Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub as follows: (a) The Stockholder (i) is the record or beneficial owner of the Company Shares (together with any Company Shares which such Stockholder may acquire of record or as a beneficial owner) at any time in the future during the term of this Agreement, the “Subject Shares”) set forth opposite such Stockholder’s name on Schedule I to this Agreement and (ii) except as set forth in Schedule I to this Agreement, does not hold or have any beneficial ownership interest in any other Company Shares or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan), or warrant to acquire Company Shares or other right or security convertible into or exercisable or exchangeable for Company Shares. (b) The Stockholder has the legal capacity to execute and deliver this Agreement and to consummate the transactions contemplated hereby. (c) This Agreement has been validly executed and delivered by the Stockholder and, assuming this Agreement constitutes a valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation of the Stockholder, enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally and (ii) is subject to rules of law governing specific performance, injunctive relief and other equitable remedies and general principles of equity. (d) Neither the execution and delivery of this Agreement nor the consummation by the Stockholder of the transactions contemplated hereby will violate, conflict with, or result in the breach of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, any contract, trust, commitment, agreement, or other instrument of any kind to which such Stockholder is a party or by which such Stockholder’s properties or assets are bound. The consummation by the Stockholder of the transactions contemplated hereby will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents or approvals or to make such notifications, would not, individually or in the aggregate, prevent or materially delay the performance by such Stockholder of any of its obligations under this Agreement[, and (z) the execution of this Agreement by the Stockholder’s spouse.] (e) The Subject Shares and the certificates, if any, representing the Subject Shares owned by the Stockholder are now, and at all times during the term hereof will be, held by such Stockholder, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale of the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”).
Appears in 2 contracts
Samples: Support Agreement (Ca, Inc.), Support Agreement (Rally Software Development Corp)
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub the Company as follows:
(ai) The Stockholder (i) is the beneficial or record or beneficial owner of the shares of Company Shares Common Stock and/or Company Options indicated in Appendix A (together each of which shall be deemed to be “held” by the Stockholder for purposes of Section 3 unless otherwise expressly stated with respect to any shares in Appendix A), free and clear of any and all Liens; and (ii) the Stockholder does not beneficially own any securities of the Company Shares which such other than the shares of Company Common Stock and rights to purchase shares Company Common Stock set forth in Appendix A.
(b) With respect to any Stockholder may acquire that is an entity, the Stockholder is duly organized, validly existing and in good standing under the laws of record or the jurisdiction of its formation and is qualified to conduct its business in those jurisdictions necessary to perform this Agreement.
(c) Except as a beneficial owner) at any time otherwise provided in the future during the term of this Agreement, the “Subject Shares”Stockholder has full power, legal capacity and authority to (i) set forth opposite such Stockholder’s name on Schedule I to make, enter into and carry out the terms of this Agreement and (ii) except as vote all of its Shares in the manner set forth in Schedule I to this AgreementAgreement without the consent or approval of, does not hold or have any beneficial ownership interest in any other Company Shares action on the part of, any other person or any performance based stock units, restricted stock, deferred stock units, option entity (including any granted pursuant Governmental Entity). Without limiting the generality of the foregoing, the Stockholder has not entered into any voting agreement (other than this Agreement) with any person with respect to any Company Stock Plan)of the Stockholder’s Shares, granted any person any proxy (revocable or warrant irrevocable) or power of attorney with respect to acquire Company any of the Stockholder’s Shares, deposited any of the Stockholder’s Shares in a voting trust or other entered into any arrangement or agreement with any person limiting or affecting the Stockholder’s legal power, authority or right or security convertible into or exercisable or exchangeable for Company Sharesto vote the Stockholder’s Shares on any matter contemplated by this Agreement.
(b) The Stockholder has the legal capacity to execute and deliver this Agreement and to consummate the transactions contemplated hereby.
(cd) This Agreement has been duly and validly executed and delivered by the Stockholder andand (assuming the due authorization, assuming this Agreement execution and delivery by the other parties hereto) constitutes a valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability subject to (ia) may be limited by applicable Laws of general application relating to bankruptcy, insolvency, reorganization, moratorium insolvency and other similar laws affecting or relating to creditors’ rights generally the relief of debtors and (iib) is subject to rules of law governing specific performance, injunctive relief and other equitable remedies and general principles of equity.
(d) Neither the remedies. The execution and delivery of this Agreement nor by the consummation Stockholder and the performance by the Stockholder of the transactions contemplated hereby agreements and obligations hereunder will violate, conflict with, or not result in the any breach or violation of or be in conflict with or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, under any contract, trust, commitment, agreement, or other instrument term of any kind Contract or if applicable any provision of an organizational document (including a certificate of incorporation) to or by which such the Stockholder is a party or by bound, or any applicable law to which such the Stockholder (or any of the Stockholder’s properties assets) is subject or assets are bound. The consummation by the Stockholder of the transactions contemplated hereby will not (i) violate , except for any provision of any judgmentsuch breach, order violation, conflict or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents or approvals or to make such notifications, would notdefault which, individually or in the aggregate, prevent would not reasonably be expected to materially impair or materially delay adversely affect the performance by such Stockholder of any of Stockholder’s ability to perform its obligations under this Agreement[.
(e) The execution, delivery and (z) the execution performance of this Agreement by the Stockholder’s spouse.]
(e) The Subject Shares Stockholder do not and the certificateswill not require any consent, if anyapproval, representing the Subject Shares owned by the Stockholder are nowauthorization or permit of, and at all times during the term hereof will beaction by, held by such Stockholderfiling with or notification to, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”)Governmental Entity, except for (i) any such Encumbrances arising hereunder consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain, individually or in the aggregate, has not and would not materially impair the Stockholder’s ability to perform its obligations under this Agreement.
(in connection therewith f) The Stockholder has had the opportunity to review the Merger Agreement and this Agreement with counsel of the Stockholder’s own choosing. The Stockholder has had an opportunity to review with its own tax advisors the tax consequences of the Merger and the other Contemplated Transactions. The Stockholder understands that it must rely solely on its advisors and not on any restrictions on transfer statements or representations made by Parent, the Company or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings of their respective agents or arrangements which represent a financial interest in cash received upon sale of the Subject Shares, (iii) any risk of forfeiture representatives with respect to any the tax consequences of the Merger and the other Contemplated Transactions. The Stockholder understands that such Stockholder (and not Parent, the Company Shares granted to or the Surviving Corporation) shall be responsible for such Stockholder’s tax liability that may arise as a result of the Merger or the other Contemplated Transactions. The Stockholder under an employee benefit plan of understands and acknowledges that the Company, Parent and Merger Sub are entering into the Merger Agreement in reliance upon the Stockholder’s execution, delivery and performance of this Agreement.
(ivg) Encumbrances imposed by federal With respect to the Stockholder, as of the date hereof, there is no action, suit, investigation or state securities laws proceeding pending against, or, to the knowledge of the Stockholder, threatened against, the Stockholder or any of the Stockholder’s properties or assets (collectively, “Permitted Encumbrances”)including the Shares) that would reasonably be expected to prevent or materially delay or impair the ability of the Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby.
