Representations and Warranties of Holders. Each Holder hereby represents and warrants to Parent as follows: (a) such Xxxxxx has the full power and authority to execute and deliver this Agreement and to perform such Xxxxxx’s obligations hereunder; (b) this Agreement has been duly executed and delivered by such Xxxxxx and, assuming due authorization, execution and delivery by the other Parties, constitutes a valid, legal and binding agreement with respect to such Holder, enforceable against such Holder in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or similar Laws affecting creditors’ rights generally and general principles of equity; (c) if such Holder is the beneficial owner of any Shares held in trust, no consent of any beneficiary of such trust is required in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby or by the Business Combination Agreement; (d) such Holder beneficially owns the number of Shares indicated opposite such Holder’s name on Schedule 1 hereto, free and clear of any Liens (other than Liens created by this Agreement, applicable securities laws, the Company’s Governing Documents, that certain Registration Rights Agreement made as of August 31, 2021 by and among the Company and certain of its stockholders (the “Registration Rights Agreement”), that certain Stockholders Agreement made as of May 22, 2019 by and among the Company and certain of its stockholders (the “Stockholders Agreement”), and Permitted Liens), and has sole, and otherwise unrestricted, voting and investment power with respect to such Shares; none of the Shares are subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of the Shares (other than the Stockholders Agreement); and no Person has any right to acquire from such Holder any of the Shares indicated opposite such Holder’s name on Schedule 1 hereto; (e) such Xxxxxx agrees to promptly notify Parent in writing of any changes or updates to Schedule 1 hereto as it relates to such Holder after the date hereof; (f) such Holder understands that, at the Effective Time, each outstanding Share shall be converted into the right to receive the Merger Consideration as set forth in the Business Combination Agreement; (g) the execution and delivery of this Agreement by such Holder, the consummation by such Holder of the transactions contemplated hereunder and the performance by such Xxxxxx of his, her or its obligations hereunder do not and will not conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time or both) under, any Contract or any judgment to which such Holder is a party or by which such Holder is bound, or any Law to which such Holder is subject or, in the event that such Holder is a corporation, company, partnership, limited liability company, joint venture, association, trust, business trust or other entity, any Governing Document of such Holder; (h) the execution and delivery of this Agreement by such Holder, the consummation by such Holder of the transactions contemplated hereunder and the performance by such Holder of his, her or its obligations hereunder do not and will not require any consent, approval, qualification, order or authorization of, registration, declaration or filing with, or notice to, any Governmental Entity by such Holder except for applicable requirements, if any, of the Exchange Act, and except where the failure to obtain such consents, approvals, qualifications, orders or authorizations or registrations, declarations or filings, would not prevent or impair in any material respect the performance by such Holder of his, her or its obligations under this Agreement; and (i) no investment banker, broker, finder, consultant or intermediary or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission based upon arrangements made by or on behalf of such Holder in connection with its entering into this Agreement.
Appears in 5 contracts
Samples: Business Combination Agreement (Phoenix Biotech Acquisition Corp.), Company Stockholder Support Agreement (Phoenix Biotech Acquisition Corp.), Company Stockholder Support Agreement (Phoenix Biotech Acquisition Corp.)
Representations and Warranties of Holders. (a) Each Holder hereby represents and warrants to Parent the Company (and every Person that acquires beneficial ownership (as follows:
such term is used in Rule 13d-3 under the Exchange Act) of any Warrants is deemed by such acquisition to represent and warrant to the Company, as if such Person were a Holder) that such Holder (ai) is an “accredited investor” within the meaning of Rule 501 of Regulation D; (ii) is financially able to bear all the risks of holding its interest being acquired for an indefinite period of time; (iii) has such Xxxxxx knowledge and experience in financial and business matters as to be able to evaluate the merits and risks of the acquisition of such interest and of making an informed investment decision with respect thereto; (iv) understands that its interest in the Company has not been registered under the full power Securities Act or the securities Laws of any jurisdiction in reliance upon exemptions contained in those Laws; (v) has acquired its interest in the Company for its own account, with the intention of holding the interest for investment and authority without any intention of participating directly or indirectly in any redistribution or resale of any portion of the interest in violation of the Securities Act or any applicable Law; (vi) understands that the interest in the Company may not be resold, transferred, pledged or otherwise disposed of absent an effective registration statement under the Securities Act or an applicable exemption from the registration requirements of the Securities Act and securities Laws of any other applicable jurisdiction, and that any certificate or book entry account representing such interest shall contain a legend to execute such effect; and deliver (vii) understands that the interest in the Company is subject to transfer restrictions, including as set forth in this Agreement, and as a result of these transfer restrictions, it may not be able to readily resell such interest and may be required to bear the financial risk of an investment in the Company for an indefinite period of time, and agrees that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any interest in the Company. The exercise by such Holder of rights and the performance of obligations under this Agreement will be based upon that Holders’ own investigation, analysis and expertise. Each Holder represents that no promise, agreement, statement or representation that is not expressly set forth in this Agreement or in any other written agreement by and among any of the Company, the Holders or their respective Affiliates has been made to perform such Xxxxxx’s obligations hereunder;Holder by the Company, by any other Holder or by any of their respective Affiliates, or by any representative of any of the foregoing, with respect to the terms set forth in this Agreement, and such Holder is not relying upon any such promise, agreement, statement or representation of the Company, any other Holder, any of their respective Affiliates or by any representative of any of the foregoing.
(b) this Agreement has been duly executed and delivered by Until such Xxxxxx and, assuming due authorization, execution and delivery by time as the other Parties, constitutes a valid, legal and binding agreement with respect to such Holder, enforceable against such Holder in accordance with its terms, Company becomes subject to applicable bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or similar Laws affecting creditors’ rights generally and general principles of equity;
(c) if such Holder is the beneficial owner of any Shares held in trust, no consent of any beneficiary of such trust is required in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby or by the Business Combination Agreement;
(d) such Holder beneficially owns the number of Shares indicated opposite such Holder’s name on Schedule 1 hereto, free and clear of any Liens (other than Liens created by this Agreement, applicable securities laws, the Company’s Governing Documents, that certain Registration Rights Agreement made as of August 31, 2021 by and among the Company and certain of its stockholders (the “Registration Rights Agreement”), that certain Stockholders Agreement made as of May 22, 2019 by and among the Company and certain of its stockholders (the “Stockholders Agreement”), and Permitted Liens), and has sole, and otherwise unrestricted, voting and investment power with respect to such Shares; none of the Shares are subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of the Shares (other than the Stockholders Agreement); and no Person has any right to acquire from such Holder any of the Shares indicated opposite such Holder’s name on Schedule 1 hereto;
(e) such Xxxxxx agrees to promptly notify Parent in writing of any changes or updates to Schedule 1 hereto as it relates to such Holder after the date hereof;
(f) such Holder understands that, at the Effective Time, each outstanding Share shall be converted into the right to receive the Merger Consideration as set forth in the Business Combination Agreement;
(g) the execution and delivery of this Agreement by such Holder, the consummation by such Holder of the transactions contemplated hereunder and the performance by such Xxxxxx of his, her or its reporting obligations hereunder do not and will not conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time or both) under, any Contract or any judgment to which such Holder is a party or by which such Holder is bound, or any Law to which such Holder is subject or, in the event that such Holder is a corporation, company, partnership, limited liability company, joint venture, association, trust, business trust or other entity, any Governing Document of such Holder;
(h) the execution and delivery of this Agreement by such Holder, the consummation by such Holder of the transactions contemplated hereunder and the performance by such Holder of his, her or its obligations hereunder do not and will not require any consent, approval, qualification, order or authorization of, registration, declaration or filing with, or notice to, any Governmental Entity by such Holder except for applicable requirements, if any, of under the Exchange Act, and except where the failure Company may request any Holder to obtain provide the Company with a certificate, within 30 days of such consentsrequest, approvals, qualifications, orders or authorizations or registrations, declarations or filings, would not prevent or impair in any material respect the performance by certifying whether such Holder is an “accredited investor” (within the meaning of his, her or its obligations Rule 501(a) under this Agreement; and
(i) no investment banker, broker, finder, consultant or intermediary or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission based upon arrangements made by or on behalf Regulation D of such Holder in connection with its entering into this Agreementthe Securities Act ).
