock then issuable a publicly traded company, (ii) the Strategic Review Committee approves a Strategic Alternative in accordance with Section 3.3 and requests that the Drag-Along Right to be invoked in connection therewith or issued upon conversion (iii) each of (A) the holders of a majority of the shares Outstanding Shares and (B) the Board, including the approval of Preferred Stock voting together (x) a Cupar Director (for so long as a single class (the “Selling Investors”Cupar Approval Right is in effect), and (iiy) at least one of the Board of DirectorsSoftBank Director (for so long as the SoftBank Approval Right is in effect) or the AHG Director (for so long as the AHG Approval Right is in effect), approve a Sale Transaction that provides Stockholders with other securities (including securities of the Company a non-publicly traded company), property or other non-cash consideration and, in writingeach case, specifying specify that this Section 3 Article 8 shall apply to such transactiontransaction (the “Drag-Along Right”), then, the Person(s) invoking the Drag-Along Right shall provide written notice at least twenty (20) Business Days prior to the consummation of any such Sale Transaction (a “Drag-Along Notice”) pursuant to which such Person(s) may elect to require each Stockholder to participate in such Sale Transaction on the terms and subject to the conditions set forth in this Section 8.1 (such transaction, a “Drag-Along Sale”), in which case, each Stockholder shall be deemed to have provided any applicable consents to (and, if requested, shall confirm such consent in writing), and agrees to raise no objections against, such Drag-Along Sale. The Drag-Along Notice shall identify the material terms and conditions of the Drag-Along Sale, including (A) the percentage of the aggregate number of outstanding Shares proposed to be Transferred; (B) the form and amount of per Share consideration for which the Transfer is proposed to be made (and, if such consideration consists in part or in whole of property other than cash, the Drag-Along Notice will include such information, to the extent reasonably available, relating to such non-cash consideration as the Stockholders may reasonably request in order to evaluate such non-cash consideration), (C) the proposed closing date of the Drag-Along Sale, if known; and (D) all other material terms and conditions of the Drag-Along Sale, including the form of the proposed agreement, if any. Subject to satisfaction of each of the conditions set forth in Subsection 3.3 belowSection 8.1(g), each Stockholder and the Company Corporation hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adoptapprove, such Sale of the Company Transaction (together with any related amendment or restatement to the Restated Certificate of Incorporation required in order to implement such Sale of Transaction) and the Companyrelated definitive agreement(s) pursuant to which the Sale Transaction is to be consummated and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company Corporation to consummate such Sale of the CompanyTransaction;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock all of the Company Shares of the Corporation beneficially held by such Stockholder as is being sold by (such holders, the Selling Investors “Dragging Stockholders”) to the Person to whom the Selling Investors Dragging Stockholders propose to sell their Shares, and, except as expressly permitted in Section 3.3 8.1(g) below, on the same terms and conditions (including the amount of per Share consideration) as the Selling Investorsother stockholders of the Corporation;
(c) to execute and deliver all related documentation and take such other reasonable action in support of the Sale of the Company Transaction as shall reasonably be requested by the Company Corporation or the Selling Investors Dragging Stockholders in good faith and necessary in order to carry out the terms and provision of this Section 3Article 8, including without limitation including, (i) executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity any reasonably customary release agreement in the capacity of a securityholder, termination of investment related documents, accredited investor forms, documents evidencing the removal of board designees or escrow agreement, escrow any associated voting, support, or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documentsdocuments and (ii) providing any information reasonably necessary for any public filings with the SEC in connection with the Sale Transaction;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company Corporation owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the CompanyTransaction;
(e) to refrain from, and hereby waives any rights relating to, (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the CompanyTransaction, or (ii); ) asserting any claim or commencing commencing, joining or participating in any way (including as a member of a class in any action, suit or proceeding) (x) challenging the Sale Transaction, this Agreement, the consummation of the Company transactions contemplated in connection with the Sale Transaction or this Agreement, (y) challenging the validity of, or seeking to enjoin the operation of, the definitive agreement(s) with respect to such Sale Transaction or (yz) alleging a breach of any fiduciary duty of the Selling Investors Dragging Stockholders or any affiliate Affiliate or associate thereof thereof, directors of the Corporation or the Board acquirer(s) (including, without limitation, including aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation Sale Transaction or entry into any action taken thereby with respect to such Sale Transaction to the Sale of the Company, or the consummation of the transactions contemplated therebyfullest extent permitted by law;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 Article 8 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company Corporation may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and;
(g) in the event that the Selling InvestorsDragging Stockholders, in connection with such Sale of the CompanyTransaction, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the CompanyTransaction, (xi) to consent to (ix) the appointment of such Stockholder Representative, (iiy) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, obligations and (iiiz) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company Transaction and its related service as the representative of the Stockholders, and (yii) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, gross negligence or willful misconduct misconduct; and
(h) with respect to the Drag-Along Right and as to SoftBank, the Shares then held by SoftBank shall be deemed to include the SoftBank Exit LC Facility Triggering Event Shares and such SoftBank Exit LC Facility Triggering Event Shares shall be entitled to and shall fully participate in such Drag-Along Sale in accordance with this Article 8 (zacknowledging that SoftBank may make necessary modifications to the representations set forth in Section 8.2(a) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativeas to such SoftBank Exit LC Facility Triggering Event Shares).