Appears in 2 contracts
Samples: Company Stockholder Support Agreement (Aerovate Therapeutics, Inc.), Merger Agreement (Aerovate Therapeutics, Inc.)
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub the Company as to itself only as follows:
(a) The Stockholder is the only record and “beneficial owner” (within the meaning of Rule 13d-3 under the Exchange Act) of, and has good, valid and marketable title to, the Subject Shares, free and clear of Liens other than as created by, or by which the Subject Shares are subject pursuant to, (i) is this Agreement, (ii) the Company’s certificate of incorporation, (iii) the Company’s bylaws, (iv) applicable Securities Laws. As of the date hereof, other than the Subject Shares, the Stockholder does not own of record or beneficial owner any shares of capital stock of the Company Shares (together with any Company Shares which such Stockholder may acquire of record or as a beneficial owner) at any time in the future during the term of this Agreement, the “Subject Shares”) set forth opposite such Stockholder’s name on Schedule I to this Agreement and (ii) except as set forth in Schedule I to this Agreement, does not hold or have any beneficial ownership interest in any other Company Shares or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan), or warrant to acquire Company Shares or other right or security securities convertible into shares of capital stock of the Company) or exercisable or exchangeable for Company Sharesany interest therein.
(b) The Stockholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein that the Stockholder is obligated to take, in each case, with respect to the Subject Shares, (ii) has not entered into any voting agreement or voting trust with respect to any of the Subject Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of the Subject Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would reasonably be expected to interfere with, or prohibit or prevent Stockholder from satisfying, its obligations pursuant to this Agreement.
(c) If the Stockholder is not an individual, the Stockholder (i) is a legal capacity entity duly organized, validly existing and, to execute the extent such concept is applicable, in good standing under the Laws of the jurisdiction of its organization, and (ii) 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 consummate the transactions contemplated hereby.
(c) . This Agreement has been validly duly executed and delivered by the Stockholder and, assuming this Agreement and constitutes a legally valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws Laws affecting or relating to creditors’ rights generally and (ii) is subject subject, as to rules of law governing specific performanceenforceability, injunctive relief and other equitable remedies and to general principles of equity. If the Stockholder is not an individual, the individual signing this Agreement on behalf of the Stockholder has the authority to execute and deliver this Agreement on behalf of the Stockholder. The Stockholder has taken all necessary action to authorize the execution, delivery and performance of this Agreement by the Stockholder.
(d) Neither Other than the execution filings, notices and reports pursuant to, in compliance with or required to be made under the Exchange Act, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of waiting periods or authorizations are required to be obtained by the Stockholder from, or to be given by the Stockholder to, or be made by the Stockholder with, any Governmental Entity in connection with the execution, delivery and performance by the Stockholder of this Agreement nor or the consummation of the transactions contemplated hereby.
(e) The execution, delivery and performance of this Agreement by the Stockholder do not, and the consummation by the Stockholder of the transactions contemplated hereby will violatenot, conflict with, constitute or result in the (i) a breach of or constitute violation of, or a default under, the limited liability company agreement or similar governing documents of the Stockholder, (ii) with or an event which with notice or without notice, lapse of time or both would become both, a defaultbreach or violation of, a termination (or right of termination) of or a default under, or result in the termination ofloss of any benefit under, or accelerate the performance required bycreation, or result in a right of termination modification or acceleration under, any contract, trust, commitment, agreement, or other instrument of any kind to which such Stockholder is obligations under or the creation of a party or by which such Stockholder’s properties Lien on any of the properties, rights or assets are bound. The consummation by of the Stockholder pursuant to any Contract binding upon the Stockholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby will not hereby), compliance with the matters referred to in Section 5(d), under any applicable Law to which the Stockholder is subject or (iiii) violate any provision change in the rights or obligations of any judgmentparty under any Contract legally binding upon the Stockholder, order or decree applicable to such Stockholder or except, in the case of clause (ii) require any consentor (iii) directly above, approval, or notice under any statute, law, rule or regulation applicable as would not reasonably be expected to such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents or approvals or to make such notifications, would not, individually or in the aggregate, prevent or materially delay or impair the Stockholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby.
(f) As of the date of this Agreement, there is no action, proceeding or investigation pending against the Stockholder or, to the knowledge of the Stockholder, threatened against the Stockholder, in any case, that challenges the beneficial or record ownership of the Stockholder’s Subject Shares, the validity of this Agreement or the performance by such the Stockholder of any of its obligations under this Agreement[, .
(g) The Stockholder understands and (z) acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement and the representations, warranties, covenants and other agreements of the Stockholder contained herein.
(h) No investment banker, broker, finder or other intermediary is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which Parent or the Company is or will be liable in connection with the transactions contemplated hereby based upon Contracts entered into by the Stockholder’s spouse.]
(e) The Subject Shares and the certificates, if any, representing the Subject Shares owned by the Stockholder are now, and at all times during the term hereof will be, held by such Stockholder, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale of the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”).
Appears in 2 contracts
Samples: Merger Agreement (Big Cypress Acquisition Corp.), Support Agreement (Big Cypress Acquisition Corp.)
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub the Company as follows:
(a) The Stockholder (i) is the record or beneficial owner of the Company Shares (together with any Company Shares which such Stockholder may acquire of record or as a beneficial owner) at any time in the future during the term of this Agreement, the “Subject Shares”) set forth opposite such Stockholder’s name on Schedule I to this Agreement has all requisite power and (ii) except as set forth in Schedule I to this Agreement, does not hold or have any beneficial ownership interest in any other Company Shares or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan), or warrant to acquire Company Shares or other right or security convertible into or exercisable or exchangeable for Company Shares.
(b) The Stockholder has the legal capacity authority to execute and deliver this Agreement and to consummate perform the transactions contemplated hereby.
(c) Stockholder’s obligations under this Agreement. The execution, delivery and performance of this Agreement have been duly authorized by the Stockholder. This Agreement has been validly duly executed and delivered by the Stockholder and, assuming this Agreement constitutes a valid and binding obligation of Parent and Merger Subthe Company, constitutes the a valid and binding obligation of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability subject to (i) may be limited by applicable laws of general application relating to bankruptcy, insolvencyinsolvency and the relief of debtors, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally and (ii) is subject to rules of law governing specific performance, injunctive relief and other equitable remedies and general principles of equity.
(d) Neither the execution and delivery of this Agreement nor the consummation by the Stockholder remedies. The failure of the transactions contemplated hereby will violate, conflict with, or result in the breach of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, any contract, trust, commitment, agreement, or other instrument of any kind to which such Stockholder is a party or by which such Stockholder’s properties or assets are bound. The consummation by the Stockholder of the transactions contemplated hereby will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents or approvals or to make such notifications, would not, individually or in the aggregate, prevent or materially delay the performance by such Stockholder of any of its obligations under this Agreement[, and (z) the execution of this Agreement by the Stockholder’s spouse.]
(e) The Subject Shares and the certificates, if any, of the Stockholder to be a party or signatory to this Agreement shall not (x) prevent the Stockholder from performing the Stockholder’s obligations contemplated hereunder or (y) prevent this Agreement from constituting the legal, valid and binding obligation of the Stockholder in accordance with its terms.