Appears in 2 contracts
Samples: Warrant Agreement, Warrant Agreement
Representations and Warranties of Holders. Each Holder hereby represents and warrants to Parent as follows:
(a) such Xxxxxx has the full power and authority to execute and deliver this Agreement and to perform such Xxxxxx’s obligations hereunder;
(b) this Agreement has been duly executed and delivered by such Xxxxxx and, assuming due authorization, execution and delivery delivered by the other Parties, constitutes a valid, legal and binding agreement with respect to such Holder, enforceable against such Holder in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or similar Laws affecting creditors’ rights generally and general principles of equity;
(c) if such Holder is the beneficial owner of any Shares held in trust, no consent of any beneficiary of such trust is required in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby or by the Business Combination Agreement;
(d) such Holder beneficially owns the number of Shares Units indicated opposite such HolderXxxxxx’s name on Schedule 1 hereto, free and clear of any Liens (other than Liens created by this Agreement, applicable securities laws, the Company’s Governing Documents, that certain Registration Rights Agreement made as Certificate of August 31, 2021 by Formation and among the Company Company’s Second Amended and certain of its stockholders (the “Registration Rights Restated Operating Agreement”), that certain Stockholders Agreement made as of May 22, 2019 by and among the Company and certain of its stockholders (the “Stockholders Agreement”), and Permitted Liens), and has sole, and otherwise unrestricted, voting and investment power with respect to such SharesUnits; none of the Shares Units are subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of the Shares (other than the Stockholders Agreement)Units; and no Person has any right to acquire from such Holder any of the Shares Units indicated opposite such Holder’s name on Schedule 1 hereto;
(ed) such Xxxxxx agrees to promptly notify Parent in writing of any changes or updates to Schedule 1 hereto as it relates to such Holder after the date hereofhereof and prior to the Expiration Date;
(fe) such Holder understands that, at the Effective Time, each outstanding Share Unit shall be converted into the right to receive the Merger Consideration as set forth in the Business Combination Merger Agreement;
(gf) the execution and delivery of this Agreement by such Holder, the consummation by such Holder of the transactions contemplated hereunder and the performance by such Xxxxxx Holder of his, her or its obligations hereunder do not and will not conflict with, or result in any material violation or material breach of, or material default (with or without notice or lapse of time or both) under, any Contract or any judgment to which such Holder is a party or by which such Holder is bound, or any Law to which such Holder is subject or, in the event that such Holder is a corporation, company, partnership, limited liability company, joint venture, association, trust, business trust or other entity, any Governing Document of such Holder;
(hg) the execution and delivery of this Agreement by such Holder, the consummation by such Holder of the transactions contemplated hereunder and the performance by such Holder of his, her or its obligations hereunder do not and will not require any consent, approval, qualification, order or authorization of, registration, declaration or filing with, or notice to, any Governmental Entity by such Holder except for applicable requirements, if any, of the Exchange Act, and except where the failure to obtain such consents, approvals, qualifications, orders or authorizations or registrations, declarations or filings, would not prevent or impair in any material respect the performance by such Holder of his, her or its obligations under this Agreement; and
(ih) no investment banker, broker, finder, consultant or intermediary or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission based upon arrangements made by or on behalf of such Holder Xxxxxx (solely in its capacity as a Holder) in connection with its entering into this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Adit EdTech Acquisition Corp.), Voting Agreement (Adit EdTech Acquisition Corp.)
Representations and Warranties of Holders. Each Holder hereby represents and warrants to Parent as follows:
(a) (i) if such Xxxxxx Holder is a natural person, he or she has all the full power requisite power, legal capacity, and authority and has taken all action necessary in order to execute and deliver this Agreement, to perform his or her obligations hereunder and to consummate the transactions contemplated hereby, and (ii) if such Holder is not a natural person, (A) is a legal entity duly incorporated, formed or organized, validly existing and, to the extent such concept is applicable, in good standing under the Laws of the jurisdiction of its incorporation, formation or organization, and (B) has all requisite corporate or other power and authority and has taken all corporate or other action necessary in order to, execute, deliver and perform its obligations under this Agreement and to perform such Xxxxxx’s obligations hereunderconsummate the transactions contemplated hereby;
(b) this Agreement has been duly executed and delivered by such Xxxxxx and, assuming due authorization, execution and delivery by the other Parties, constitutes a valid, legal and binding agreement with respect to such Holder, enforceable against such Holder in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or similar Laws affecting creditors’ rights generally and general principles of equityequity affecting the availability of specific performance and other equitable remedies;
(c) if such Holder is the beneficial owner of any Shares held in trust, no consent of any beneficiary of such trust is required in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby or by the Business Combination Agreement;
(d) there are no Proceedings pending against such Holder beneficially owns or to the number knowledge of Shares indicated such Xxxxxx threatened against such Xxxxxx, before (or, in the case of threatened Proceedings, that would be before) any arbitrator or any Governmental Entity, which in any manner challenges or seeks to prevent, enjoin or materially delay the performance by such Holder of its, his or her obligations under this Agreement.
(e) such Holder is the record and beneficial owner (as such term is defined in Rule 13d-3 promulgated under the Exchange Act) of, and has good and valid title to, all of such Holder’s Share set forth opposite such the Holder’s name on Schedule 1 hereto, free and clear of any Liens (Liens, other than Liens created by this Agreement, applicable securities laws, the Company’s Governing Documents, that certain Registration Rights Agreement made as of August 31October 5, 2021 by and among the Company and certain of its stockholders (the “Registration Rights Agreement”), that certain Stockholders Agreement made as of May 22, 2019 2019, by and among the Company and certain of its stockholders (the “Stockholders Agreement”), and Permitted Liens), and . Such Holder has sole, and otherwise unrestricted, voting and investment power with respect to such Shares; none of the Shares are subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of the Shares (other than the Stockholders Agreement); and no Person has any right to acquire from such Holder any of the Shares indicated opposite such Holder’s name on Schedule 1 hereto;
(ef) such Xxxxxx agrees to promptly notify Parent and Company in writing of any changes or updates to Schedule 1 hereto as it relates to such Holder after the date hereof;
(fg) such Holder understands that, at the Effective Time, each outstanding Share shall be converted into the right to receive the Merger Consideration as set forth in the Business Combination Agreement;
(gh) the execution and delivery of this Agreement by such Holder, the consummation by such Holder of the transactions contemplated hereunder and the performance by such Xxxxxx of his, her or its obligations hereunder do not and will not conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time or both) under, any Contract or any judgment to which such Holder is a party or by which such Holder is bound, or any Law to which such Holder is subject or, in the event that such Holder is a corporation, company, partnership, limited liability company, joint venture, association, trust, business trust or other entity, any Governing Document of such Holder;
(hi) the execution and delivery of this Agreement by such Holder, the consummation by such Holder of the transactions contemplated hereunder and the performance by such Holder of his, her or its obligations hereunder do not and will not require any consent, approval, qualification, order or authorization of, registration, declaration or filing with, or notice to, any Governmental Entity by such Holder except for applicable requirements, if any, of the Exchange Act, and except where the failure to obtain such consents, approvals, qualifications, orders or authorizations or registrations, declarations or filings, would not prevent or impair in any material respect the performance by such Holder of his, her or its obligations under this Agreement; and;
(ij) no investment banker, broker, finder, consultant or intermediary or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission based upon arrangements made by or on behalf of such Holder in connection with its entering into this Agreement; and
(k) such Holder is a sophisticated stockholder and has adequate information concerning the business and financial condition of Parent and the Company to make an informed decision regarding this Agreement and the transactions contemplated hereby and has independently and without reliance upon Parent or the Company and based on such information as such Holder has deemed appropriate, made its, his or her own analysis and decision to enter into this Agreement. Each Holder acknowledges that Parent and the Company have not made and do not make any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement. Such Unitholder acknowledges that the agreements contained herein with respect to the Company Shares held by such Holder are irrevocable.
