Common use of Agreements of Holder Clause in Contracts

Agreements of Holder. (a) Holder hereby acknowledges and agrees that he, she or it is a “Company Member” and, if applicable, an “Indemnifying Party” under the Merger Agreement and agrees to be bound by the provisions of the Merger Agreement applicable to the Company Members, including (A) the amount, form and allocation of Merger Consideration payable in accordance with Article 2 of the Merger Agreement (including the provisions therein relating to the Holdback Amount), (B) the obligation to indemnify, reimburse and compensate the Parent Indemnified Parties in accordance with Article 10 of the Merger Agreement, and (C) the restrictions on Transfer and other provisions relating to the Parent Shares set forth in Article 7 of the Merger Agreement. (b) Holder acknowledges and agrees that (i) Parent shall retain and hold back the Holdback Amount from the Company Members pursuant to and subject to the terms and conditions of the Merger Agreement; and (ii) Holder shall be entitled to a portion of the Holdback Amount only if, as and when such amount becomes payable to Holder in accordance with the provisions of the Merger Agreement. (c) As security for Holder’s faithful performance of this Agreement and the Merger Agreement, Holder has executed the Assignment Separate from Certificate in the form attached hereto as Exhibit B, in blank, to the Secretary of Parent, or the Secretary’s designee, to hold such Assignment Separate from Certificate in escrow and to take all such actions and to effectuate all such transfers, forfeitures and/or releases in respect of the Holdback Shares withheld from Holder pursuant to the terms of the Merger Agreement (the “Holder Holdback Shares”) as are in accordance with the terms of this Agreement and the Merger Agreement. Holder hereby acknowledges that the Secretary of Parent, or the Secretary’s designee, is so appointed as the escrow holder with the foregoing authorities as a material inducement to consummate the Merger and that said appointment is coupled with an interest and is accordingly irrevocable. Holder agrees that said escrow holder shall not be liable to any party hereof (or to any other party) except for such escrow holder’s gross negligence or willful misconduct. The escrow holder may rely upon any letter, notice or other document executed by any signature purported to be genuine and may resign at any time. Holder agrees that if the Secretary of Parent, or the Secretary’s designee, resigns as escrow holder for any or no reason, then Parent shall have the power to appoint a successor to serve as escrow holder pursuant to the terms of this Agreement. If at any time any further action is necessary or desirable to carry out the purposes of this Agreement or the Merger Agreement, then Holder hereby agrees to execute and deliver any documents or other instruments and to take such action as is reasonably necessary to effect such actions in accordance with the provisions of this Agreement or the Merger Agreement. Holder will be shown as the registered owner of the Holder Holdback Shares on the books and records of Parent and shall have all rights with respect to the Holder Holdback Shares during the period of time in which such shares have not been forfeited (including the right to vote such shares and the right to receive on a current basis any cash dividends or other distributions made with respect to the Holder Holdback Shares, other than dividends or distributions of shares of Parent Common Stock, which shall be retained by Parent for the benefit of Holder and included as part of the Holder Holdback Shares), except the right of possession thereof. (d) Unless otherwise consented to in writing by Parent, Holder shall not (i) Transfer any Holder Securities, (ii) grant any option, warrant, call or any other right to purchase or otherwise acquire any Holder Securities or any interest therein, or (iii) enter into any Contract with respect to any of the matters contemplated by clauses (i) or (ii). (e) Any Company Interests or other securities of the Company that Holder purchases or with respect to which Holder otherwise acquires beneficial ownership after the Agreement Date and prior to the Effective Time, including by reason of (i) exercise, conversion or exchange of any securities of the Company or (ii) stock split, stock dividend, reverse stock split, reclassification, recapitalization or other similar transaction, shall be subject to the terms and conditions of this Agreement to the same extent as if such securities were included on the signature page hereto. (f) Holder hereby irrevocably and unconditionally waives and agrees not to assert any appraisal or dissenter’s rights (including any notice requirements related thereto) under applicable Law relating to the Merger or any related transaction that Holder or any other Person may have by virtue of, or with respect to, the Holder Securities. (g) Holder shall not knowingly take any action that (i) would make any representation or warranty contained herein untrue or incorrect or (ii) would reasonably be expected to have the effect of impairing the ability of Holder to perform its, his, or her obligations under any Holder Agreement or preventing or materially delaying the consummation of any of the transactions contemplated by the Merger Agreement, any Holder Agreement, or the Written Consent; provided that nothing contained in this Section 3(g) shall be construed to prohibit Holder in his or her capacity as a manager of the Company (if applicable) from exercising his or her fiduciary duties to the Company Members under applicable law. (h) Holder acknowledges that he, she, or it has received a copy of the Merger Agreement. Until the Effective Time, Holder (in its, his or her capacity as such) agrees to the same restrictions applicable to the Company pursuant to Section 5.7 (No Other Negotiations) of the Merger Agreement. In the event Holder shall receive or become aware of any Acquisition Proposal subsequent to the date hereof, Holder shall promptly inform Parent as to any such matter and the details thereof to the maximum extent possible without violating its, his, or her fiduciary duties or any confidentiality obligations to which the Holder or the Company is bound as of the date hereof. (i) Holder acknowledges and understands that the representations, warranties and covenants by Holder set forth herein and, if applicable, the other Holder Agreements and any covenants set forth in the Merger Agreement applicable to the Company Members and, if applicable, Indemnifying Parties will be relied upon by Parent, Merger Sub, the Company and their respective Affiliates and counsel, and that substantial Liabilities may be incurred by such Persons if Holder’s representations, warranties, or covenants set forth herein and the other Holder Agreements and any covenants set forth in the Merger Agreement applicable to Holder are inaccurate or are breached.