(b) The Securities and the certificates (or any book-entry notations used to represent any uncertificated shares of Parent Common Stock) representing the Subject Shares owned by the Stockholder Securities are now, and at all times during the term hereof will be, held by such the Stockholder, or by a nominee or custodian for the benefit of such the Stockholder, and the Stockholder or by has valid title to the depository under the OfferSecurities, free and clear of all liens, claims, security interests, proxies, any Liens (including voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”and voting commitments), except as would not limit the Stockholder’s ability to vote the Securities in the manner provided herein and except as provided by this Agreement. As of the date of this Agreement, the Stockholder does not own of record or beneficially any securities of Parent, or any options, warrants or rights exercisable for securities of Parent, other than the Securities set forth on Exhibit A hereto. The Stockholder has full power to vote the Securities as provided herein. Neither the Stockholder nor any of the Securities is subject to any voting trust, proxy or other agreement, arrangement or restriction with respect to the voting or disposition of the Securities, except as would not limit the Stockholder’s ability to vote the Securities in the manner provided herein and except as otherwise contemplated by this Agreement or the Merger Agreement.
(c) (i) No filing with, and no permit, authorization, consent or approval of any such Encumbrances arising hereunder (in connection therewith any restrictions state, federal or foreign governmental authority is necessary on transfer or any other Encumbrances have been waived the part of the Stockholder for the execution and delivery of this Agreement by appropriate consent), the Stockholder and the performance by the Stockholder of the Stockholder’s obligations under this Agreement and (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale neither the execution and delivery of this Agreement by the Stockholder nor the performance by the Stockholder of the Subject SharesStockholder’s obligations under this Agreement nor compliance by the Stockholder with any of the provisions hereof shall (x) result in the creation of an encumbrance on any of the Securities or (y) violate any order, (iii) any risk of forfeiture with respect to any Company Shares granted writ, injunction, decree, statute, rule or regulation applicable to the Stockholder under an employee benefit plan or any of the CompanySecurities, except in the case of (x) or (y) for violations, breaches or defaults that would not in the aggregate materially impair the ability of the Stockholder to perform its obligations hereunder.
(d) As of the date hereof, there is no Action pending or, to the knowledge of the Stockholder, threatened against or affecting the Stockholder’s and/or any of its Affiliates before or by any Governmental Authority that would reasonably be expected to impair the ability of the Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby in a timely manner.
(e) The Stockholder understands and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”)acknowledges that the Company is entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement.
Appears in 2 contracts
Samples: Voting Agreement (Entropic Communications Inc), Voting Agreement (Maxlinear Inc)
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub the Company as follows:
(ai) The Stockholder (i) is the beneficial or record or beneficial owner of the Company Shares shares of Magenta Common Stock indicated in Appendix A (together each of which shall be deemed to be “held” by the Stockholder for purposes of Section 3 unless otherwise expressly stated with respect to any Company Shares which such shares in Appendix A), free and clear of any and all Liens; and (ii) the Stockholder may acquire does not beneficially own any securities of record or Magenta other than the shares of Magenta Common Stock and rights to purchase shares Magenta Common Stock set forth in Appendix A.
(b) Except as a beneficial owner) at any time otherwise provided in the future during the term of this Agreement, the “Subject Shares”Stockholder has full power and authority to (i) set forth opposite such Stockholder’s name on Schedule I to make, enter into and carry out the terms of this Agreement and (ii) except as vote all of its Shares in the manner set forth in Schedule I to this AgreementAgreement without the consent or approval of, does not hold or have any beneficial ownership interest in any other Company Shares action on the part of, any other person or any performance based stock units, restricted stock, deferred stock units, option entity (including any granted pursuant Governmental Authority). Without limiting the generality of the foregoing, the Stockholder has not entered into any voting agreement (other than this Agreement) with any person with respect to any Company Stock Plan)of the Stockholder’s Shares, granted any person any proxy (revocable or warrant irrevocable) or power of attorney with respect to acquire Company any of the Stockholder’s Shares, deposited any of the Stockholder’s Shares in a voting trust or other entered into any arrangement or agreement with any person limiting or affecting the Stockholder’s legal power, authority or right or security convertible into or exercisable or exchangeable for Company Shares.
(b) The Stockholder has to vote the legal capacity to execute and deliver this Agreement and to consummate the transactions contemplated herebyStockholder’s Shares on any matter.
(c) This Agreement has been duly and validly executed and delivered by the Stockholder andand (assuming the due authorization, assuming this Agreement execution and delivery by the other parties hereto) constitutes a valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally and (ii) is subject to rules of law governing specific performance, injunctive relief and other equitable remedies and general principles of equity.
(d) Neither the Enforceability Exceptions. The execution and delivery of this Agreement nor by the consummation Stockholder and the performance by the Stockholder of the transactions contemplated hereby agreements and obligations hereunder will violate, conflict with, or not result in the any breach or violation of or be in conflict with or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, under any contract, trust, commitment, agreement, or other instrument term of any kind Contract or if applicable any provision of an organizational document (including a certificate of incorporation) to or by which such the Stockholder is a party or by bound, or any applicable law to which such the Stockholder (or any of the Stockholder’s properties assets) is subject or assets are bound. The consummation by the Stockholder of the transactions contemplated hereby will not (i) violate , except for any provision of any judgmentsuch breach, order violation, conflict or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents or approvals or to make such notifications, would notdefault which, individually or in the aggregate, prevent would not reasonably be expected to materially impair or materially delay adversely affect the performance by such Stockholder of any of Stockholder’s ability to perform its obligations under this Agreement[.
(d) The Stockholder has had the opportunity to review the Merger Agreement and this Agreement with the Stockholder’s legal counsel. The Stockholder understands and acknowledges that the Company is entering into the Merger Agreement in reliance upon the Stockholder’s execution, delivery and performance of this Agreement.
(ze) the execution The execution, delivery and performance of this Agreement by the Stockholder’s spouse.]
(e) The Subject Shares Stockholder do not and the certificateswill not require any consent, if anyapproval, representing the Subject Shares owned by the Stockholder are nowauthorization or permit of, and at all times during the term hereof will beaction by, held by such Stockholderfiling with or notification to, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”)Governmental Authority, except for (i) any such Encumbrances arising hereunder consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain, individually or in the aggregate, has not and would not materially impair the Stockholder’s ability to perform its obligations under this Agreement.
(in connection therewith f) The Stockholder has had the opportunity to review the Merger Agreement and this Agreement with counsel of the Stockholder’s own choosing. The Stockholder has had an opportunity to review with its own tax advisors the tax consequences of the Merger and the Contemplated Transactions. The Stockholder understands that it must rely solely on its advisors and not on any restrictions on transfer statements or representations made by Magenta, the Company or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings of their respective agents or arrangements which represent a financial interest in cash received upon sale of the Subject Shares, (iii) any risk of forfeiture representatives with respect to any the tax consequences of the Merger and the Contemplated Transactions. The Stockholder understands that such Stockholder (and not Magenta, the Company Shares granted to or the Surviving Corporation) shall be responsible for such Stockholder’s tax liability that may arise as a result of the Merger or the Contemplated Transactions. The Stockholder under an employee benefit plan of understands and acknowledges that the Company, Magenta and Merger Sub are entering into the Merger Agreement in reliance upon the Stockholder’s execution, delivery and performance of this Agreement.