Appears in 2 contracts
Samples: Business Combination Agreement (Phoenix Biotech Acquisition Corp.), Company Stockholder Support Agreement (Phoenix Biotech Acquisition Corp.)
Representations and Warranties of Holders. Each Holder Holder, solely as to itself (severally and not jointly) and not any other Holder, hereby represents and warrants to Parent Parent, as of the date hereof, as follows:
(a) Such Holder is the record and beneficial owner of, and has good and valid title to, the Owned Shares and the Owned Warrants, free and clear of Liens other than as created by this Agreement. Such Holder has sole voting power, sole power of disposition, sole power to demand appraisal rights and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of such Xxxxxx Owned Shares and Owned Warrants, as applicable, with no limitations, qualifications or restrictions on such rights, subject to applicable securities laws and the terms of this Agreement. As of the date hereof, other than the Owned Shares and Owned Warrants, such Holder does not own beneficially or of record any (i) shares of capital stock or voting securities of the Company, (ii) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities of the Company or (iii) options or other rights to acquire from the Company any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company. Neither the Owned Shares or the Owned Warrants are subject to any voting trust agreement or other contract to which such Holder is a party restricting or otherwise relating to the voting or Transfer (as defined below) of any Owned Shares or Owned Warrants. Such Holder has not appointed or granted any proxy or power of attorney that is still in effect with respect to any Owned Shares, Owned Warrants or other Covered Shares, except as contemplated by this Agreement.
(b) Each such Holder is duly organized, validly existing and in good standing under the full laws of the jurisdiction of its formation and has all requisite power and authority to execute and deliver this Agreement and to perform such Xxxxxx’s its obligations hereunder;
(b) . The execution, delivery and performance of this Agreement by each such Holder, the performance by such Holder of its obligations hereunder and the consummation by such Holder of the transactions contemplated hereby have been duly and validly authorized by such Holder and no other corporate or organizational actions or proceedings on the part of such Holder are necessary to authorize the execution and delivery by such Holder of this Agreement, the performance by such Holder of its obligations hereunder or the consummation by such Holder of the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by such Xxxxxx Holder and, assuming due authorization, execution and delivery by the other PartiesParent, constitutes a validlegal, legal valid and binding agreement with respect to obligation of such Holder, enforceable against such Holder in accordance with its terms, subject to except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or similar Laws laws affecting creditors’ rights generally and by general principles of equity;equity (regardless of whether considered in a proceeding in equity or at law).
(c) if Except for the applicable requirements of the Exchange Act or the HSR Act, (i) no filing with, and no permit, authorization, consent or approval of, any Governmental Authority is necessary on the part of such Holder is for the beneficial owner of any Shares held in trustexecution, no consent of any beneficiary of such trust is required in connection with the execution delivery and delivery of this Agreement and the consummation of the transactions contemplated hereby or by the Business Combination Agreement;
(d) such Holder beneficially owns the number of Shares indicated opposite such Holder’s name on Schedule 1 hereto, free and clear of any Liens (other than Liens created by this Agreement, applicable securities laws, the Company’s Governing Documents, that certain Registration Rights Agreement made as of August 31, 2021 by and among the Company and certain of its stockholders (the “Registration Rights Agreement”), that certain Stockholders Agreement made as of May 22, 2019 by and among the Company and certain of its stockholders (the “Stockholders Agreement”), and Permitted Liens), and has sole, and otherwise unrestricted, voting and investment power with respect to such Shares; none of the Shares are subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of the Shares (other than the Stockholders Agreement); and no Person has any right to acquire from such Holder any of the Shares indicated opposite such Holder’s name on Schedule 1 hereto;
(e) such Xxxxxx agrees to promptly notify Parent in writing of any changes or updates to Schedule 1 hereto as it relates to such Holder after the date hereof;
(f) such Holder understands that, at the Effective Time, each outstanding Share shall be converted into the right to receive the Merger Consideration as set forth in the Business Combination Agreement;
(g) the execution and delivery performance of this Agreement by such Holder, Holder or the consummation by such Holder of the transactions contemplated hereunder hereby and (ii) except as would not reasonably be expected to prevent such Holder from performing its obligations under this Agreement, neither the execution, delivery or performance of this Agreement by such Xxxxxx Holder nor the consummation by such Holder of histhe transactions contemplated hereby nor compliance by such Holder with any of the provisions hereof would (A) conflict with or violate, her or its obligations hereunder do not and will not conflict withany provision of the organizational documents of any such Holder which is an entity, or (B) result in any breach or violation or breach of, or constitute a default (or an event which, with or without notice or lapse of time or both, would become a default) under, or give to others any Contract rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on such property or asset of such Holder pursuant to, any judgment contract to which such Holder is a party or by which such Holder is bound, or any Law to which property or asset of such Holder is subject orbound or affected or (C) violate any order, in the event that writ, injunction, decree, statute, rule or regulation applicable to such Holder is a corporation, company, partnership, limited liability company, joint venture, association, trust, business trust or other entity, any Governing Document of such Holder;’s properties or assets.
(hd) There is no action, suit or other proceeding or, to the execution and delivery knowledge of this Agreement by such Holder, investigation pending or, to the consummation by knowledge of such Holder, threatened against such Holder of the transactions contemplated hereunder and by or before any Governmental Authority that restricts or prohibits (or, if successful, would restrict or prohibit) the performance by of such Holder of his, her or its obligations hereunder do not and will not require any consent, approval, qualification, order or authorization of, registration, declaration or filing with, or notice to, any Governmental Entity by such Holder except for applicable requirements, if any, of the Exchange Act, and except where the failure to obtain such consents, approvals, qualifications, orders or authorizations or registrations, declarations or filings, would not prevent or impair in any material respect the performance by such Holder of his, her or its Holder’s obligations under this Agreement; and.
(ie) no investment banker, No broker, finder, consultant finder or intermediary or other Person investment bank is entitled to any broker’sbrokerage, finder’s, financial advisor’s or other similar fee or commission in connection with the transactions contemplated by the Merger Agreement or this Agreement based upon arrangements made by or on behalf of such Holder in connection with its (it being understood that any such broker, finder, investment bank or other Person engaged by or on behalf of the Company shall not be deemed to have acted or be acting based upon arrangements made by or on behalf of such Holder).
(f) Such Holder understands and acknowledges that Parent and Merger Sub are entering into the Merger Agreement in reliance upon such Holder’s execution and delivery of this AgreementAgreement and the representations and warranties of such Holder contained herein.
Appears in 1 contract
Samples: Voting Agreement (Matson, Inc.)