Appears in 1 contract
Samples: Stockholders Agreement (WeWork Inc.)
Actions to be Taken. In the event that (i) the Board and the holders of a majority of the shares of Common Stock then issuable or issued upon conversion of the outstanding shares of Preferred Stock voting together as a single class (the “Selling InvestorsRequisite Parties”), and (ii) the Board of Directors, approve a Sale of the Company in writingCompany, specifying that this Section 3 shall apply then each Shareholder, with respect to such transactionall Shares which it own(s) or over which it otherwise exercises voting or dispositive authority, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, each Stockholder and the Company hereby agrees:
(a) if in the event such transaction requires stockholder approvalSale of the Company is to be brought to a vote at a shareholder meeting, with respect after receiving proper notice of any meeting of shareholders of the Company, to all Shares that be present, in person or by proxy, as a holder of Shares, at such Stockholder owns or over which meeting and be counted for the purposes of determining the presence of a quorum at such Stockholder otherwise exercises voting power, meetings and to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and to adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such transaction is a Stock Sale, to sell the same proportion of shares of capital stock Sale of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling InvestorsCompany;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documentsRequisite Parties;
(d) if the Sale of the Company is structured as a Stock Sale, to sell the same proportion of his, her or its Shares as is being sold by the Requisite Parties, and, except as permitted in Subsection 3.3 below, on the same terms and conditions as the Requisite Parties;
(e) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party Shareholder or Affiliate in a voting trust or subject any such Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;and
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder Shareholder would require under applicable law (xi) the registration or qualification of such securities or of any person Person as a broker or dealer or agent with respect to such securities or (yii) the provision to any Stockholder Shareholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder Shareholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such StockholderShareholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder Shareholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 1 contract
Actions to be Taken. In the event that (i) the holders of a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”), and (ii) the Board of Directors, Investor Deciders approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agrees:
(ai) if such transaction requires stockholder approval, with respect to all Shares shares of Common Stock, Series A-1 Preferred Stock or Series A-2 Preferred Stock (the “Shares”) that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to the extent applicable, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company; provided, that the foregoing shall not require the Warrantholders to so vote their Shares if such vote would, in such Warrantholder’s reasonable and good faith discretion, cause the board of directors, general partner, manager or equivalent body of such Warrantholder to violate its fiduciary duties;
(bii) if such transaction is a Stock Salesale of stock, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors Investor Deciders to the Person to whom the Selling Investors Investor Deciders propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling Investors;
(ciii) to execute and deliver all related documentation in materially similar form as executed by the Investor Deciders and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Investor Deciders in order to carry out the terms and provision of this Section 3, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consentconsent (except, in the case of Warrantholders, for any consent that would, in such Warrantholder’s reasonable and good faith discretion, cause the board of directors, general partner, manager or equivalent body of such Warrantholder to violate its fiduciary duties), waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not ; provided, to deposit, the extent that the Stockholders are required to provide any indemnification with respect to breaches of representations and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares warranties by or on behalf of the Company owned or agreements by the Company or otherwise assume any other post-closing liabilities, each Stockholder (other than the Preferred Stockholders) shall do so severally and not jointly (and on a pro rata basis in accordance with the proceeds to be received by such party or Affiliate Stockholder; provided, further, the only representations and warranties that a Stockholder shall be required to make in a voting trust or subject any Shares to any arrangement or agreement connection with such sale transaction are with respect to the voting of such Shareshis, unless specifically requested to do so by the acquiror in connection with the Sale her or its ownership of the Company;Shares to be sold by him, her or it (which shall only include his, her or its ability to convey title free and clear of all liens, encumbrances, adverse claims or similar restrictions; no conflicts with agreements to which, he, she or it is a party; no conflicts with law; authority; and enforceability) and no Stockholder shall be liable (on a pro rata basis or otherwise) for breach of the representations and warranties of any other Stockholder made in its individual capacity as to its individual ownership, authorization and other related matters which apply only to such Stockholder; provided further that each Stockholder’s respective potential liability thereunder (including any tax liability) shall not exceed the actual proceeds received by such Stockholder; and
(e) (iiv) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company. Notwithstanding the foregoing, or (ii); asserting any claim or commencing any suit (x) challenging in no event shall the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof Preferred Stockholders or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration Warrantholders be required to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision agree to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense non-compete or similar fund non-solicitation covenants in connection with any indemnification or similar obligationssale under this Section 3. In the event a sale under this Section 3 provides for consideration in a form other than cash, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of then the Company and its related service as shall structure such sale so that the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Warrantholders receive only cash in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativesuch sale.
Appears in 1 contract
Samples: Voting and Drag Along Agreement (Montrose Environmental Group, Inc.)