(ivg) Encumbrances imposed by federal With respect to the Stockholder, as of the date hereof, there is no action, suit, investigation or state securities laws proceeding pending against, or, to the knowledge of the Stockholder, threatened against, the Stockholder or any of the Stockholder’s properties or assets (collectively, “Permitted Encumbrances”)including the Shares) that would reasonably be expected to prevent or materially delay or impair the ability of the Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby.
Appears in 2 contracts
Samples: Merger Agreement (Magenta Therapeutics, Inc.), Stockholder Support Agreement (Magenta Therapeutics, Inc.)
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub the Company as follows:
(ai) The Stockholder (i) is the beneficial or record or beneficial owner of the Company Shares shares of Gem Common Stock indicated in Appendix A (together each of which shall be deemed to be “held” by the Stockholder for purposes of Section 3 unless otherwise expressly stated with respect to any Company Shares which such shares in Appendix A), free and clear of any and all Liens; and (ii) the Stockholder may acquire does not beneficially own any securities of record or Gem other than the shares of Gem Common Stock and rights to purchase shares Gem Common Stock set forth in Appendix A.
(b) Except as a beneficial owner) at any time otherwise provided in the future during the term of this Agreement, the “Subject Shares”Stockholder has full power and authority to (i) set forth opposite such Stockholder’s name on Schedule I to make, enter into and carry out the terms of this Agreement and (ii) except as vote all of its Shares in the manner set forth in Schedule I to this AgreementAgreement without the consent or approval of, does not hold or have any beneficial ownership interest in any other Company Shares action on the part of, any other person or any performance based stock units, restricted stock, deferred stock units, option entity (including any granted pursuant Governmental Authority). Without limiting the generality of the foregoing, the Stockholder has not entered into any voting agreement (other than this Agreement) with any person with respect to any Company Stock Plan)of the Stockholder’s Shares, granted any person any proxy (revocable or warrant irrevocable) or power of attorney with respect to acquire Company any of the Stockholder’s Shares, deposited any of the Stockholder’s Shares in a voting trust or other entered into any arrangement or agreement with any person limiting or affecting the Stockholder’s legal power, authority or right or security convertible into or exercisable or exchangeable for Company Shares.
(b) The Stockholder has to vote the legal capacity to execute and deliver this Agreement and to consummate the transactions contemplated herebyStockholder’s Shares on any matter.
(c) This Agreement has been duly and validly executed and delivered by the Stockholder andand (assuming the due authorization, assuming this Agreement execution and delivery by the other parties hereto) constitutes a valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally and (ii) is subject to rules of law governing specific performance, injunctive relief and other equitable remedies and general principles of equity.
(d) Neither the Enforceability Exceptions. The execution and delivery of this Agreement nor by the consummation Stockholder and the performance by the Stockholder of the transactions contemplated hereby agreements and obligations hereunder will violate, conflict with, or not result in the any breach or violation of or be in conflict with or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, under any contract, trust, commitment, agreement, or other instrument term of any kind Contract or if applicable any provision of an organizational document (including a certificate of incorporation) to or by which such the Stockholder is a party or by bound, or any applicable law to which such the Stockholder (or any of the Stockholder’s properties assets) is subject or assets are bound. The consummation by the Stockholder of the transactions contemplated hereby will not (i) violate , except for any provision of any judgmentsuch breach, order violation, conflict or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents or approvals or to make such notifications, would notdefault which, individually or in the aggregate, prevent would not reasonably be expected to materially impair or materially delay adversely affect the performance by such Stockholder of any of Stockholder’s ability to perform its obligations under this Agreement[.
(d) The Stockholder has had the opportunity to review the Merger Agreement and this Agreement with the Stockholder’s legal counsel. The Stockholder understands and acknowledges that the Company is entering into the Merger Agreement in reliance upon the Stockholder’s execution, delivery and performance of this Agreement.
(ze) the execution The execution, delivery and performance of this Agreement by the Stockholder’s spouse.]
(e) The Subject Shares Stockholder do not and the certificateswill not require any consent, if anyapproval, representing the Subject Shares owned by the Stockholder are nowauthorization or permit of, and at all times during the term hereof will beaction by, held by such Stockholderfiling with or notification to, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”)Governmental Authority, except for (i) any such Encumbrances arising hereunder consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain, individually or in the aggregate, has not and would not materially impair the Stockholder’s ability to perform its obligations under this Agreement.
(in connection therewith f) The Stockholder has had the opportunity to review the Merger Agreement and this Agreement with counsel of the Stockholder’s own choosing. The Stockholder has had an opportunity to review with its own tax advisors the tax consequences of the Merger and the Contemplated Transactions. The Stockholder understands that it must rely solely on its advisors and not on any restrictions on transfer statements or representations made by Gem, the Company or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings of their respective agents or arrangements which represent a financial interest in cash received upon sale of the Subject Shares, (iii) any risk of forfeiture representatives with respect to any the tax consequences of the Merger and the Contemplated Transactions. The Stockholder understands that such Stockholder (and not Gem, the Company Shares granted to or the Surviving Corporation) shall be responsible for such Stockholder’s tax liability that may arise as a result of the Merger or the Contemplated Transactions. The Stockholder under an employee benefit plan of understands and acknowledges that the Company, Gem and Merger Sub are entering into the Merger Agreement in reliance upon the Stockholder’s execution, delivery and performance of this Agreement.
(ivg) Encumbrances imposed by federal With respect to the Stockholder, as of the date hereof, there is no action, suit, investigation or state securities laws proceeding pending against, or, to the knowledge of the Stockholder, threatened against, the Stockholder or any of the Stockholder’s properties or assets (collectively, “Permitted Encumbrances”)including the Shares) that would reasonably be expected to prevent or materially delay or impair the ability of the Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby.
Appears in 2 contracts
Samples: Merger Agreement (Gemini Therapeutics, Inc. /DE), Stockholder Support Agreement (Gemini Therapeutics, Inc. /DE)
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub Partner as follows:
(ai) The Stockholder (i) is the beneficial or record or beneficial owner of the shares of Public Company Shares Common Stock indicated in Appendix A to this Agreement (together each of which shall be deemed to be “held” by the Stockholder for purposes of Section 3 unless otherwise expressly stated with respect to any shares in Appendix A), free and clear of any and all Liens; and (ii) the Stockholder does not beneficially own any securities of Public Company Shares which such Stockholder may acquire other than the shares of record or Public Company Common Stock and rights to purchase shares of Public Company Common Stock set forth in Appendix A to this Agreement.