Representations and Warranties of Holders. Each Holder hereby represents and warrants to Parent as follows:
(a) such Xxxxxx Holder has the full power and authority to execute and deliver this Agreement and to perform such XxxxxxHolder’s obligations hereunder;
(b) this Agreement has been duly executed and delivered by such Xxxxxx Holder and, assuming due authorization, execution and delivery delivered by the other Parties, constitutes a valid, legal and binding agreement with respect to such Holder, enforceable against such Holder in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or similar Laws affecting creditors’ rights generally and general principles of equity;
(c) if such Holder is the beneficial owner of any Shares held in trust, no consent of any beneficiary of such trust is required in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby or by the Business Combination Agreement;
(d) such Holder beneficially owns the number of Shares indicated opposite such Holder’s name on Schedule 1 hereto, free and clear of any Liens (other than Liens created by this Agreement, applicable securities laws, the Company’s Governing DocumentsAmended and Restated Certificate of Incorporation, the Company’s existing bylaws, that certain Registration Amended and Restated Investors’ Rights Agreement made as of August 31October 22, 2021 2020 by and among the Company and certain of its stockholders (the “Registration Rights Agreement”stockholders, and Permitted Liens), that certain Stockholders Voting Agreement made entered into as of May October 22, 2019 2020 by and an among the Company and certain of its stockholders (stockholders, as amended by Amendment No. 1 to the “Stockholders Voting Agreement”), and Permitted Liens), and has sole, and otherwise unrestricted, voting and investment power with respect to such Shares; none of the Shares are subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of the Shares (other than the Stockholders Agreement)Shares; and no Person has any right to acquire from such Holder any of the Shares indicated opposite such Holder’s name on Schedule 1 hereto;
(e) such Xxxxxx Holder agrees to promptly notify Parent in writing of any changes or updates to Schedule 1 hereto as it relates to such Holder after the date hereof;
(f) such Holder understands that, at the Effective Time, each outstanding Share shall be converted into the right to receive the Merger Consideration as set forth in the Business Combination Agreement;
(g) the execution and delivery of this Agreement by such Holder, the consummation by such Holder of the transactions contemplated hereunder and the performance by such Xxxxxx Holder of his, her or its obligations hereunder do not and will not conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time or both) under, any Contract or any judgment to which such Holder is a party or by which such Holder is bound, or any Law to which such Holder is subject or, in the event that such Holder is a corporation, company, partnership, limited liability company, joint venture, association, trust, business trust or other entity, any Governing Document of such Holder;
(h) the execution and delivery of this Agreement by such Holder, the consummation by such Holder of the transactions contemplated hereunder and the performance by such Holder of his, her or its obligations hereunder do not and will not require any consent, approval, qualification, order or authorization of, registration, declaration or filing with, or notice to, any Governmental Entity by such Holder except for applicable requirements, if any, of the Exchange Act, and except where the failure to obtain such consents, approvals, qualifications, orders or authorizations or registrations, declarations or filings, would not prevent or impair in any material respect the performance by such Holder of his, her or its obligations under this Agreement; and
(i) no investment banker, broker, finder, consultant or intermediary or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission based upon arrangements made by or on behalf of such Holder in connection with its entering into this Agreement.
Appears in 1 contract
Samples: Business Combination Agreement (Dynamics Special Purpose Corp.)
Representations and Warranties of Holders. Each Holder hereby represents and warrants to Parent and the Company as follows:
(a) such Xxxxxx Such Holder has the full power and authority to execute and deliver this Agreement and to perform such XxxxxxHolder’s obligations hereunder;
(b) this Agreement has been duly executed and delivered by or on behalf of such Xxxxxx Holder and, assuming due authorization, execution this Agreement constitutes a valid and delivery by binding agreement of Parent and the other PartiesCompany, constitutes a valid, legal valid and binding agreement with respect to such Holder, enforceable against such Holder in accordance with its terms, subject to applicable except as enforcement may be limited by general principles of equity whether applied in a court of law or a court of equity and by bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or insolvency and similar Laws laws affecting creditors’ rights generally and general principles of equityremedies generally;
(c) if such Holder is the beneficial owner of any Shares held in trustexcept as otherwise set forth on Schedule 1 attached hereto, no consent of any beneficiary of such trust is required in connection with the execution and delivery of this Agreement and the consummation as of the transactions contemplated hereby or by the Business Combination Agreement;
(d) date hereof, such Holder beneficially owns the number of Shares Units indicated opposite such Holder’s name on Schedule 1 attached hereto, and will own any New Units, free and clear of any Liens liens, claims, security interests, pledges or other encumbrances or restrictions of any kind or nature whatsoever (other than Liens created by this Agreement, “Liens”) except for any restrictions under applicable securities laws, the Company’s Governing Documents, that certain Registration Rights Agreement made as of August 31, 2021 by and among the Company and certain of its stockholders (the “Registration Rights Agreement”), that certain Stockholders Agreement made as of May 22, 2019 by and among the Company and certain of its stockholders (the “Stockholders Agreement”), and Permitted Liens), and has solesole or shared, and otherwise unrestricted, voting and investment power with respect to such Shares; Units or New Units and none of the Shares are Units or New Units is or will be subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of the Shares (other than Units or the Stockholders Agreement); and no Person has any right to acquire from such Holder any of the Shares indicated opposite such Holder’s name on Schedule 1 hereto;
(e) such Xxxxxx agrees to promptly notify Parent in writing of any changes or updates to Schedule 1 hereto New Units, except as it relates to such Holder after the date hereof;
(f) such Holder understands that, at the Effective Time, each outstanding Share shall be converted into the right to receive the Merger Consideration as set forth in the Business Combination contemplated by this Agreement;
(gd) the execution and delivery of this Agreement by such HolderHolder does not, the consummation by such Holder of the transactions contemplated hereunder and the performance by such Xxxxxx Holder of his, her or its obligations hereunder do not and the compliance by such Holder with any provisions hereof will not not: (i) violate or conflict with, or result in any violation a material breach of or breach of, or constitute a material default (or an event that with or without notice or lapse of time or bothboth would become a material default) under, or give to others any Contract rights of termination, amendment, acceleration or cancellation of, or result in the creation of any Liens on any Units or New Units pursuant to, any agreement, instrument, note, bond, mortgage, contract, lease, license, permit or other obligation or any order, arbitration award, judgment or decree to which such Holder is a party or by which such Holder is bound, or any Law law, statute, rule or regulation to which such Holder is subject orsubject, except for such violations, conflicts, breaches, defaults, rights, Liens or other occurrences as would not materially impair the ability of such Holder to perform his, her or its obligations under this Agreement or prevent or materially delay the consummation of any of the actions contemplated hereby, or (ii) in the event that such Holder is a corporation, company, partnership, limited liability company, joint venture, association, trust, business trust or other entity, any Governing Document bylaw or other organizational document of such Holder;
(he) the execution and delivery of this Agreement by such HolderHolder does not, and the consummation performance of this Agreement by such Holder of the transactions contemplated hereunder and the performance by such Holder of his, her or its obligations hereunder do does not and will not not, require any consent, approval, qualification, order authorization or authorization permit of, registration, declaration or filing with, with or notice notification to, any Governmental Entity governmental or regulatory authority by such Holder except for applicable requirements, if any, of the Exchange Act, and except where the failure to obtain such consents, approvals, qualifications, orders or authorizations or registrationspermits, declarations or filingsto make such filings or notifications, would not prevent or impair in any material respect delay the performance by such Holder of his, her or its obligations under this AgreementAgreement in any material respect;
(f) as of the date hereof, there is no action pending or, to the knowledge of such Holder, threatened against or affecting such Holder before or by any Governmental Entity that would reasonably be expected to impair in any material respect the ability of such Holder to perform his, her or its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis; and
(ig) no investment banker, broker, finder, consultant or intermediary or other Person such Holder understands and acknowledges that Parent is entitled to any broker’s, finder’s, financial advisorentering into the Merger Agreement in reliance upon such Holder’s or other similar fee or commission based upon arrangements made by or on behalf execution and delivery of this Agreement and the representations and warranties of such Holder in connection with its entering into this Agreementcontained herein, and such Holder understands and acknowledges that the Merger Agreement governs the terms of the Merger and the other transactions contemplated thereby.