Actions to be Taken. In the event that (i) the Board; (ii) the holders of a majority of the then outstanding shares of Common Stock then (other than those issued or issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”Stock), and (iiiii) solely if the Board Deemed Liquidation Event would not return economic value to the holders of DirectorsSeries A-2 Preferred Stock worth at least $5.30per share (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such class or series), H2 (collectively, (i)-(ii) or (i)-(iii), as applicable, are the “Electing Holders”) approve a Sale of the Company (which approval of the Electing Holders must be in writing), specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection Section 3.3 below, each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling Investorsother stockholders of the Company;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, any associated indemnity agreement, or escrow agreement, any associated voting, support, or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) to refrain from (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedamended (the “Securities Act”), the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 1 contract
Actions to be Taken. In the event that If (i) the holders of at least a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class and outstanding (the “Selling InvestorsStockholders”), ) and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate Company’s certificate of incorporation required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors Stockholders to the Person to whom the Selling Investors Stockholders propose to sell their Shares, and, except as permitted in Section Subsection 3.3 below, on the same terms and conditions as the Selling Investorsother stockholders of the Company;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order Stockholders to carry out the terms and provision of this Section 3, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, any associated indemnity agreement, or escrow agreement, any associated voting, support, or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) to refrain from (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, Company or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedamended (the “Securities Act”), the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that if the Selling InvestorsStockholders, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, gross negligence or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 1 contract
Samples: Stockholder Agreement
Actions to be Taken. In the event that both of (i) the holders of a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”), Board and (ii) the Board of DirectorsRequired Investors, authorize and approve a Sale of the Company in writing, specifying that this Section 3 5 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company Capital Stock beneficially held by such Stockholder as is being sold by the Selling Investors Required Series A Holders to the Person to whom or which the Selling Investors Required Series A Holders propose to sell their Shares, Shares and, except as permitted in Section 3.3 5.3 below, on the same terms and conditions as the Selling InvestorsRequired Series A Holders;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Required Series A Holders in order to carry out the terms and provision of this Section 35, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 5 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person Person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and;
(g) in the event that the Selling InvestorsRequired Series A Holders, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its the related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Representative in connection with its service as the Stockholder Representative, absent fraud, bad faith, fraud or willful misconduct misconduct; and
(h) with respect to any Stock Sale, the liquidation preferences and (z) execute priorities of the Series A Preferred Stock set forth in the Certificate shall apply with respect to the allocation of proceeds to the Stockholders in such Stock Sale in the same manner as such liquidation preferences and deliver priorities are set forth therein in connection with Deemed Liquidation Events, and any power-of-attorney or other documentation reasonably requested by the Stockholder Representativeagreement for any such Stock Sale shall give effect to such liquidation preferences and priorities.
Appears in 1 contract
Samples: Voting Agreement (M&m Media, Inc.)
Actions to be Taken. In the event that both of (i) the holders of a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”), Board and (ii) the Board of DirectorsRequired Investors, authorize and approve a Sale of the Company in writing, specifying that this Section 3 5 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company Capital Stock beneficially held by such Stockholder as is being sold by the Selling Investors Required Preferred Holders to the Person to whom or which the Selling Investors Required Preferred Holders propose to sell their Shares, Shares and, except as permitted in Section 3.3 below5.3, on the same terms and conditions as the Selling InvestorsRequired Preferred Holders;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Required Preferred Holders in order to carry out the terms and provision of this Section 35, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 5 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person Person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and;
(g) in the event that the Selling InvestorsRequired Preferred Holders, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its the related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Representative in connection with its service as the Stockholder Representative, absent fraud, bad faith, fraud or willful misconduct misconduct; and
(h) with respect to any Stock Sale, the liquidation preferences and (z) execute priorities of the Preferred Stock set forth in the Certificate shall apply with respect to the allocation of proceeds to the Stockholders in such Stock Sale in the same manner as such liquidation preferences and deliver priorities are set forth therein in connection with Deemed Liquidation Events, and any power-of-attorney or other documentation reasonably requested by the Stockholder Representativeagreement for any such Stock Sale shall give effect to such liquidation preferences and priorities.
Appears in 1 contract
Samples: Voting Agreement (M&m Media, Inc.)
Actions to be Taken. In the event that (i) the holders of a majority Management Board and where required the Supervisory Board and the general meeting of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”), and (ii) the Board of Directors, Company approve a Sale of the Company in writing, specifying that this Section 3 2 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, each Stockholder Restricted Shareholder and the Company hereby agreesagree:
(ai) if such transaction requires stockholder shareholder approval, with respect to all Converted Shares that such Stockholder the Restricted Shareholder owns or over which such Stockholder the Restricted Shareholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Converted Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(bii) if such transaction is a Stock Share Sale, to sell the same proportion of shares of the share capital stock of the Company beneficially held by such Stockholder the Restricted Shareholder as is being sold by the Selling Investors MYT Holding LLC, a Delaware limited liability company, or its successor (“MYT Holding”) to the Person to whom the Selling Investors propose MYT Holding proposes to sell their Ordinary Shares, and, except as permitted in Section 3.3 Subsection (c) below, on the same terms and conditions as the Selling InvestorsMYT Holding;
(ciii) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors MYT Holding in order to carry out the terms and provision of this Section 32, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(div) not to deposit, and to cause their Affiliates affiliates not to deposit, except as provided in this Agreement, any Converted Shares of the Company owned by such party or Affiliate affiliate in a voting trust or subject any Converted Shares to any arrangement or agreement with respect to the voting of such Converted Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (iv) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(fvi) if the consideration to be paid in exchange for the Converted Shares pursuant to this Section 3 2 includes any securities and due receipt thereof by any Stockholder the Restricted Shareholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder the Restricted Shareholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder the Restricted Shareholder in lieu thereof, against surrender of the Converted Shares which would have otherwise been sold by such Stockholderthe Restricted Shareholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder the Restricted Shareholder would otherwise receive as of the date of the issuance of such securities in exchange for the Converted Shares; and
(gvii) in the event that the Selling InvestorsMYT Holding, in connection with such Sale of the Company, appoint appoints a stockholder shareholder representative (the “Stockholder Shareholder Representative”) with respect to matters affecting MYT Holding and the Stockholders Restricted Shareholder under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder the Shareholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholderthe Restricted Shareholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder the Shareholder Representative in connection with such Stockholder the Shareholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the StockholdersShareholders, and (y) not to assert any claim or commence any suit against the Stockholder Shareholder Representative or any other Stockholder MYT Holding with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Shareholder Representative in connection with its service as the Stockholder Shareholder Representative, absent fraud, bad faith, fraud or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 1 contract
Samples: Phantom Share Award Agreement (MYT Netherlands Parent B.V.)