(b) Except as a beneficial owner) at any time otherwise provided in the future during the term of this Agreement, the “Subject Shares”Stockholder has full power and authority to (i) set forth opposite such Stockholder’s name on Schedule I to make, enter into and carry out the terms of this Agreement and (ii) except as vote all of its Shares in the manner set forth in Schedule I to this AgreementAgreement without the consent or approval of, does not hold or have any beneficial ownership interest in any other Company Shares action on the part of, any other person or any performance based stock units, restricted stock, deferred stock units, option entity (including any granted pursuant Governmental Entity). Without limiting the generality of the foregoing, the Stockholder has not entered into any voting agreement (other than this Agreement) with any person with respect to any Company Stock Plan)of the Stockholder’s Shares, granted any person any proxy (revocable or warrant irrevocable) or power of attorney with respect to acquire Company any of the Stockholder’s Shares, deposited any of the Stockholder’s Shares in a voting trust or other entered into any arrangement or agreement with any person limiting or affecting the Stockholder’s legal power, authority or right or security convertible into or exercisable or exchangeable for Company Shares.
(b) The Stockholder has to vote the legal capacity to execute and deliver this Agreement and to consummate the transactions contemplated herebyStockholder’s Shares on any matter.
(c) This Agreement has been duly and validly executed and delivered by the Stockholder andand (assuming the due authorization, assuming this Agreement execution and delivery by the other parties hereto) constitutes a valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally and (ii) is subject to rules of law governing specific performance, injunctive relief the Bankruptcy and other equitable remedies and general principles of equity.
(d) Neither the Equity Exception. The execution and delivery of this Agreement nor by the consummation Stockholder and the performance by the Stockholder of the transactions contemplated hereby agreements and obligations hereunder will violate, conflict with, or not result in the any breach or violation of or be in conflict with or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, under any contract, trust, commitment, agreement, or other instrument term of any kind Contract or if applicable any provision of an organizational document (including a certificate of incorporation) to or by which such the Stockholder is a party or by bound, or any applicable law to which such the Stockholder (or any of the Stockholder’s properties assets) is subject or assets are bound. The consummation by the Stockholder of the transactions contemplated hereby will not (i) violate , except for any provision of any judgmentsuch breach, order violation, conflict or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents or approvals or to make such notifications, would notdefault which, individually or in the aggregate, prevent would not reasonably be expected to materially impair or materially delay adversely affect the performance by such Stockholder of any of Stockholder’s ability to perform its obligations under this Agreement[.
(d) The Stockholder has had the opportunity to review the Merger Agreement and this Agreement with the Stockholder’s legal counsel. The Stockholder understands and acknowledges that Merger Partner is entering into the Merger Agreement in reliance upon the Stockholder’s execution, delivery and performance of this Agreement.
(ze) the execution The execution, delivery and performance of this Agreement by the Stockholder’s spouse.]
(e) The Subject Shares Stockholder do not and the certificateswill not require any consent, if anyapproval, representing the Subject Shares owned by the Stockholder are nowauthorization or permit of, and at all times during the term hereof will beaction by, held by such Stockholderfiling with or notification to, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”)Governmental Entity, except for (i) any such Encumbrances arising hereunder consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain, individually or in the aggregate, has not and would not materially impair the Stockholder’s ability to perform its obligations under this Agreement.
(in connection therewith any restrictions on transfer f) With respect to the Stockholder, as of the date hereof, there is no action, suit, investigation or proceeding pending against, or, to the knowledge of the Stockholder, threatened against, the Stockholder or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale of the Subject Stockholder’s properties or assets (including the Shares, (iii) any risk that would reasonably be expected to prevent or materially delay or impair the ability of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of to perform its obligations hereunder or to consummate the Company, and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”)transactions contemplated hereby.
Appears in 2 contracts
Samples: Merger Agreement (Arsanis, Inc.), Support Agreement (Arsanis, Inc.)
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub as to itself as follows, provided, however, that Parent acknowledges and agrees that the Stockholder makes no representations or warranties with respect to any shares of Company Common Stock required to be Transferred in connection with a Permitted Redemption from and after the date of such Transfer:
(a) The Stockholder (i) is the record or a beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) and the only record owner of, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement or arising in connection with a Permitted Redemption. As of the Company Shares (together with date hereof, other than the Owned Shares, the Stockholder does not own beneficially or of record any Company Shares which such Stockholder may acquire of record or as a beneficial owner) at any time in the future during the term of this Agreement, the “Subject Shares”) set forth opposite such Stockholder’s name on Schedule I to this Agreement and Securities (ii) except as set forth in Schedule I to this Agreement, does not hold or have any beneficial ownership interest in any other Company Shares or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan), or warrant to acquire Company Shares or other right or security securities convertible into Company Securities) or exercisable or exchangeable for Company Sharesany interest therein.
(b) The Stockholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to the Stockholder’s Covered Shares, (ii) has not entered into any voting agreement or arrangement or voting trust with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement, (iii) has not granted a proxy, power of attorney or other authorization or consent with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement and (iv) has not entered into any Contract or other undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement.
(c) The Stockholder (i) is a legal capacity entity duly organized, validly existing and, to execute the extent such concept is applicable, in good standing under the Laws of the jurisdiction of its organization, and (ii) 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 consummate the transactions contemplated hereby.
(c) . This Agreement has and the Stockholder Consent have been validly duly executed and delivered by the Stockholder and, assuming this Agreement constitutes a valid and binding obligation of Parent and Merger Sublegal, constitutes the valid and binding obligation of the Stockholderother parties hereto and thereto, constitute a valid and binding agreement of the Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally and (ii) is subject to rules the Bankruptcy and Equity Exceptions. The Stockholder has provided to Parent a true and correct excerpt of law governing specific performanceeach provision of the Second Amended and Restated Limited Liability Company Agreement of the Stockholder dated as of September 15, injunctive relief and other equitable remedies and general principles of equity2019, as amended (the “Stockholder Limited Liability Company Agreement”) that creates a Lien on any Covered Share.
(d) Neither Other than the execution filings, notices and delivery reports pursuant to, in compliance with or required to be made under the Exchange Act, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of this Agreement nor the consummation waiting periods or authorizations are required to be obtained by the Stockholder from, or to be given by the Stockholder to, or be made by the Stockholder with, any Governmental Entity in connection with the execution, delivery and performance by the Stockholder of this Agreement, the consummation of the transactions contemplated hereby will violateor the Merger and the other transactions contemplated by the Merger Agreement.
(e) The execution, conflict with, or result in delivery and performance of this Agreement and the breach of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, any contract, trust, commitment, agreement, or other instrument of any kind to which such Stockholder is a party or by which such Stockholder’s properties or assets are bound. The consummation Consent by the Stockholder do not, and the consummation of the transactions contemplated hereby and by the Stockholder Consent, and the Merger and the other transactions contemplated by the Merger Agreement will not not, constitute or result in (i) violate any provision a breach or violation of, or a default under, the certificate of any judgmentincorporation, order bylaws or decree applicable to such Stockholder or comparable organizational documents of the Stockholder, (ii) require with or without notice, lapse of time or both, a breach or violation of a termination (or right of termination) of or a default under, the loss of any consentbenefit under, approvalthe creation, modification, cancellation or notice acceleration (or the right of modification, cancellation or acceleration) of any obligations under or the creation of a Lien on any of the properties, rights or assets (including the Covered Shares) of the Stockholder pursuant to any Contract binding upon the Stockholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 4(d), under any statuteapplicable Law, lawrule, rule regulation, order, judgment or regulation applicable decree to which the Stockholder is subject or (iii) any change in the rights or obligations of any party under any Contract legally binding upon the Stockholder, except, in the case of clause (ii) or (iii) directly above, for any such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents breach, violation, termination, default, creation, acceleration or approvals or to make such notifications, change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair the Stockholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger or the other transactions contemplated by the Merger Agreement.