Appears in 1 contract
Samples: Voting Agreement (Transgenomic Inc)
Representations and Warranties of Holders. Each Holder severally (and not jointly) hereby represents represents, acknowledges, covenants and warrants to Parent agrees as follows:
(ai) the Shares are being acquired for such Holder's own account for investment purposes only and not with a view to any public resale, public distribution or public offering thereof within the meaning of the Securities Act or any state securities or "blue sky" law; (ii) to the knowledge of such Holder, the Shares have not been registered under the Securities Act or any state securities or "blue sky" law; (iii) such Xxxxxx Holder either is an "accredited investor" within the meaning of Rule 501 of Regulation D under the Securities Act, or such Holder has such knowledge and experience in financial and business matters that such Holder is capable of evaluating the full power relative merits and authority risks of the prospective investment in the Shares and able to bear the economic consequences thereof; (iv) such Holder will not offer for sale, sell or otherwise transfer any of the Shares (or any interest therein) except upon the terms and subject to the conditions specified herein, and otherwise not in violation of the Securities Act, provided that such Holder, prior to effecting any transfer of Shares permitted hereunder, will cause the intended transferee of the Shares to agree to take and hold such Shares subject to the terms and conditions of this Agreement (and, in that connection, to execute and deliver this Agreement to the Company such agreements and instruments as the Company reasonably may request to perform evidence the same), and further acknowledges that the certificates evidencing such Xxxxxx’s obligations hereunder;
Shares are required to have endorsed thereon a legend to the effect set forth in Section 3(a) hereof; (bv) this Agreement in making such Holder's decision to invest in the Registrable Securities, such Holder has been duly executed and delivered relied upon independent investigations made by such Xxxxxx Holder and, assuming due authorizationto the extent believed by him or it to be appropriate, execution and delivery has relied on investigations made by the other Parties, constitutes a valid, legal and binding agreement with respect to such Holder's representatives, enforceable against including such Holder in accordance with its termsHolder's own legal, subject to applicable bankruptcyaccounting, insolvencyinvestment, reorganizationfinancial, fraudulent transfer, moratorium or similar Laws affecting creditors’ rights generally tax and general principles of equity;
other professional advisors; (c) if such Holder is the beneficial owner of any Shares held in trust, no consent of any beneficiary of such trust is required in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby or by the Business Combination Agreement;
(dvi) such Holder beneficially owns has been afforded an opportunity to review and has reviewed all of the number of Shares indicated opposite Company's reports filed by the Company under the Exchange Act since January 1, 1994 (the "Public Filings"); and (vii) such Holder and such Holder’s name on Schedule 1 hereto's purchaser representatives, free as applicable, have been given the opportunity to examine all documents, including the Public Filings, and clear of any Liens (other than Liens created by this Agreementto ask questions of, applicable securities lawsand to receive answers from, the Company’s Governing Documents, that certain Registration Rights Agreement made as of August 31, 2021 by and among the Company and certain of its stockholders (representatives concerning the “Registration Rights Agreement”), that certain Stockholders Agreement made as of May 22, 2019 by and among the Company and certain of its stockholders (the “Stockholders Agreement”), and Permitted Liens), and has sole, and otherwise unrestricted, voting and investment power with respect to such Shares; none terms of the Shares are subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of the Shares (other than the Stockholders Agreement); Galaxie Purchase Agreement and no Person has any right to acquire from such Holder any of the Shares indicated opposite such Holder’s name on Schedule 1 hereto;
(e) such Xxxxxx agrees to promptly notify Parent in writing of any changes or updates to Schedule 1 hereto as it relates to such Holder after the date hereof;
(f) such Holder understands that, at the Effective Time, each outstanding Share shall be converted into the right to receive the Merger Consideration as set forth 's investment in the Business Combination Agreement;
(g) the execution and delivery of this Agreement by such Holder, the consummation by such Holder of the transactions contemplated hereunder and the performance by such Xxxxxx of his, her or its obligations hereunder do not and will not conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time or both) under, any Contract or any judgment to which such Holder is a party or by which such Holder is bound, or any Law to which such Holder is subject or, in the event that such Holder is a corporation, company, partnership, limited liability company, joint venture, association, trust, business trust or other entity, any Governing Document of such Holder;
(h) the execution and delivery of this Agreement by such Holder, the consummation by such Holder of the transactions contemplated hereunder and the performance by such Holder of his, her or its obligations hereunder do not and will not require any consent, approval, qualification, order or authorization of, registration, declaration or filing with, or notice to, any Governmental Entity by such Holder except for applicable requirements, if any, of the Exchange Act, and except where the failure to obtain such consents, approvals, qualifications, orders or authorizations or registrations, declarations or filings, would not prevent or impair in any material respect the performance by such Holder of his, her or its obligations under this Agreement; and
(i) no investment banker, broker, finder, consultant or intermediary or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission based upon arrangements made by or on behalf of such Holder in connection with its entering into this AgreementShares.
Appears in 1 contract
Samples: Investment and Registration Rights Agreement (Seacor Holdings Inc)
Representations and Warranties of Holders. Each Holder hereby represents and warrants to Parent as follows:
(a) such Xxxxxx Holder has the full power and authority to execute and deliver this Agreement and to perform such XxxxxxHolder’s obligations hereunder;
(b) this Agreement has been duly executed and delivered by such Xxxxxx Holder and, assuming due authorization, execution and delivery delivered by the other Parties, constitutes a valid, legal and binding agreement with respect to such Holder, enforceable against such Holder in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or similar Laws affecting creditors’ rights generally and general principles of equity;
(c) if such Holder is the beneficial owner of any Shares held in trust, no consent of any beneficiary of such trust is required in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby or by the Business Combination Agreement;
(d) such Holder beneficially owns the number of Shares indicated opposite such Holder’s name on Schedule 1 hereto, free and clear of any Liens (other than Liens created by this Agreement, applicable securities laws, the Company’s Governing DocumentsAmended and Restated Certificate of Incorporation, the Company’s existing bylaws, that certain Registration Amended and Restated Investors’ Rights Agreement made entered into as of August 31June 25, 2021 2018 by and among the Company and certain of its stockholders (the “Registration Rights Agreement”), that certain Stockholders Agreement made as of May 22, 2019 by and among the Company and certain of its stockholders (the “Stockholders Agreement”)stockholders, and Permitted Liens), and has sole, and otherwise unrestricted, voting and investment power with respect to such Shares; none of the Shares are subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of the Shares (other than the Stockholders Agreement)Shares; and no Person has any right to acquire from such Holder any of the Shares indicated opposite such Holder’s name on Schedule 1 hereto;
(ed) such Xxxxxx Holder agrees to promptly notify Parent in writing of any changes or updates to Schedule 1 hereto as it relates to such Holder after the date hereof;
(fe) such Holder understands that, at the Effective Time, each outstanding Share shall be converted into the right to receive the Merger Consideration as set forth in the Business Combination Agreement;
(gf) the execution and delivery of this Agreement by such Holder, the consummation by such Holder of the transactions contemplated hereunder and the performance by such Xxxxxx Holder of his, her or its obligations hereunder do not and will not conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time or both) under, any Contract or any judgment to which such Holder is a party or by which such Holder is bound, or any Law to which such Holder is subject or, in the event that such Holder is a corporation, company, partnership, limited liability company, joint venture, association, trust, business trust or other entity, any Governing Document of such Holder;
(hg) the execution and delivery of this Agreement by such Holder, the consummation by such Holder of the transactions contemplated hereunder and the performance by such Holder of his, her or its obligations hereunder do not and will not require any consent, approval, qualification, order or authorization of, registration, declaration or filing with, or notice to, any Governmental Entity by such Holder except for applicable requirements, if any, of the Exchange Act, and except where the failure to obtain such consents, approvals, qualifications, orders or authorizations or registrations, declarations or filings, would not prevent or impair in any material respect the performance by such Holder of his, her or its obligations under this Agreement; and
(ih) no investment banker, broker, finder, consultant or intermediary or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission based upon arrangements made by or on behalf of such Holder in connection with its entering into this Agreement.