Actions to be Taken. In the event that (i) the holders of a majority at least 80% of the shares of Common Stock Class A Shares then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class outstanding (the “Selling Investors”), and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 4 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 belowSection 4.3, each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Class A Shares, or any other Shares entitled to vote under applicable law, that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Class A Shares and such other Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company Shares beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, Shares and, except as permitted in Section 3.3 below4.3, on the same terms and conditions as the Selling Investorsother stockholders of the Company;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 34, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, any associated indemnity agreement, or escrow agreement, any associated voting, support, or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Class A Shares of the Company or other such Shares owned by such party Party or Affiliate in a voting trust or subject any Class A Shares or other such Shares to any arrangement or agreement with respect to the voting of such Sharesthereof, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) to refrain from (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); ) asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, including aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 4 includes any securities and due receipt thereof by any Stockholder would require under applicable law (xi) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (yii) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedamended (the “Securities Act”), the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which that would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the such Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (xi) to consent to (i1) the appointment of such Stockholder Representative, (ii2) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii3) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (yii) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, gross negligence or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 1 contract
Samples: Stockholder Agreement
Actions to be Taken. In To the extent permitted pursuant to Section 6.4(b), and subject to Section 6.1, Section 6.4(c), and Section 9.11, in the event that (i) the Company and (ii) the holders of a majority at least seventy-five percent (75%) of the outstanding shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock Stock, voting together as a single class (collectively, the “Selling InvestorsShareholders”), and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 6.4 shall apply to such transaction, then, subject to satisfaction of then each of the conditions set forth in Subsection 3.3 below, each Stockholder Shareholder and the Company hereby agreesagree:
(ai) if such transaction requires stockholder Shareholder approval, with respect to all Shares that such Stockholder Shareholder owns or over which such Stockholder Shareholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Approved Sale of the Company (together with any related amendment or restatement to the Restated Certificate Charter required in order to implement such Sale of the CompanyApproved Sale) and to vote in opposition to any and all other proposals that could be expected to delay or impair the ability of the Company to consummate such Sale of the CompanyApproved Sale;
(bii) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder Shareholder as is being proposed to be sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their SharesShareholders, and, except as permitted in Section 3.3 6.4(b) below, on the same terms and conditions as the Selling InvestorsShareholders;
(ciii) to execute and deliver all related documentation and take such other action in support of the Approved Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Shareholders in order to carry out the terms and provision of this Section 36.4, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(div) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the CompanyApproved Sale;
(e) (iv) to irrevocably waive and refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated therebyApproved Sale;
(fvi) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 6.4 includes any securities and due receipt thereof by any Stockholder Shareholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder Shareholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder Shareholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such StockholderShareholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder Shareholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(gvii) in the event that the Selling InvestorsShareholders, in connection with such Sale of the CompanyApproved Sale, appoint a stockholder Shareholder representative (the “Stockholder Shareholder Representative”) with respect to matters affecting the Stockholders Shareholders under the applicable definitive transaction agreements following consummation of such Sale of the CompanyApproved Sale, (xA) to consent to (iI) the appointment of such Stockholder Shareholder Representative, (iiII) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iiiIII) the payment of such StockholderShareholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Shareholder Representative in connection with such Stockholder Shareholder Representative’s services and duties in connection with such Approved Sale of the Company and its related service as the representative of the StockholdersShareholders, and (yB) not to assert any claim or commence any suit against the Stockholder Shareholder Representative or any other Stockholder Shareholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Shareholder Representative in connection with its service as the Stockholder Shareholder Representative, absent fraud, bad faith, fraud or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 1 contract
Samples: Shareholder Agreement (Bespoke Capital Acquisition Corp)
Actions to be Taken. In the event that (i) the holders of a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class Shares (the “Selling InvestorsStockholders”), and ; (ii) all the members of the Board of Directorsexcept the Mutual Director; (collectively, (i)-(ii) are the “Electing Holders”) approve a Sale of the Company (which approval of the Electing Holders must be in writing), specifying that this Section 3 2 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 Section 2.3 below, each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder Stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Company’ then existing certificate of incorporation (collectively, the “Restated Certificate Certificate”) required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors Stockholders to the Person to whom the Selling Investors Stockholders propose to sell their Shares, and, except as permitted in Section 3.3 2.3 below, on the same terms and conditions as the Selling Investorsother Stockholders of the Company;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Stockholders in order to carry out the terms and provision of this Section 32, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, any associated indemnity agreement, or escrow agreement, any associated voting, support, or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) to refrain from (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors Stockholders or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 2 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investorsStockholders” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedamended (the “Securities Act”), the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling InvestorsStockholders, in connection with such Sale of the Company, appoint a stockholder Stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, gross negligence or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 1 contract