(f) As of the date of this Agreement, there is no Action pending against the Stockholder or, to the knowledge of the Stockholder, threatened against the Stockholder that questions the beneficial or record ownership of the Stockholder’s Owned Shares or the validity of this Agreement, or that could reasonably be expected to prevent or materially delay the performance by such Stockholder of any of Stockholder’s ability to perform its obligations under this Agreement[hereunder.
(g) No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission from the Company in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of the Stockholder.
(h) The Stockholder understands and (z) acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement by the Stockholder’s spouse.]
(e) The Subject Shares and the certificatesStockholder Consent and the representations, if anywarranties, representing the Subject Shares owned by covenants and other agreements of the Stockholder are now, and at all times during the term hereof will be, held by such Stockholder, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale of the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”)contained herein.
Appears in 2 contracts
Samples: Support Agreement (Vivint Solar, Inc.), Support Agreement (Sunrun Inc.)
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants warrants, as of the date hereof, to Parent and Merger Sub as follows:
(a) The Stockholder (i) is the record or beneficial owner of the Company Shares (together with any Company Shares which such Stockholder may acquire of record or as a beneficial owner) at any time in the future during the term of this Agreement, the “Subject Shares”) set forth opposite such Stockholder’s name on Schedule I 1 to this Agreement and (ii) except as set forth in Schedule I 1 to this Agreement, does not hold or have neither holds nor has any beneficial ownership interest in any other shares of Company Shares Common Stock or any performance based stock units, restricted stock, restricted stock units, deferred stock units, option (including any granted pursuant to any Company Stock Plan)options, or warrant to acquire Company Shares warrants or other right or security convertible into or exercisable exercisable, exchangeable or exchangeable redeemable for shares of Company SharesCommon Stock.
(b) The Stockholder has the legal capacity full power and authority to execute and deliver this Agreement and to perform Stockholder’s obligations hereunder, subject to applicable federal securities laws and the terms of this Agreement; if the Stockholder is not an individual, it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and has taken all action necessary, to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby, and no other proceedings on the part of the Stockholder are necessary to authorize this Agreement, the performance of Stockholder’s obligations hereunder and the consummation of the transactions contemplated hereby. If Stockholder is an individual, Stockholder (i) is of legal age to execute and perform this Agreement and is legally competent to do so and (ii) is either (A) not married or part of a civil union or (B) is married or part of a civil union, is a resident of a jurisdiction that does not apply community property laws or similar principles and is not a party to a community property agreement or arrangement with Stockholder’s spouse or partner.
(c) This Agreement has been validly executed and delivered by the Stockholder and, (assuming this Agreement constitutes a valid and binding obligation agreement of Parent and Merger Sub, ) has been duly executed and delivered by or on behalf of the Stockholder and constitutes the a valid and binding obligation of agreement with respect to the Stockholder, enforceable against the Stockholder in accordance with its terms, except that such enforceability subject to (i) may be limited by applicable laws of general application relating to bankruptcy, insolvencyinsolvency and the relief of debtors, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally and (ii) is subject to rules of law governing specific performance, injunctive relief and other equitable remedies and general principles of equityremedies.
(d) Neither the execution and delivery The shares of this Agreement nor the consummation by the Stockholder of the transactions contemplated hereby will violate, conflict with, or result in the breach of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, any contract, trust, commitment, agreement, or other instrument of any kind to which such Stockholder is a party or by which such Stockholder’s properties or assets are bound. The consummation by the Stockholder of the transactions contemplated hereby will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents or approvals or to make such notifications, would not, individually or in the aggregate, prevent or materially delay the performance by such Stockholder of any of its obligations under this Agreement[, and (z) the execution of this Agreement by the Stockholder’s spouse.]
(e) The Subject Shares Company Common Stock and the certificates, if any, representing the Subject Shares owned by the Stockholder are now, and at all times during the term hereof will be, now held by such Stockholder, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all any liens, claims, security interestscharges, proxies, voting trusts or agreements, optionspowers of attorney, rights (other than community property interests)of first offer or rights of first refusal, understandings voting agreement or arrangements voting trust or any other agreement, arrangement, or restriction with respect to the voting of such Shares, or other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares kind whatsoever (collectively, “EncumbrancesLiens”), and Stockholder has sole or shared, and otherwise unrestricted, voting power with respect to such Shares, except for (i) any such Encumbrances Liens arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances Liens have been waived by appropriate consent), ) and (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale of the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances Liens imposed by federal or state securities laws (collectively, “Permitted EncumbrancesLiens”).
(e) Neither the execution and delivery of this Agreement by such Stockholder nor the consummation of the transactions contemplated hereby nor compliance by such Stockholder with any provisions herein will (i) if such Stockholder is not an individual, violate, contravene or conflict with or result in any breach of any provision of the certificate of incorporation or bylaws (or other similar governing documents) of such Stockholder, (ii) violate, conflict with, or result in a breach of any provisions of, or require any consent, waiver or approval or result in a default or loss of a benefit (or give rise to any right of termination, cancellation, modification or acceleration or any event that, with or without the giving of notice, the passage of time or otherwise, would constitute a default or give rise to any such right) under any of the terms, conditions or provisions of any Contract or other legally binding instrument or obligation to which such Stockholder is a party or by which such Stockholder or any of its assets may be bound, (iii) result (or, with or without the giving of notice, the passage of time or otherwise, would result) in the creation or imposition of any Lien on any assets (including Shares) of such Stockholder (other than as created by Parent or Merger Sub) or (iv) violate any Law applicable to such Stockholder or by which any of its assets (including Shares) are bound, except, in each case, as would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on such Stockholder’s ability to timely perform its obligations under this Agreement.
(f) Stockholder understands, agrees and acknowledges the following, with respect to any of the following Equity Interests of or in the Company owned by such Stockholder, if any (i) at the Effective Time, each Out-of-the-Money Option shall be cancelled for no consideration, (ii) each Company Warrant, upon the Offer Closing Time, to the extent such Company Warrant is then outstanding and unexercised, shall automatically terminate as of immediately prior to the Offer Closing Time, (iii) each Company Restricted Stock Unit outstanding but not then vested shall become immediately vested in full; at the Effective Time, each Company Restricted Stock Unit that is then outstanding (after giving effect to such acceleration) shall be canceled and the holder thereof shall be entitled to receive an amount in cash without interest, less any applicable tax withholding, equal to the Offer Price, (iv) at the Effective Time, each Company PSU shall be cancelled for no consideration and (v) at the Effective time, except for Company Restricted Stock Units, any right to receive any Company Common Stock upon vesting whose vesting is conditioned in full or in part based on achievement of performance goals or metrics (whether of the Company or of the individual or otherwise), including any Earnout Shares, shall be cancelled for no consideration.