Appears in 1 contract
Samples: Business Combination Agreement (Alpha Healthcare Acquisition Corp.)
Representations and Warranties of Holders. Each Holder of the Holders hereby severally represents and warrants to Parent the Company, on behalf of itself, as follows:
(a) Such Holder is (and on the Redemption Date and each date on which such Xxxxxx has Holder purchases Warrant Shares upon exercise of all or any portion of the full power 4 Warrants, such Holder will be) an "accredited investor" within the meaning of Regulation D, as promulgated by the Securities and authority Exchange Commission pursuant to execute and deliver this Agreement and to perform such Xxxxxx’s obligations hereunderthe Securities Act of 1933, as amended (the "Act");
(b) this Agreement Such Holder has been duly executed such knowledge and delivered by such Xxxxxx and, assuming due authorization, execution experience in financial and delivery by business matters that it is capable of evaluating the other Parties, constitutes a valid, legal merits and binding agreement with respect to such Holder, enforceable against such Holder risks of the transactions contemplated hereby and of an investment in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or similar Laws affecting creditors’ rights generally and general principles of equitythe Company's securities;
(c) if such Such Holder is has been furnished and has reviewed the beneficial owner of any Shares held in trustCompany's Annual Report on Form 10-K for the year ended December 31, no consent of any beneficiary of such trust is required in connection 1999, Quarterly Report on Form 10-Q for the quarter ended March 31, 2000 and Current Report on Form 8-K, as filed with the execution Commission on June 16, 2000 (which Form 8-K describes the terms and delivery conditions upon which the Company issued shares of this Agreement Series A Convertible Preferred Stock, Series C Preferred Stock, and the consummation warrants, a portion of the transactions net proceeds of which will be used to fund the redemption of the Series B Shares contemplated hereby or by the Business Combination this Letter Agreement);
(d) Such Holder has had the opportunity to confer with the Company's management and has obtained such additional information regarding the Company, its business and capital structure as such Holder beneficially owns has requested in connection with the number of Shares indicated opposite such Holder’s name on Schedule 1 hereto, free and clear of any Liens (other than Liens created transaction contemplated by this Letter Agreement, applicable securities laws, the Company’s Governing Documents, that certain Registration Rights Agreement made as of August 31, 2021 by and among the Company and certain of its stockholders (the “Registration Rights Agreement”), that certain Stockholders Agreement made as of May 22, 2019 by and among the Company and certain of its stockholders (the “Stockholders Agreement”), and Permitted Liens), and has sole, and otherwise unrestricted, voting and investment power with respect to such Shares; none of the Shares are subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of the Shares (other than the Stockholders Agreement); and no Person has any right to acquire from such Holder any of the Shares indicated opposite such Holder’s name on Schedule 1 hereto;
(e) such Xxxxxx agrees to promptly notify Parent in writing Such Holder acquired the Original Warrants or Commission Warrants, is acquiring the Additional Warrants or the Additional Commission Warrants, as applicable, and will acquire Warrant Shares upon exercise of any changes such Warrants, for investment and without a view to the sale, assignment, transfer or updates to Schedule 1 hereto as it relates to such Holder after the date hereofother distribution thereof;
(f) such Holder Such understands that, at that the Effective Time, each outstanding Share shall be converted into the right to receive the Merger Consideration as set forth in the Business Combination Agreement;
(g) the execution and delivery of this Agreement by such Holder, the consummation by such Holder of the transactions contemplated hereunder Warrants and the performance by such Xxxxxx Warrant Shares may not be offered for sale, sold or otherwise transferred except pursuant to an effective registration statement under the Act and in compliance with the applicable securities laws of his, her any state or its obligations hereunder do not and will not conflict withother jurisdiction, or result in any violation or breach of, or default (with or without notice or lapse pursuant to an opinion of time or both) under, any Contract or any judgment counsel satisfactory to which such Holder is a party or by which such Holder is bound, or any Law to which such Holder is subject or, in the event company that such Holder registration is a corporation, company, partnership, limited liability company, joint venture, association, trust, business trust or other entity, any Governing Document of not required and such Holder;
(h) the execution and delivery of this Agreement by such Holder, the consummation by such Holder of the transactions contemplated hereunder and the performance by such Holder of his, her or its obligations hereunder do not and will not require any consent, approval, qualification, order or authorization of, registration, declaration or filing with, or notice to, any Governmental Entity by such Holder except for applicable requirements, if any, of the Exchange Act, and except where the failure to obtain such consents, approvals, qualifications, orders or authorizations or registrations, declarations or filings, would not prevent or impair in any material respect the performance by such Holder of his, her or its obligations under this Agreement; and
(i) no investment banker, broker, finder, consultant or intermediary or other Person is entitled compliance has been obtained. The Company may affix an appropriate legend to any broker’s, finder’s, financial advisor’s certificate(s) evidencing Warrants or other similar fee or commission based upon arrangements made by or on behalf of such Holder in connection with its entering into this AgreementWarrant Shares to reflect the foregoing.
Appears in 1 contract
Samples: Letter Agreement (Symposium Corp)
Representations and Warranties of Holders. Each As an inducement to Parent, Intermediate Holdings and Reorganized Invacare to enter into this Agreement, each Holder hereby represents and warrants to Parent severally (and not jointly), as of the Agreement Date and as of the Effective Date, as follows:
(a) such Xxxxxx has As of the full power date hereof and authority to execute and deliver this Agreement and to perform such Xxxxxx’s obligations hereunder;
(b) this Agreement has been duly executed and delivered by such Xxxxxx andas of the Effective Date, assuming due all corporate action on the part of each Holder necessary for the authorization, execution and delivery by the other Partiesexecution, constitutes a valid, legal and binding agreement with respect to such Holder, enforceable against such Holder in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or similar Laws affecting creditors’ rights generally and general principles of equity;
(c) if such Holder is the beneficial owner of any Shares held in trust, no consent of any beneficiary of such trust is required in connection with the execution and delivery of this Agreement Agreement, the Exchange Agreement, the Intermediate Holdings Warrants, the Reorganized Invacare Warrants, and the agreements and other documents contemplated hereby and thereby, the performance of all obligations of each Holder hereunder and thereunder and the consummation of the transactions contemplated hereby or by and thereby, including the Business Combination Agreement;
Transactions (d) such Holder beneficially owns to the number extent the CF Transition Date occurs), has been taken. As of Shares indicated opposite such Holder’s name on Schedule 1 heretothe date hereof and as of the Effective Date, free and clear of any Liens (other than Liens created by this Agreement, applicable securities lawsthe Exchange Agreement, the Company’s Governing Documents, that certain Registration Rights Agreement made as of August 31, 2021 by and among the Company and certain of its stockholders (the “Registration Rights Agreement”), that certain Stockholders Agreement made as of May 22, 2019 by and among the Company and certain of its stockholders (the “Stockholders Agreement”), and Permitted Liens), and has sole, and otherwise unrestricted, voting and investment power with respect to such Shares; none of the Shares are subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of the Shares (other than the Stockholders Agreement); and no Person has any right to acquire from such Holder any of the Shares indicated opposite such Holder’s name on Schedule 1 hereto;
(e) such Xxxxxx agrees to promptly notify Parent in writing of any changes or updates to Schedule 1 hereto as it relates to such Holder after the date hereof;
(f) such Holder understands that, at the Effective Time, each outstanding Share shall be converted into the right to receive the Merger Consideration as set forth in the Business Combination Agreement;
(g) the execution and delivery of this Agreement by such Holder, the consummation by such Holder of the transactions contemplated hereunder Intermediate Holdings Warrants and the performance by such Xxxxxx of his, her or its obligations hereunder do not Reorganized Invacare Warrants and will not conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time or both) under, any Contract or any judgment the agreements and other documents contemplated hereby and thereby to which such each Holder is a party are valid and legally binding obligations of such Holder, as applicable, enforceable against such Holder, as applicable, in accordance with their terms, subject to (i) the fact that the Exchange Agreement shall not be effective until the CF Transition Date, (ii) the fact that the Intermediate Holdings Warrants and Reorganized Invacare Warrants shall not be effective until the Effective Date, (iii) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or by which other similar laws relating to or affecting the enforcement of creditors’ rights generally and (iv) laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.