Agreements of Holder. (a) As a condition to the Company’s obligation under this Agreement to cause Registrable Securities to be included in a Registration Statement, the Holder hereby acknowledges shall timely provide the Company with all of the information required to be provided in the Registration Statement with respect to the Holder pursuant to Items 507 and agrees that he, she 508 (or it is a “Company Member” and, if applicable, an “Indemnifying Party” any successor Items) of Regulation S-K under the Merger Agreement Securities Act and agrees such other information with respect to the Holder as shall be required to be bound by the provisions of the Merger Agreement applicable included in such Registration Statement pursuant to the Company Members, including (A) Securities Act or the amount, form rules and allocation of Merger Consideration payable in accordance with Article 2 of the Merger Agreement (including the provisions therein relating to the Holdback Amount), (B) the obligation to indemnify, reimburse and compensate the Parent Indemnified Parties in accordance with Article 10 of the Merger Agreement, and (C) the restrictions on Transfer and other provisions relating to the Parent Shares set forth in Article 7 of the Merger Agreementregulations thereunder. (b) The Holder acknowledges shall comply with the prospectus delivery requirements of the Securities Act in connection with the offer and agrees that (i) Parent shall retain and hold back sale of Registrable Securities made by the Holdback Amount Holder pursuant to any Registration Statement. Upon receipt of any notice from the Company Members of the occurrence of any event of the kind described in Section 2.7(e) or Section 2.7(k), the Holder shall forthwith discontinue the disposition of Registrable Securities pursuant to and subject the Prospectus or Registration Statement covering such Registrable Securities until the Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 2.7(e) or the withdrawal of any stop order or other order referred to in Section 2.7(k), and, if so directed by the Company, shall deliver to the terms and conditions Company all copies, other than permanent file copies then in the Holder’s possession, of the Merger Agreement; and (ii) Holder shall be entitled to a portion Prospectus covering such Registrable Securities at the time of the Holdback Amount only if, as and when receipt of such amount becomes payable to Holder in accordance with the provisions of the Merger Agreementnotice. (c) As security for Holder’s faithful performance of this Agreement and To the Merger Agreementextent required by the Securities Act or rules or regulations thereunder, as reasonably determined by the Company, the Holder has executed the Assignment Separate from Certificate shall consent to disclosure in the form attached hereto as Exhibit B, in blank, any Registration Statement to the Secretary of Parent, effect that the Holder is or the Secretary’s designee, may be deemed to hold such Assignment Separate from Certificate in escrow and to take all such actions and to effectuate all such transfers, forfeitures and/or releases in respect be an underwriter for purposes of the Holdback Shares withheld from Holder pursuant to the terms of the Merger Agreement (the “Holder Holdback Shares”) as are Securities Act in accordance connection with the terms offering of this Agreement and Registrable Securities by the Merger Agreement. Holder hereby acknowledges that the Secretary of Parent, or the Secretary’s designee, is so appointed as the escrow holder with the foregoing authorities as a material inducement to consummate the Merger and that said appointment is coupled with an interest and is accordingly irrevocable. Holder agrees that said escrow holder shall not be liable to any party hereof (or to any other party) except for such escrow holder’s gross negligence or willful misconduct. The escrow holder may rely upon any letter, notice or other document executed by any signature purported to be genuine and may resign at any time. Holder agrees that if the Secretary of Parent, or the Secretary’s designee, resigns as escrow holder for any or no reason, then Parent shall have the power to appoint a successor to serve as escrow holder pursuant to the terms of this Agreement. If at any time any further action is necessary or desirable to carry out the purposes of this Agreement or the Merger Agreement, then Holder hereby agrees to execute and deliver any documents or other instruments and to