Representations of Stockholder Each Stockholder hereby severally and not jointly represents and warrants to Parent on the Execution Date and immediately prior to the Closing on the Closing Date that:
(a) Such Stockholder’s ownership of the Pxxxxx Shares set forth below such Stockholder’s signature on the signature page hereto completely and accurately represents such Stockholder’s Beneficial Ownership of Pxxxxx Xxxxxx, except for any change of Beneficial Ownership permitted under the Voting and Support Agreement, dated as of the date hereof, by and between the Stockholders, any other stockholders of Pxxxxx party thereto and Parent (the “Voting and Support Agreement”).
(b) Except as set forth on Schedule 2 or as consideration with respect to the Merger, such Stockholder does not Beneficially Own, directly or indirectly, any shares of Parent Common Stock. Except as consideration with respect to the Merger, neither such Stockholder nor any Affiliate of such Stockholder which such Stockholder controls, owns or holds any right to acquire any shares of any class of capital stock of Parent or other securities of Parent or any interest therein or any voting rights with respect to any securities of Parent.
(c) Such Stockholder has full power and authority to enter into, execute and deliver this Agreement and to perform fully such Stockholder’s obligations hereunder (including the proxy described in Section 4 below). This Agreement has been duly and validly executed and delivered by such Stockholder and constitutes the legal, valid and binding obligation of such Stockholder, enforceable against such Stockholder in accordance with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or other similar Laws affecting creditors’ rights generally.
(d) The execution and delivery of this Agreement by such Stockholder does not, and the consummation of the transactions contemplated hereby and the compliance with the provisions hereof will not, conflict with or violate any Law applicable to such Stockholder or result in any breach or violation of, or constitute a default (or an event, that with notice or lapse of time or both, would become a default) under, or give to others any rights of termination, amendment, acceleration, or cancellation of, or result in the creation of any Lien on any of the Shares pursuant to any agreement or other instrument or obligation (including organizational documents) binding upon such Stockholder or any of the Shares, except for any of the foregoing as would not, or would not reasonably be expected to, individually or in the aggregate, materially impair the ability of the Stockholder to perform its obligations under this Agreement.
(e) No consent, approval, Order or authorization of, or registration, designation, declaration or filing with, any Governmental Body or other Person on the part of such Stockholder is required in connection with the valid execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.
(f) There is no action, suit, investigation, or proceeding (whether judicial, arbitral, administrative, or otherwise) (each an “Action”) pending against, or, to the knowledge of such Stockholder, threatened against, the validity of this Agreement or such Stockholder (in each case due to any action or inaction by such Stockholder and, for the avoidance of doubt, not due to any action or inaction by Parent) that could reasonably be expected to materially impair or materially adversely affect the ability of such Stockholder to perform such Stockholder’s obligations hereunder or to consummate the transactions contemplated by this Agreement on a timely basis.
(g) Other than the Voting and Support Agreement and this Agreement, no agreement exists between the Stockholders, on the one hand, and any other party on the other hand, to vote or acquire any Shares or engage in any other transaction related to the Shares, and this Agreement does not represent or reflect any agreement or concerted action between such Stockholder and any other party related to the Shares or any other securities.
Representations of the Holder In connection with the issuance of this Warrant, the Holder specifically represents, as of the date hereof, to the Company by acceptance of this Warrant as follows:
(i) The Holder is an “accredited investor” as defined in Rule 501(a) of Regulation D promulgated under the Securities Act. The Holder is acquiring this Warrant and the Warrant Shares to be issued upon exercise hereof for investment for its own account and not with a view towards, or for resale in connection with, the public sale or distribution of this Warrant or the Warrant Shares, except pursuant to sales registered or exempted under the Securities Act.
(ii) The Holder understands and acknowledges that this Warrant and the Warrant Shares to be issued upon exercise hereof are “restricted securities” under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that, under such laws and applicable regulations, such securities may be resold without registration under the Securities Act only in certain limited circumstances. In addition, the Holder represents that it is familiar with Rule 144 under the Securities Act, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act.
(iii) The Holder acknowledges that it can bear the economic and financial risk of its investment for an indefinite period, and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the Warrant and the Warrant Shares. The Holder has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Warrant and the business, properties, prospects and financial condition of the Company.