(b) Any securities issued pursuant to the Transactions (the “Securities”) are being acquired for such Xxxxxx’s own account, for investment and not with a view to the distribution or resale thereof. Such Holder is boundunderstands that the Securities have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), or any Law state securities or blue sky laws, by reason of their issuance in a transaction exempt from the registration requirements thereunder and may not be resold unless a subsequent disposition thereof is registered thereunder (it being understood that neither Parent, Intermediate Holdings, nor Reorganized Invacare is under any obligation to which such Holder so register) or is subject or, exempt from registration thereunder (and acknowledges that an investment in the event that such Holder Securities is highly speculative and involves a corporation, company, partnership, limited liability company, joint venture, association, trust, business trust or other entity, any Governing Document high degree of risk of loss of such Holder;
’s entire investment in the Securities and neither Parent, Intermediate Holdings, nor Reorganized Invacare has provided such Holder with any indication of any value of the Securities). Such Holder has access to the same kind of information which would be available in a registration statement filed under the Securities Act. (hi) Such Holder is an accredited investor as defined in Rule 501 promulgated by the execution Securities and delivery Exchange Commission (“SEC”), (ii) none of this Agreement by the “Bad Actor” disqualifying events described in Rule 506(d)(1)(i) to (viii) promulgated under the Securities Act are applicable to such Holder, the consummation by and (iii) such Holder has such knowledge and experience in financial and business matters as to be capable of evaluating the transactions contemplated hereunder merits and risks of an investment in the performance by such Holder Securities (and is able to bear the risks of his, her or its obligations hereunder do not and will not require any consent, approval, qualification, order or authorization of, registration, declaration or filing with, or notice to, any Governmental Entity by such Holder except for applicable requirements, if any, of an investment in the Exchange Act, and except where the failure to obtain such consents, approvals, qualifications, orders or authorizations or registrations, declarations or filings, would not prevent or impair in any material respect the performance by such Holder of his, her or its obligations under this Agreement; and
(i) no investment banker, broker, finder, consultant or intermediary or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission based upon arrangements made by or on behalf of such Holder in connection with its entering into this AgreementSecurities).
Appears in 1 contract
Representations and Warranties of Holders. Each Holder hereby of the Holders, severally and not jointly, represents and warrants to Parent as followsthat:
(a) The Holder, by reason of its business and financial experience, has such Xxxxxx knowledge, sophistication and experience in business and financial matters as to be capable of evaluating the merits and risk of the prospective investment, and is acquiring the Exchange Securities for its own account (and/or on behalf of managed accounts that are acquiring for their own account) and with no present intention of distributing or reselling the same or any part thereof other than pursuant to a registration statement under the Securities Act or an exemption thereunder, without prejudice, however, to its right (subject to the terms of this Agreement) at all times to sell or otherwise dispose of all or any part of said Exchange Securities pursuant to a registration statement under the Securities Act, or under an exemption from registration under the Securities Act, or under an exemption from such registration available under the Securities Act, and subject, nevertheless, to the disposition of its assets being at all times within its control.
(b) The Holder has the full power and authority to execute execute, deliver and deliver perform this Agreement and to perform such Xxxxxx’s obligations hereunder;
carry out the transactions contemplated by this Agreement; the execution, delivery and performance of this Agreement have been duly authorized by all requisite corporate (bor similar) action on the part of the Holder; and this Agreement has been duly executed and delivered by such Xxxxxx andthe Holder and this Agreement and is a legal, assuming due authorization, execution and delivery by the other Parties, constitutes a valid, legal valid and binding agreement with respect to such Holder, obligation of the Holder enforceable against such Holder in accordance with its terms, except: (i) that such enforceability may be subject to applicable bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar Laws affecting laws now or hereafter in effect relating to creditors’ ' rights generally generally; (ii) that such enforceability may be subject to general equitable principles, including, without limitation, the principle that the availability of equitable remedies, such as specific enforcement, injunctive relief or reformation, is subject to the discretion of the court before which any proceeding might be brought; and general principles of equity;(iii) as rights to indemnity referred to or provided in such agreement may be limited by Federal or state securities laws or public policy underlying such laws.
(c) if such The Holder is the beneficial owner of any Shares held in trust, no consent of any beneficiary of such trust is required in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby or by the Business Combination Agreement;
(d) such Holder beneficially owns the number of Shares indicated opposite such Holder’s name on Schedule 1 hereto, free and clear of any Liens (other than Liens created by this Agreement, applicable securities laws, the Company’s Governing Documents, acknowledges that certain Registration Rights Agreement made as of August 31, 2021 by and among the Company and certain of its stockholders (the “Registration Rights Agreement”), that certain Stockholders Agreement made as of May 22, 2019 by and among the Company and certain of its stockholders (the “Stockholders Agreement”), and Permitted Liens), and has sole, and otherwise unrestricted, voting and investment power with respect to such Shares; none of the Shares are subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of the Shares (other than the Stockholders Agreement); and no Person has any right to acquire from such Holder any of the Shares indicated opposite such Holder’s name on Schedule 1 hereto;
(e) such Xxxxxx agrees to promptly notify Parent in writing of any changes or updates to Schedule 1 hereto as it relates to such Holder after the date hereof;
(f) such Holder understands that, at the Effective Time, each outstanding Share shall be converted into the right to receive the Merger Consideration as set forth in the Business Combination Agreement;
(g) the execution and delivery of this Agreement by such Holder, the consummation by such Holder of the transactions contemplated hereunder and the performance by such Xxxxxx of his, her or its obligations hereunder do not and will not conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time or both) under, any Contract or any judgment to which such Holder is a party or by which such Holder is bound, or any Law to which such Holder is subject or, in the event that such Holder is a corporation, company, partnership, limited liability company, joint venture, association, trust, business trust or other entity, any Governing Document of such Holder;
(h) the execution and delivery of this Agreement by such Holder, the consummation by such Holder of the transactions contemplated hereunder and the performance by such Holder of his, her or its obligations hereunder do not and will not require any consent, approval, qualification, order or authorization of, registration, declaration or filing with, or notice to, any Governmental Entity by such Holder except for applicable requirements, if any, of the Exchange Act, and except where Securities being acquired by it have not been registered under the failure to obtain such consents, approvals, qualifications, orders or authorizations or registrations, declarations or filings, would not prevent or impair Securities Act in any material respect reliance upon the performance by such Holder of his, her or its obligations under this Agreement; and
(i) no investment banker, broker, finder, consultant or intermediary or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission based upon arrangements made by or on behalf of such Holder exemption from registration contained in connection with its entering into this Agreement.Section 3a(9)
Appears in 1 contract
Samples: Exchange Agreement (Ampex Corp /De/)
Representations and Warranties of Holders. Each Holder hereby represents and warrants to Parent as follows:
(a) such Xxxxxx Holder has the full power and authority to execute and deliver this Agreement and to perform such XxxxxxHolder’s obligations hereunder;
(b) this Agreement has been duly executed and delivered by such Xxxxxx Holder and, assuming due authorization, execution and delivery delivered by the other Parties, constitutes a valid, legal and binding agreement with respect to such Holder, enforceable against such Holder in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or similar Laws affecting creditors’ rights generally and general principles of equity;
(c) if such Holder is the beneficial owner of any Shares held in trust, no consent of any beneficiary of such trust is required in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby or by the Business Combination Agreement;
(d) such Holder beneficially owns the number of Shares indicated opposite such Holder’s name on Schedule 1 hereto, free and clear of any Liens (other than Liens created by this Agreement, applicable securities laws, the Company’s Governing DocumentsAmended and Restated Certificate of Incorporation, the Company’s existing bylaws, that certain Registration Amended and Restated Investors’ Rights Agreement made as of August 31October 22, 2021 2020 by and among the Company and certain of its stockholders (the “Registration Rights Agreement”stockholders, and Permitted Liens), that certain Stockholders Voting Agreement made entered into as of May October 22, 2019 2020 by and an among the Company and certain of its stockholders (the “Stockholders Agreement”)stockholders, and Permitted Liens), and has sole, and otherwise unrestricted, voting and investment power with respect to such Shares; none of the Shares are subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of the Shares (other than the Stockholders Agreement); and no Person has any right to acquire from such Holder any of the Shares indicated opposite such Holder’s name on Schedule 1 hereto;as amended by Amendment No.