take such action as is reasonably necessary to effect such actions in accordance with the provisions of this Agreement or the Merger Agreement. Holder will be shown as the registered owner of the Holder Holdback Shares on the books and records of Parent and shall have all rights with respect to the Holder Holdback Shares during the period of time in which such shares have not been forfeited (including the right to vote such shares and the right to receive on a current basis any cash dividends or other distributions made with respect to the Holder Holdback Shares, other than dividends or distributions of shares of Parent Common Stock, which shall be retained by Parent for the benefit of Holder and included as part of the Holder Holdback Shares), except the right of possession thereofHolder. (d) Unless otherwise consented to in writing by Parent, The Holder shall not (i) Transfer comply with Regulation M under the Exchange Act in connection with the offer and sale of Registrable Securities made by the Holder pursuant to any Holder Securities, Registration Statement and (ii) grant any option, warrant, call or any other right to purchase or otherwise acquire any Holder provide the Company with such information about the Holder’s offer and sale of Registrable Securities or any interest therein, or (iii) enter into any Contract with respect pursuant to any of the matters contemplated by clauses (i) or (ii). (e) Any Company Interests or other securities of Registration Statement as the Company that Holder purchases or with respect shall reasonably request to which Holder otherwise acquires beneficial ownership after the Agreement Date and prior to the Effective Time, including by reason of (i) exercise, conversion or exchange of any securities of the Company or (ii) stock split, stock dividend, reverse stock split, reclassification, recapitalization or other similar transaction, shall be subject to the terms and conditions of this Agreement to the same extent as if such securities were included on the signature page hereto. (f) Holder hereby irrevocably and unconditionally waives and agrees not to assert any appraisal or dissenter’s rights (including any notice requirements related thereto) under applicable Law relating to the Merger or any related transaction that Holder or any other Person may have by virtue of, or with respect to, the Holder Securities. (g) Holder shall not knowingly take any action that (i) would make any representation or warranty contained herein untrue or incorrect or (ii) would reasonably be expected to have the effect of impairing the ability of Holder to perform its, his, or her obligations under any Holder Agreement or preventing or materially delaying the consummation of any of the transactions contemplated by the Merger Agreement, any Holder Agreement, or the Written Consent; provided that nothing contained in this Section 3(g) shall be construed to prohibit Holder in his or her capacity as a manager of the Company (if applicable) from exercising his or her fiduciary duties to the Company Members under applicable law. (h) Holder acknowledges that he, she, or it has received a copy of the Merger Agreement. Until the Effective Time, Holder (in its, his or her capacity as such) agrees to the same restrictions applicable to the Company pursuant to Section 5.7 (No Other Negotiations) of the Merger Agreement. In the event Holder shall receive or become aware of any Acquisition Proposal subsequent to the date hereof, Holder shall promptly inform Parent as to any such matter and the details thereof to the maximum extent possible without violating its, his, or her fiduciary duties or any confidentiality obligations to which the Holder or the Company is bound as of the date hereof. (i) Holder acknowledges and understands that the representations, warranties and covenants by Holder set forth herein and, if applicable, the other Holder Agreements and any covenants set forth in the Merger Agreement applicable to the Company Members and, if applicable, Indemnifying Parties will be relied upon by Parent, Merger Sub, enable the Company and their respective its Affiliates to comply with Regulation M under the Exchange Act in connection with any such offer and counsel, and that substantial Liabilities may be incurred by such Persons if Holder’s representations, warranties, or covenants set forth herein and the other Holder Agreements and any covenants set forth in the Merger Agreement applicable to Holder are inaccurate or are breachedsale.