Samples: Voting Agreement (1427702 B.C. LTD)
Actions to be Taken. In the event that a Sale of the Company is approved by each of (i) the Board of Directors, (ii) the holders of at least 75% of the Preferred Stock, voting together as a single class and (iii) the holders of a majority of the shares holders of Common Stock then issuable or issued upon conversion Series A Preferred Stock, voting as a separate class, and each of the shares of Preferred Stock voting together as a single class (the “Selling Investors”), and (ii) the Board of Directors, approve a Sale of the Company foregoing specify in writing, specifying writing that this Section 3 shall apply to such transaction, then, subject to satisfaction of each a Sale of the conditions set forth in Subsection 3.3 belowCompany, then each Stockholder and the Company hereby agreesagrees as follows:
(a) if If such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if If such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors Holders to the Person person to whom the Selling Investors Holders propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling InvestorsHolders;
(c) to To execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Holders in order to carry out the terms and provision of this Section 3, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not Not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to To refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;and
(f) if If the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 1 contract
Samples: Voting Agreement
Actions to be Taken. In the event that (i) the holders of a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”), and (ii) the Board of Directors, approve Holdings intends to engage in a Sale of the Company Company, it may notify each of the other Members in writing, specifying that this Section 3 7.2 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 belowthis Section 7.2 and, each Stockholder such Member and the Company hereby agreesagree:
(ai) if such transaction requires stockholder approvalMembers’ approval or consent, with respect to all Shares Membership Interests that such Stockholder Members owns or over which such Stockholder Members otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares Membership Interests in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(bii) if such transaction is a Stock an Equity Sale, to sell the same proportion of shares of capital stock of the Company Membership Interests beneficially held by such Stockholder Member as is being sold by the Selling Investors Holdings to the Person to whom the Selling Investors propose Holdings proposes to sell their Sharesits Membership Interests, and, except as permitted in this Section 3.3 below7.2(b), on the same terms and conditions as the Selling Investorsother Members of the Company;
(ciii) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order Holdings to carry out the terms and provision of this Section 37.2, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, any associated indemnity agreement, or escrow agreement, any associated voting, support, or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) Encumbrances), and any similar or related documents;
(div) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company Membership Interests owned by such party or Affiliate in a voting trust or subject any Shares Membership Interests to any arrangement or agreement with respect to the voting of such SharesMembership Interests, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;; and
(e) (iv) to refrain from (i) exercising any dissenters’ rights or rights of appraisal under applicable law Law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (xA) challenging the Sale of the Company or this Agreement, or (yB) alleging a breach of any fiduciary duty of the Selling Investors Holdings or any affiliate Affiliate or associate thereof or the Board (including, without limitation, including aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 1 contract
Actions to be Taken. In the event that (i) the holders of shares of Preferred Stock representing a majority of the shares of Common Stock then issuable or issued upon conversion voting power of the outstanding shares of Preferred Stock voting together as a single class (the “Selling Investors”), ) and (ii) the Board of Directors(collectively, the “Electing Holders”) approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agrees:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section Subsection 3.3 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;and
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 1 contract
Samples: Series D Preferred Stock Purchase Agreement (Seres Therapeutics, Inc.)
Actions to be Taken. In To the extent permitted pursuant to Section 6.4(b), and subject to Section 6.1, Section 6.4(c), and Section 9.11, in the event that (i) the Company and (ii) the holders of a majority at least seventy-five percent (75%) of the outstanding shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock Stock, voting together as a single class (collectively, the “Selling InvestorsShareholders”), and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 6.4 shall apply to such transaction, then, subject to satisfaction of then each of the conditions set forth in Subsection 3.3 below, each Stockholder Shareholder and the Company hereby agreesagree:
(ai) if such transaction requires stockholder Shareholder approval, with respect to all Shares that such Stockholder Shareholder owns or over which such Stockholder Shareholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Approved Sale of the Company (together with any related amendment or restatement to the Restated Certificate Charter required in order to implement such Sale of the CompanyApproved Sale) and to vote in opposition to any and all other proposals that could be expected to delay or impair the ability of the Company to consummate such Sale of the CompanyApproved Sale;
(bii) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder Shareholder as is being proposed to be sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their SharesShareholders, and, except as permitted in Section 3.3 6.4(b) below, on the same terms and conditions as the Selling InvestorsShareholders;
(ciii) to execute and deliver all related documentation and take such other action in support of the Approved Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Shareholders in order to carry out the terms and provision of this Section 36.4, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(div) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the CompanyApproved Sale;
(e) (iv) to irrevocably waive and refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated therebyApproved Sale;