(g) Stockholder understands and acknowledges that Parent and Merger Sub are entering into the Merger Agreement in reliance upon Stockholder’s execution, delivery and performance of this Agreement.
(h) As of the date hereof, there is no Action pending against, or, to the knowledge of Stockholder, threatened against, Stockholder or any of Stockholder’s properties or assets (including any Shares) that would reasonably be expected to, individually or in the aggregate, have an adverse effect on Stockholder’s ability to satisfy its obligations under this Agreement or to consummate the transactions contemplated hereby or by the Merger Agreement.
(i) Stockholder has not directly engaged any broker, investment banker, financial advisor, finder, agent or other Person such that such Person is entitled to any broker’s, finder’s, financial adviser’s or other similar fee or commission in connection with this Agreement.
Appears in 2 contracts
Samples: Support Agreement (Palihapitiya Chamath), Support Agreement (Akili, Inc.)
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub Purchaser as follows:
(a) The Stockholder Each of the persons listed on Schedule I to this Agreement (each such person including the Stockholder, a “Subject Stockholder”) (i) is the record or and beneficial owner of the shares of Company Shares Common Stock (together with any shares of Company Shares Common Stock which such Subject Stockholder may acquire of record or as a beneficial owner) at any time in the future during the term of this Agreement, the “Subject Shares”) set forth opposite such Subject Stockholder’s name on Schedule I to this Agreement and (ii) except as set forth in Schedule I to this Agreement, does not hold or have any beneficial ownership interest in any other shares of Company Shares Common Stock or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any a Company Stock Equity Plan), or warrant to acquire shares of Company Shares Common Stock or other right or security convertible into or exercisable or exchangeable for shares of Company SharesCommon Stock.
(b) The Stockholder has the legal capacity to execute and deliver this Agreement and to consummate the transactions contemplated hereby.
(c) This Agreement has been validly executed and delivered by the Stockholder and, assuming this Agreement constitutes a valid and binding obligation of Parent and Merger SubPurchaser, constitutes the valid and binding obligation of the Stockholder, enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws of general application affecting or relating to enforcement of creditors’ rights generally generally, and (ii) is that the availability of the remedy of specific performance or injunctive or other forms of equitable relief may be subject to rules equitable defenses and would be subject to the discretion of law governing specific performance, injunctive relief and other equitable remedies and general principles of equitythe court before which any proceeding therefor may be brought.
(d) Neither the execution and delivery of this Agreement nor the consummation by the Stockholder of the transactions contemplated hereby will violate, conflict withresult in a violation of, or result in the breach of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration underconflict with, any contract, trust, commitment, agreement, understanding, arrangement or other instrument restriction of any kind to which such the Stockholder is a party or by which such the Stockholder or the Stockholder’s properties or assets are bound. The consummation by the Stockholder of the transactions contemplated hereby will not (i) violate any provision of any judgment, order or decree applicable to such any Subject Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such any Subject Stockholder other than (x) as required under the United States Securities Act of 1933, as amended (the “Securities Act”), the Exchange Act Act, other similar securities laws and the rules and regulations promulgated thereunder,(ythereunder and (y) where the failure to obtain such consents or approvals or to make such notifications, would not, individually or in the aggregate, prevent or materially delay the performance by such any Subject Stockholder of any of its obligations under this Agreement[, and (z) the execution of this Agreement by the Stockholder’s spouse.]
(e) The Subject Except as set forth in Section 4, the Shares and the certificates, if any, representing the Subject Shares owned by the each Subject Stockholder are now, and at all times during the term hereof will the Stockholder shall cause to be, held by such Subject Stockholder, by a nominee or custodian for the benefit of such Subject Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale of the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iviii) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”).
Appears in 2 contracts
Samples: Support Agreement (AbbVie Inc.), Support Agreement (Pharmacyclics Inc)
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent Syros and Merger Sub Tyme as follows:
(ai) The Stockholder (i) is the beneficial or record or beneficial owner of the Company Shares number of shares of Syros Common Stock indicated on the signature page of the Stockholder (together which shall be deemed to be “held” by the Stockholder for purposes of Section 3 unless otherwise expressly stated with respect to any Company Shares which such shares in); and (ii) the Stockholder may acquire does not beneficially own any securities of record or Syros other than the shares of Syros Common Stock and rights to purchase shares of Syros Common Stock set forth on the signature page of the Stockholder.
(b) Except as a beneficial owner) at any time otherwise provided in the future during the term of this Agreement, the “Subject Shares”Stockholder has full power and authority to (i) set forth opposite such Stockholder’s name on Schedule I to make, enter into and carry out the terms of this Agreement and (ii) except as vote all of its Shares in the manner set forth in Schedule I to this AgreementAgreement without the consent or approval of, does not hold or have any beneficial ownership interest in any other Company Shares action on the part of, any other person or any performance based stock units, restricted stock, deferred stock units, option entity (including any granted pursuant Governmental Entity). Without limiting the generality of the foregoing, the Stockholder has not entered into any voting agreement (other than this Agreement) with any person with respect to any Company Stock Plan)of the Stockholder’s Shares, granted any person any proxy (revocable or warrant irrevocable) or power of attorney with respect to acquire Company any of the Stockholder’s Shares, deposited any of the Stockholder’s Shares in a voting trust or other entered into any arrangement or agreement with any person limiting or affecting the Stockholder’s legal power, authority or right or security convertible into or exercisable or exchangeable for Company Shares.
(b) The Stockholder has to vote the legal capacity to execute and deliver Stockholder’s Shares on any matter, in each case that conflicts with this Agreement and to consummate the transactions contemplated herebyAgreement.
(c) This Agreement has been duly and validly executed and delivered by the Stockholder andand (assuming the due authorization, assuming this Agreement execution and delivery by the other parties hereto) constitutes a valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally and (ii) is subject to rules of law governing specific performance, injunctive relief and other equitable remedies and general principles of equity.
(d) Neither the Enforceability Exceptions. The execution and delivery of this Agreement nor by the consummation Stockholder and the performance by the Stockholder of the transactions contemplated hereby agreements and obligations hereunder will violate, conflict with, or not result in the any breach or violation of or be in conflict with or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, under any contract, trust, commitment, agreement, or other instrument term of any kind Contract or if applicable any provision of an organizational document (including a certificate of incorporation) to or by which such the Stockholder is a party or by bound, or any applicable law to which such the Stockholder (or any of the Stockholder’s properties assets) is subject or assets are bound. The consummation by the Stockholder of the transactions contemplated hereby will not (i) violate , except for any provision of any judgmentsuch breach, order violation, conflict or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents or approvals or to make such notifications, would notdefault which, individually or in the aggregate, prevent would not reasonably be expected to materially impair or materially delay adversely affect the performance by such Stockholder of any of Stockholder’s ability to perform its obligations under this Agreement[.
(d) The Stockholder has had the opportunity to review the Merger Agreement and this Agreement with the Stockholder’s legal counsel. The Stockholder understands and acknowledges that Tyme is entering into the Merger Agreement in reliance upon the Stockholder’s execution, delivery and performance of this Agreement.