Agreements of Holder. (a) Holder hereby acknowledges and agrees that he, she or it is a “Company Member” and, if applicable, an “Indemnifying PartyStockholder” under the Merger Agreement and agrees to be bound by the provisions of the Merger Agreement expressly applicable to the Company MembersStockholders, including without limitation (Ai) the amount, form and allocation of Merger Consideration payable deliverable in accordance with Article 2 of the Merger Agreement and (including the provisions therein relating to the Holdback Amount), (Bii) the obligation to indemnify, reimburse stock transfer restrictions and compensate the Parent Indemnified Parties in accordance with Article 10 of the Merger Agreement, and (C) the restrictions on Transfer and other provisions relating to the Parent Shares stock registration obligations set forth in Article 7 6 of the Merger Agreement. (b) If Holder acknowledges holds Preferred Stock, Holder hereby irrevocably waives any and agrees that (i) Parent shall retain and hold back the Holdback Amount from the Company Members all rights of Holder with respect to any rights of redemption pursuant to the Charter Documents and subject Holder agrees not to exercise any such rights or deliver (or participate in the terms and conditions of delivery of) any Redemption Notice (as defined in the Merger Agreement; and (iiCharter Documents) Holder shall be entitled to a portion of following the Holdback Amount only if, as and when such amount becomes payable to Holder in accordance with the provisions of the Merger AgreementAgreement Date. (c) As security for Holder’s faithful performance From the date hereof until the earlier of this Agreement and the Merger Agreement, Holder has executed the Assignment Separate from Certificate in the form attached hereto as Exhibit B, in blank, to the Secretary of Parent, Effective Time or the Secretary’s designee, to hold such Assignment Separate from Certificate in escrow and to take all such actions and to effectuate all such transfers, forfeitures and/or releases in respect of the Holdback Shares withheld from Holder pursuant to the terms of the Merger Agreement (the “Holder Holdback Shares”) as are in accordance with the terms of this Agreement and the Merger Agreement. Holder hereby acknowledges that the Secretary of Parent, or the Secretary’s designee, is so appointed as the escrow holder with the foregoing authorities as a material inducement to consummate the Merger and that said appointment is coupled with an interest and is accordingly irrevocable. Holder agrees that said escrow holder shall not be liable to any party hereof (or to any other party) except for such escrow holder’s gross negligence or willful misconduct. The escrow holder may rely upon any letter, notice or other document executed by any signature purported to be genuine and may resign at any time. Holder agrees that if the Secretary of Parent, or the Secretary’s designee, resigns as escrow holder for any or no reason, then Parent shall have the power to appoint a successor to serve as escrow holder pursuant to the terms termination of this Agreement. If at any time any further action is necessary or desirable to carry out the purposes of this Agreement or the Merger Agreement, then Holder hereby agrees to execute and deliver any documents or other instruments and to take such action as is reasonably necessary to effect such actions in accordance with the provisions of this Agreement or the Merger Agreement. Holder will be shown as the registered owner of the Holder Holdback Shares on the books and records of Parent and shall have all rights with respect to the Holder Holdback Shares during the period of time in which such shares have not been forfeited (including the right to vote such shares and the right to receive on a current basis any cash dividends or other distributions made with respect to the Holder Holdback Shares, other than dividends or distributions of shares of Parent Common Stock, which shall be retained by Parent for the benefit of Holder and included as part of the Holder Holdback Shares), except the right of possession thereof. (d) Unless unless otherwise consented to in writing by ParentParent or in connection with a Permitted Transfer, Holder shall not (i) Transfer any Holder Securities, (ii) grant any option, warrant, call or any other right to purchase or otherwise acquire any Holder Securities or any interest therein, or (iii) enter into any Contract with respect to any of the matters contemplated by clauses (i) or (ii). The foregoing restrictions shall not prohibit (1) any Transfers of Holder Securities by Holder to immediate family members of Holder or estate planning trusts established for the benefit of Holder or any immediate family members of Holder, or (2) any Transfers of Holder Securities to any wholly owned subsidiary, parallel fund, Affiliate, partner, limited partner, stockholder or member, as applicable, of Holder (each, a “Permitted Transfer”); provided, in each case, (A) the transferee is an “accredited investor” within the meaning of Rule 501 of Regulation D promulgated under the Securities Act and (B) the transferee and Holder expressly agree to be bound by the provisions of this Agreement (x) with respect to such transferred Holder Securities and (y) as if such transferee were a Holder, in a written instrument reasonably acceptable to Parent and the Company, and Holder provides written notice of such Permitted Transfer no later than three days prior to the consummation of such