(fvi) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 6.4 includes any securities and due receipt thereof by any Stockholder Shareholder would require .require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder Shareholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder Shareholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such StockholderShareholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder Shareholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(gvii) in the event that the Selling InvestorsShareholders, in connection with such Sale of the CompanyApproved Sale, appoint a stockholder Shareholder representative (the “Stockholder Shareholder Representative”) with respect to matters affecting the Stockholders Shareholders under the applicable definitive transaction agreements following consummation of such Sale of the CompanyApproved Sale, (xA) to consent to (iI) the appointment of such Stockholder Shareholder Representative, (iiII) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or of similar obligations, and (iiiIII) the payment of such StockholderShareholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Shareholder Representative in connection with such Stockholder Shareholder Representative’s services and duties in connection with such Approved Sale of the Company and its related service as the representative of the StockholdersShareholders, and (yB) not to assert any claim or commence any suit against the Stockholder Shareholder Representative or any other Stockholder Shareholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, Shareholder Representative in connection with its service as the Stockholder Shareholder Representative, absent fraud, bad faith, fraud or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 1 contract
Samples: Stock Purchase Agreement (Bespoke Capital Acquisition Corp)
Actions to be Taken. In the event that (i) the holders of a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”), and (ii) the Board of Directors, approve Provider is permitted to engage in a Sale of the Company in writing, specifying that this pursuant to Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below8.4(iii) hereof, each Stockholder and the Company Member hereby agrees:
(a) A. if such transaction requires stockholder Member approval, with respect to all Shares Units that such Stockholder Member owns or over which such Stockholder Member otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares Units in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate this Agreement required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) B. if such transaction is a Stock Unit Sale, to sell the same proportion of shares of capital stock of the Company Units beneficially held by such Stockholder INVO as is are being sold by the Selling Investors Provider to the Person to whom the Selling Investors propose it proposes to sell their Sharesits Units, and, except as permitted in Section 3.3 below, 8.5(iii) on the same terms and conditions as the Selling InvestorsProvider;
(c) C. to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Provider in order to carry out the terms and provision provisions of this Section 38.5(ii), including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental Governmental Authority filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any other similar or related documentsdocuments necessary to consummate such Sale of the Company;
(d) D. not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company Units owned by such party or Affiliate in a voting trust or subject any Shares Units to any arrangement or agreement with respect to the voting of such SharesUnits, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) (i) E. to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law Applicable Law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;and
(f) F. if the consideration to be paid in exchange for the Shares Units pursuant to this Section 3 8.5 includes any securities and due receipt thereof by any Stockholder Member would require under applicable law Applicable Law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder Member of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder Member in lieu thereof, against surrender of the Shares Units which would have otherwise been sold by such StockholderMember, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder Member would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder RepresentativeUnits.
Appears in 1 contract
Actions to be Taken. In the event that (i) the holders of a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”), and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, each Stockholder and the Company hereby agrees:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, ,and, ,except as permitted in Section 3.3 below, on the same terms and conditions as the Selling Investors;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;; Table of Contents
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 1 contract
Samples: Contribution and Exchange Agreement (Morningside Venture Investments LTD)
Actions to be Taken. In the event that either (i) the holders of at least a majority of the then issued and outstanding shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (on an as-converted to common stock basis) (the “Selling Investors”), and or (ii) the Board of DirectorsBoard, approve entering into a Sale of the Company Change in Control in writing, specifying and such approval specifies that this Section 3 8 shall apply to such transactionChange in Control, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, each Stockholder and the Company hereby agrees:
(ai) if such transaction requires stockholder shareholder approval, then with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting powershares of Stock owned by the Grantee, the Grantee hereby agrees to vote (in person, by proxy or by action by written consent, as applicable) all Shares such shares of Stock in favor of, and adopt, such Sale of the Company Change in Control (together with any related amendment or restatement to the Restated Certificate certificate of incorporation or bylaws required in order to implement such Sale of the CompanyChange in Control) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the CompanyChange in Control;
(bii) if such transaction is a Stock Salestock sale, the Grantee hereby agrees to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder Stock as is being sold by the Selling Investors to the Person same acquirer to whom the Selling Investors propose to sell their Sharesshares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling Investors;
(ciii) the Grantee hereby agrees to execute and deliver all related documentation and take such other action in support of the Sale of the Company Change in Control as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision provisions of this Section 38, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(div) the Grantee hereby agrees not to deposit, and to cause their Affiliates the Grantee's affiliates not to deposit, except as provided in this Award Agreement, any Shares shares of Stock of the Company owned by such party or Affiliate affiliate in a voting trust or subject any Shares shares of Stock of the Company to any arrangement or agreement with respect to the voting of such Sharesshares of Stock, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the CompanyChange in Control;
(ev) (i) the Grantee hereby agrees to refrain from exercising any dissenters’ ' rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii)Change in Control; asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;and
(fvi) if the consideration to be paid in exchange for the Shares shares of Stock pursuant to this Section 3 8 includes any securities and due receipt thereof by any Stockholder would require under applicable law securities, then the Grantee hereby agrees to (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities, or (y) the provision to any Stockholder the Grantee of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933Act, as amended, and the Company may cause to be paid to any such Stockholder the Grantee in lieu thereof, against surrender of the Shares shares which would have otherwise been sold by such Stockholderthe Grantee, an amount in cash equal to the fair market value (as determined in good faith by the Board) of the securities which such Stockholder the Grantee would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativeshares.
Appears in 1 contract
Samples: Restricted Stock Unit Award Agreement (Spectral AI, Inc.)