(e) such Xxxxxx Holder agrees to promptly notify Parent in writing of any changes or updates to Schedule 1 hereto as it relates to such Holder after the date hereof;
(f) such Holder understands that, at the Effective Time, each outstanding Share shall be converted into the right to receive the Merger Consideration as set forth in the Business Combination Agreement;
(g) the execution and delivery of this Agreement by such Holder, the consummation by such Holder of the transactions contemplated hereunder and the performance by such Xxxxxx Holder of his, her or its obligations hereunder do not and will not conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time or both) under, any Contract or any judgment to which such Holder is a party or by which such Holder is bound, or any Law to which such Holder is subject or, in the event that such Holder is a corporation, company, partnership, limited liability company, joint venture, association, trust, business trust or other entity, any Governing Document of such Holder;
(h) the execution and delivery of this Agreement by such Holder, the consummation by such Holder of the transactions contemplated hereunder and the performance by such Holder of his, her or its obligations hereunder do not and will not require any consent, approval, qualification, order or authorization of, registration, declaration or filing with, or notice to, any Governmental Entity by such Holder except for applicable requirements, if any, of the Exchange Act, and except where the failure to obtain such consents, approvals, qualifications, orders or authorizations or registrations, declarations or filings, would not prevent or impair in any material respect the performance by such Holder of his, her or its obligations under this Agreement; and
(i) no investment banker, broker, finder, consultant or intermediary or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission based upon arrangements made by or on behalf of such Holder in connection with its entering into this Agreement.
Appears in 1 contract
Samples: Business Combination Agreement (Dynamics Special Purpose Corp.)
Representations and Warranties of Holders. Each ----------------------------------------- Holder severally (and not jointly) hereby represents represents, acknowledges, covenants and warrants to Parent agrees as follows:
(ai) the Securities are being acquired for such Holder's own account for investment purposes only and not with a view to any resale in violation of the Securities Act or any state securities or "blue sky" law; (ii) to the knowledge of such Holder, the Securities have not been registered under the Securities Act or any state securities or "blue sky" law; (iii) such Xxxxxx has Holder is an "accredited investor" within the full power meaning of Rule 501 of Regulation D under the Securities Act; (iv) such Holder will not offer for sale, sell or otherwise transfer any of the Securities (or any interest therein) except upon the terms and authority subject to the conditions specified herein, and otherwise not in violation of the Securities Act or any state securities or "blue sky" laws, provided that such Holder, prior to effecting any transfer of Securities permitted hereunder (other than a transfer of Securities following which such Securities shall cease to constitute Registrable Securities pursuant to a sale described in clause (i) or (ii) of the proviso contained in the definition of "Registrable Securities"), will cause the intended transferee of the Securities to agree to take and hold such Securities subject to the terms and conditions of this Agreement (and, in that connection, to execute and deliver this Agreement to the Company such agreements and instruments as the Company reasonably may request to perform evidence the same), and further acknowledges that the certificates evidencing such Xxxxxx’s obligations hereunder;
Securities are required to have endorsed thereon a legend to the effect set forth in Section 3(a) hereof; (bv) this Agreement in making such Holder's decision to invest in the Registrable Securities, such Holder has been duly executed and delivered relied upon independent investigations made by such Xxxxxx Holder and, assuming due authorizationto the extent believed by him or it to be appropriate, execution and delivery has relied on investigations made by the other Parties, constitutes a valid, legal and binding agreement with respect to such Holder's representatives, enforceable against including such Holder in accordance with its termsHolder's own legal, subject to applicable bankruptcyaccounting, insolvencyinvestment, reorganizationfinancial, fraudulent transfer, moratorium or similar Laws affecting creditors’ rights generally tax and general principles of equity;
other professional advisors; (c) if such Holder is the beneficial owner of any Shares held in trust, no consent of any beneficiary of such trust is required in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby or by the Business Combination Agreement;
(dvi) such Holder beneficially owns has been afforded an opportunity to review all of the number of Shares indicated opposite Company's reports filed by the Company under the Exchange Act since January 1, 1994 (the "Public Filings"); and (vii) such Holder and such Holder’s name on Schedule 1 hereto's purchaser representatives, free as applicable, have been given the opportunity to examine all documents, including the Public Filings, and clear of any Liens (other than Liens created by this Agreementto ask questions of, applicable securities lawsand to receive answers from, the Company’s Governing Documents, that certain Registration Rights Agreement made as of August 31, 2021 by and among the Company and certain of its stockholders (representatives concerning the “Registration Rights Agreement”), that certain Stockholders Agreement made as of May 22, 2019 by and among the Company and certain of its stockholders (the “Stockholders Agreement”), and Permitted Liens), and has sole, and otherwise unrestricted, voting and investment power with respect to such Shares; none terms of the Shares are subject to any voting trust or other agreement, arrangement or restriction with respect to the voting of the Shares (other than the Stockholders Agreement); Purchase Agreement and no Person has any right to acquire from such Holder any of the Shares indicated opposite such Holder’s name on Schedule 1 hereto;
(e) such Xxxxxx agrees to promptly notify Parent in writing of any changes or updates to Schedule 1 hereto as it relates to such Holder after the date hereof;
(f) such Holder understands that, at the Effective Time, each outstanding Share shall be converted into the right to receive the Merger Consideration as set forth 's investment in the Business Combination Agreement;
(g) the execution and delivery of this Agreement by such Holder, the consummation by such Holder of the transactions contemplated hereunder and the performance by such Xxxxxx of his, her or its obligations hereunder do not and will not conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time or both) under, any Contract or any judgment to which such Holder is a party or by which such Holder is bound, or any Law to which such Holder is subject or, in the event that such Holder is a corporation, company, partnership, limited liability company, joint venture, association, trust, business trust or other entity, any Governing Document of such Holder;
(h) the execution and delivery of this Agreement by such Holder, the consummation by such Holder of the transactions contemplated hereunder and the performance by such Holder of his, her or its obligations hereunder do not and will not require any consent, approval, qualification, order or authorization of, registration, declaration or filing with, or notice to, any Governmental Entity by such Holder except for applicable requirements, if any, of the Exchange Act, and except where the failure to obtain such consents, approvals, qualifications, orders or authorizations or registrations, declarations or filings, would not prevent or impair in any material respect the performance by such Holder of his, her or its obligations under this Agreement; and
(i) no investment banker, broker, finder, consultant or intermediary or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission based upon arrangements made by or on behalf of such Holder in connection with its entering into this AgreementSecurities.
Appears in 1 contract
Samples: Investment and Registration Rights Agreement (Seacor Holdings Inc)