Permitted Transfer. (ed) Any Company Interests Capital Stock or other equity securities of the Company that Holder purchases or with respect to which Holder otherwise acquires beneficial ownership after the Agreement Date and prior to the Effective Time, including by reason of (i) exercise, conversion or exchange of any securities of the Company or (ii) stock split, stock dividend, reverse stock split, reclassification, recapitalization or other similar transaction, shall be subject to the terms and conditions of this Agreement to the same extent as if such securities were included on the signature page hereto. (fe) Holder hereby irrevocably and unconditionally waives and agrees not to assert any appraisal or dissenter’s rights (including any notice requirements related thereto) or similar rights under applicable Law relating with respect to the Merger or any related transaction that Holder or any other Person may have by virtue of, or with respect to, the Holder SecuritiesMerger. (gf) Holder shall not knowingly take any action with the intent that such action would (i) would make any representation or warranty contained herein untrue or incorrect or (ii) would reasonably be expected to have the effect of impairing the ability of Holder to perform its, his, or her obligations under this Agreement or any other Holder Agreement or preventing or materially delaying the consummation of any of the transactions contemplated by the Merger Agreement, any Holder Agreement, or the Written Consent; provided . (g) Holder agrees that nothing contained he, she or it shall not bring, commence, institute, maintain, prosecute, participate in or voluntarily aid any legal proceeding, in law or in equity, in any court or before any Governmental Authority, which (i) challenges the validity of or seeks to enjoin the operation of any provision of the Written Consent, the Merger Agreement, the Company Ancillary Agreements, this Section 3(gAgreement or, if applicable, any other Holder Agreement or the consummation of the Merger and the other transactions and matters contemplated by the Written Consent or any such other agreements or (ii) shall be construed to prohibit alleges that any actions taken (or omitted) in connection with or in furtherance of the Merger or any of the other transactions contemplated by the Written Consent, the Merger Agreement, the Company Ancillary Agreements, this Agreement or, if applicable, any other Holder in his or her capacity as a manager Agreement breaches any fiduciary duty, whether of the board of directors of the Company (if applicable) from exercising his or her fiduciary duties to any member thereof, of any officer of the Company Members under applicable lawor of any holder of Company Capital Stock or other securities of the Company. (h) Holder acknowledges that he, she, or it has received a copy of the Merger Agreement. Until the Effective Time, Holder (in its, his or her capacity as such) agrees to the same restrictions applicable to the Company pursuant to Section 5.7 (No Other Negotiations) of the Merger Agreement. In the event Holder shall receive or become aware of any Acquisition Proposal subsequent to the date hereof, Holder shall promptly inform Parent as to any such matter and the details thereof to the maximum extent possible without violating its, his, or her fiduciary duties or any confidentiality obligations to which the Holder or the Company is bound as of the date hereof. (i) Holder acknowledges and understands that the representations, warranties and covenants by Holder set forth herein and, if applicable, the other Holder Agreements and any covenants obligations set forth in the Merger Agreement applicable to the Company Members and, if applicable, Indemnifying Parties will Stockholders shall be relied upon by Parent, Merger Sub, the Company Company, the Surviving Entity and their respective Affiliates and counsel, and that substantial Liabilities may be incurred by such Persons if Holder’s representations, warranties, or covenants set forth herein and the other Holder Agreements and any covenants obligations set forth in the Merger Agreement applicable to Holder are inaccurate inaccurate, are breached or are breachednot complied with. Holder shall promptly execute and deliver to the Company the Written Consent. Holder hereby agrees to vote or exercise its right to consent with respect to all of the capital stock of the Company that Holder is entitled to vote at the time of any vote or action by written consent to approve and adopt the Merger Agreement, the Merger and all agreements related to the Merger and any actions related to any of the foregoing at any meeting of the stockholders of the Company, and at any adjournment thereof, at which such Merger Agreement and other related agreements (or any amended version thereof) or such other actions, are submitted for the consideration and vote of the stockholders of the Company. Holder hereby agrees that it will not vote any capital stock of the Company in favor of, or consent to, and will vote against and not consent to, the approval of any (i) Acquisition Proposal, (ii) reorganization, recapitalization, liquidation or winding-up of the Company or any other extraordinary transaction involving the Company other than the Merger, (iii) corporate action the consummation of which would frustrate the purposes, or prevent or delay the consummation, of the transactions contemplated by the Merger Agreement or (iv) other matter relating to, or in connection with, any of the foregoing matters.