Actions to be Taken. In the event that (i) the holders of a majority both of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”)Major Stockholders, and (ii) the Board of Directorsacting together, approve a Sale of the Company (which approval must be in writing), specifying that this Section 3 6 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 belowSection 6.2, each Stockholder hereby agrees with the Major Stockholders and the Company hereby agreesCompany:
(a) if such transaction requires stockholder approval, with respect to all General Voting Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all General Voting Shares in favor of, and adoptapprove, such Sale of the Company (together with any and the related amendment or restatement definitive agreement(s) pursuant to which the Restated Certificate required in order to implement such Sale of the Company) Company is to be consummated and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company Shares beneficially held by such Stockholder (which in the case of OTPP, shall include the Shares held by the 30% Rule Designee) as is being sold by the Selling Investors each Major Stockholder to the Person to whom the Selling Investors Major Stockholders propose to sell their Shares, and, except as permitted in Section 3.3 6.2 below, on the same terms and conditions as the Selling Investorsother stockholders of the Company;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Major Stockholders in order to carry out the terms and provision of this Section 36, including including, without limitation limitation, (i) executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity business combination agreement, any associated indemnity or escrow agreement, any reasonably customary release agreement in the capacity of a securityholder, termination of investment-related documents, accredited investor forms, documents evidencing the removal of Board designees, powers of attorney, any associated voting, support, or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer Transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents, and (ii) providing any information reasonably necessary for any public filings with the SEC in connection with the Sale of the Company;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party Stockholder or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) to refrain from (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, Company or (ii); ) asserting any claim or commencing commencing, joining or participating in any way (including, without limitation, as a member of a class in any action, suit (xor proceeding) challenging the Sale of the Company, this Agreement, or consummation of the transactions contemplated in connection with the Sale of the Company or this Agreement, including (x) challenging the validity of, or seeking to enjoin the operation of, or the definitive agreement(s) with respect to, such Sale of the Company or (y) alleging a breach of any fiduciary duty of the Selling Investors Major Stockholders or any affiliate Affiliate or associate thereof thereof, Directors or the Board acquirer(s) (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation Sale of the Company or entry into the any action taken thereby with respect to such Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(gf) in the event that the Selling InvestorsMajor Stockholders, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligationsobligations to the Stockholder Representative, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, gross negligence or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 1 contract
Actions to be Taken. In the event that (i) the holders of a majority of the shares of Common Stock then issued or issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”), ; and (ii) the Board of Directors(collectively, (i)-(ii) are the “Electing Holders”) approve a Sale of the Company (which approval of the Electing Holders must be in writing), specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection Section 3.3 below, each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate Articles and the Series A Convertible Preferred Designation required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling Investorsother stockholders of the Company;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, any associated indemnity agreement, or escrow agreement, any associated voting, support, or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) to refrain from (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedamended (the “Securities Act”), the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, gross negligence or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 1 contract
Samples: Voting Agreement (Adamas One Corp.)
Actions to be Taken. In the event that (a) holders representing at least fifty percent (50%) of the Common Shares (i) the holders of a majority of the shares of Common Stock then issued and outstanding and (ii) issuable or issued upon conversion of the shares of Preferred Stock Series A Preference Shares, voting together as a single class, and (b) holders representing at least fifty percent (50%) of the Series A Preference Shares then issued and outstanding voting as a separate class (collectively, the “Selling InvestorsHolders”), and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 4 shall apply to such transaction, then, subject to satisfaction of then each of the conditions set forth in Subsection 3.3 below, each Stockholder Holder and the Company hereby agrees:
(a) if such transaction requires stockholder shareholder approval, with respect to all Capital Shares that such Stockholder Holder owns or over which such Stockholder Holder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate Articles required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Share Sale, to sell the same proportion of shares of capital stock Capital Shares of the Company beneficially held by such Stockholder Holder as is being sold by the Selling Investors Holders to the Person to whom the Selling Investors Holders propose to sell their Capital Shares, and, except as permitted in Section 3.3 Subsection 4.3 below, on the same terms and conditions as the Selling Investors;
Holders; (c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Holders in order to carry out the terms and provision of this Section 34, including without limitation executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror in connection with the Sale of the Company;
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amended, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 1 contract
Actions to be Taken. In the event that (i) the holders of a majority of the shares of Common Stock then issuable or issued upon conversion of the shares of Preferred Stock voting together as a single class (the “Selling Investors”), and (ii) the Board of Directors, [***] approve a Sale of the Company in writingCompany, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, then each Stockholder and the Company hereby agrees:
(a) if such transaction requires stockholder approval, agrees with respect to all Shares that such Stockholder owns which it own(s) or over which such Stockholder it otherwise exercises voting poweror dispositive authority:
(i) in the event such transaction is to be brought to a vote at a stockholder meeting, after receiving proper notice of any meeting of stockholders of the Company, to vote on the approval of a Sale of the Company, to be present, in person or by proxy, as a holder of shares of voting securities, at all such meetings and to be counted for the purposes of determining the presence of a quorum at such meetings;
(ii) to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, of such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(biii) if to waive all dissenters’ rights and rights of appraisal under applicable law at any time with respect to such transaction is a Stock Sale, to sell the same proportion of shares of capital stock Sale of the Company beneficially held by (in each such Stockholder as is being sold by case, whether before or after the Selling Investors to consummation of the Person to whom Sale of the Selling Investors propose to sell their Shares, and, except as permitted in Section 3.3 below, on the same terms and conditions as the Selling InvestorsCompany);
(civ) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors Requisite Parties (in order to carry out each such case, whether before or after the terms and provision consummation of this Section 3, including without limitation executing and delivering instruments the Sale of conveyance and transfer, and any purchase agreement, merger agreement, indemnity agreement, escrow agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) and any similar or related documentsthe Company);
(dv) if the Sale of the Company is structured as a Stock Sale, to sell the same proportion of his, her or its Shares as is being sold by the Requisite Parties;
(vi) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party Stockholder or Affiliate in a voting trust or subject any such Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;; and
(e) (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(fvii) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 4 includes any securities and due receipt thereof by any Stockholder would require under applicable law (xi) the registration or qualification of such securities or of any person Person as a broker or dealer or agent with respect to such securities or (yii) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the BoardCompany) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representative.
Appears in 1 contract
Actions to be Taken. In the event that (i) the holders of majority of the outstanding shares of Preferred Stock, including a majority of the outstanding shares of Series A Preferred Stock (the “Selling Investors”); and (ii) the holders of a majority of the then outstanding shares of Common Stock then (other than those issued or issuable or issued upon conversion of the shares of Preferred Stock Stock) held by Key Holders who are then providing services to the Company as officers, employees or consultants voting together as a single separate class (collectively, (i)-(ii) are the “Selling InvestorsElecting Holders”), and (ii) the Board of Directors, approve a Sale of the Company in writing, specifying that this Section 3 shall apply to such transaction, then, subject to satisfaction of each of the conditions set forth in Subsection 3.3 below, each Stockholder and the Company hereby agreesagree:
(a) if such transaction requires stockholder approval, with respect to all Shares that such Stockholder owns or over which such Stockholder otherwise exercises voting power, to vote (in person, by proxy or by action by written consent, as applicable) all Shares in favor of, and adopt, such Sale of the Company (together with any related amendment or restatement to the Restated Certificate required in order to implement such Sale of the Company) and to vote in opposition to any and all other proposals that could reasonably be expected to delay or impair the ability of the Company to consummate such Sale of the Company;
(b) if such transaction is a Stock Sale, to sell the same proportion of shares of capital stock of the Company beneficially held by such Stockholder as is being sold by the Selling Investors to the Person to whom the Selling Investors propose to sell their Shares, and, except as permitted in Section Subsection 3.3 below, on the same terms and conditions as the Selling Investorsother stockholders of the Company;
(c) to execute and deliver all related documentation and take such other action in support of the Sale of the Company as shall reasonably be requested by the Company or the Selling Investors in order to carry out the terms and provision of this Section 3, including including, without limitation limitation, executing and delivering instruments of conveyance and transfer, and any purchase agreement, merger agreement, any associated indemnity agreement, or escrow agreement, any associated voting, support, or joinder agreement, consent, waiver, governmental filing, share certificates duly endorsed for transfer (free and clear of impermissible liens, claims and encumbrances) ), and any similar or related documents;
(d) not to deposit, and to cause their Affiliates not to deposit, except as provided in this Agreement, any Shares of the Company owned by such party or Affiliate in a voting trust or subject any Shares to any arrangement or agreement with respect to the voting of such Shares, unless specifically requested to do so by the acquiror acquirer in connection with the Sale of the Company;
(e) to refrain from (i) to refrain from exercising any dissenters’ rights or rights of appraisal under applicable law at any time with respect to such Sale of the Company, or (ii); asserting any claim or commencing any suit (x) challenging the Sale of the Company or this Agreement, or (y) alleging a breach of any fiduciary duty of the Selling Investors or any affiliate or associate thereof or the Board (including, without limitation, aiding and abetting breach of fiduciary duty) in connection with the evaluation, negotiation or entry into the Sale of the Company, or the consummation of the transactions contemplated thereby;
(f) if the consideration to be paid in exchange for the Shares pursuant to this Section 3 includes any securities and due receipt thereof by any Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities securities; or (y) the provision to any Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act of 1933, as amendedAct, the Company may cause to be paid to any such Stockholder in lieu thereof, against surrender of the Shares which would have otherwise been sold by such Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the Shares; and
(g) in the event that the Selling Investors, in connection with such Sale of the Company, appoint a stockholder representative (the “Stockholder Representative”) with respect to matters affecting the Stockholders under the applicable definitive transaction agreements following consummation of such Sale of the Company, (x) to consent to (i) the appointment of such Stockholder Representative, (ii) the establishment of any applicable escrow, expense or similar fund in connection with any indemnification or similar obligations, and (iii) the payment of such Stockholder’s pro rata portion (from the applicable escrow or expense fund or otherwise) of any and all reasonable fees and expenses to such Stockholder Representative in connection with such Stockholder Representative’s services and duties in connection with such Sale of the Company and its related service as the representative of the Stockholders, and (y) not to assert any claim or commence any suit against the Stockholder Representative or any other Stockholder with respect to any action or inaction taken or failed to be taken by the Stockholder Representative, within the scope of the Stockholder Representative’s authority, in connection with its service as the Stockholder Representative, absent fraud, bad faith, gross negligence or willful misconduct and (z) execute and deliver any power-of-attorney or other documentation reasonably requested by the Stockholder Representativemisconduct.
Appears in 1 contract
Samples: Voting Agreement (6d Bytes Inc.)