(ze) the execution The execution, delivery and performance of this Agreement by the Stockholder do not and will not require any consent, approval, authorization or permit of, action by, filing with or notification to, any Governmental Authority, except for any such consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain, individually or in the aggregate, has not and would not materially impair the Stockholder’s spouseability to perform its obligations under this Agreement.]
(ef) The Subject Shares and With respect to the certificatesStockholder, if anyas of the date hereof, representing there is no action, suit, investigation or proceeding pending against, or, to the Subject Shares owned by knowledge of the Stockholder, threatened against, the Stockholder are nowor any of the Stockholder’s properties or assets (including the Shares) that would reasonably be expected to prevent or materially delay or impair the ability of the Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby.
(g) Neither the Stockholder nor any of its Representatives or Affiliates has employed or made any agreement with any broker, and at all times during finder or similar agent or any Person which will result in the term hereof will be, held by obligation of such Stockholder, by a nominee or custodian for the benefit of such Stockholder or by the depository under the OfferSyros, free and clear of all liensTyme, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances of their respective Affiliates to pay any finder’s fee, brokerage fees or restrictions whatsoever on title, transfer, commission or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (similar payment in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale of with the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”)transactions contemplated hereby.
Appears in 2 contracts
Samples: Support Agreement (Syros Pharmaceuticals, Inc.), Support Agreement (Tyme Technologies, Inc.)
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub BRPA as to itself as follows:
(a) The Stockholder (i) is the only record or and a beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement and Permitted Liens. As of the date hereof, other than the Owned Shares, the Stockholder does not own beneficially or of record any shares of capital stock of the Company Shares (together with any Company Shares which such Stockholder may acquire of record or as a beneficial owner) at any time in the future during the term of this Agreement, the “Subject Shares”) set forth opposite such Stockholder’s name on Schedule I to this Agreement and (ii) except as set forth in Schedule I to this Agreement, does not hold or have any beneficial ownership interest in any other Company Shares or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan), or warrant to acquire Company Shares or other right or security securities convertible into or exercisable or exchangeable for Company Sharesshares of capital stock of the Company).
(b) The Stockholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to the Stockholder’s Covered Shares, (ii) has not entered into any voting agreement or voting trust with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this 4 NTD: To be included if the Stockholder holds Company Preferred Stock. Agreement and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement.
(c) [The Stockholder (i) is a legal capacity entity duly organized, validly existing and, to execute the extent such concept is applicable, in good standing under the laws of the jurisdiction of its organization, and (ii) 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 consummate the transactions contemplated hereby.
(c) hereby.]5 This Agreement has been validly duly executed and delivered by the Stockholder and, assuming this Agreement and constitutes a valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally and (ii) is subject subject, as to rules of law governing specific performanceenforceability, injunctive relief and other equitable remedies and to general principles of equity.
(d) Neither Other than the execution filings, notices and delivery reports pursuant to, in compliance with or required to be made under the Exchange Act, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of this Agreement nor the consummation waiting periods or authorizations are required to be obtained by the Stockholder from, or to be given by the Stockholder to, or be made by the Stockholder with, any Governmental Entity in connection with the execution, delivery and performance by the Stockholder of this Agreement, the consummation of the transactions contemplated hereby will violateor the Merger and the other Transactions.
(e) The execution, conflict with, or result in the breach delivery and performance of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, any contract, trust, commitment, agreement, or other instrument of any kind to which such Stockholder is a party or by which such Stockholder’s properties or assets are bound. The consummation this Agreement by the Stockholder do not, and the consummation of the transactions contemplated hereby or the Merger and the other Transactions will not not, constitute or result in [(i) violate any provision a breach or violation of, or a default under, the limited liability company agreement or similar governing documents of any judgment, order or decree applicable to such Stockholder or the Stockholder,]6 (ii) require with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss of any consentbenefit under, approvalthe creation, modification or notice acceleration of any obligations under or the creation of a Lien on any of the properties, rights or assets of the Stockholder pursuant to any Contract binding upon the Stockholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 4(d), under any statuteapplicable law to which the Stockholder is subject or (iii) any change in the rights or obligations of any party under any Contract legally binding upon the Stockholder, lawexcept, rule in the case of clause (ii) or regulation applicable to (iii) directly above, for any such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents breach, violation, termination, default, creation, acceleration or approvals or to make such notifications, change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair the Stockholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger or the other Transactions.
(f) As of the date of this Agreement, there is no action, proceeding or investigation pending against the Stockholder or, to the knowledge of the Stockholder, threatened against the Stockholder that questions the beneficial or record ownership of the Stockholder’s Owned Shares, the validity of this Agreement or the performance by such the Stockholder of any of its obligations under this Agreement[, .
(g) The Stockholder understands and (z) acknowledges that BRPA is entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement and the representations, warranties, covenants and other agreements of the Stockholder contained herein.
(h) No investment banker, broker, finder or other intermediary is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which BRPA or the Company is or will be liable in connection with the transactions contemplated hereby based upon arrangements made by or, to the knowledge of the Stockholder’s spouse.]
(e) The Subject Shares and , on behalf of the certificates, Stockholder. 6 NTD: To be included if any, representing the Subject Shares owned by the Stockholder are now, and at all times during the term hereof will be, held by such Stockholder, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale of the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under is an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”).entity
Appears in 2 contracts
Samples: Agreement and Plan of Merger (BRAC Lending Group LLC), Merger Agreement (Big Rock Partners Sponsor, LLC)
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub the Company as to itself as follows:
(a) The Stockholder (i) is the record or a beneficial owner and the only record owner of, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement. As of the Company Shares (together with any Company Shares which such date hereof, other than the Owned Shares, the Stockholder may acquire does not own beneficially or of record or as a beneficial owner) at any time in the future during the term of this Agreement, the “Subject Shares”) set forth opposite such Stockholder’s name on Schedule I to this Agreement and Parent Securities (ii) except as set forth in Schedule I to this Agreement, does not hold or have any beneficial ownership interest in any other Company Shares or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan), or warrant to acquire Company Shares or other right or security securities convertible into Parent Securities) or exercisable or exchangeable for Company Sharesany interest therein.
(b) The Stockholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to the Stockholder’s Covered Shares, (ii) has not entered into any voting agreement or arrangement or voting trust with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement, (iii) has not granted a proxy, power of attorney or other authorization or consent with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement and (iv) has not entered into any Contract or other undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement.
(c) The Stockholder (i) is a legal capacity entity duly organized, validly existing and, to execute the extent such concept is applicable, in good standing under the Laws of the jurisdiction of its organization, and (ii) 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 consummate the transactions contemplated hereby.
(c) . This Agreement has been validly duly executed and delivered by the Stockholder and, assuming this Agreement constitutes a valid and binding obligation of Parent and Merger Sublegal, constitutes the valid and binding obligation of the Stockholderother parties hereto, constitutes a valid and binding agreement of the Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally and (ii) is subject to rules of law governing specific performance, injunctive relief the Bankruptcy and other equitable remedies and general principles of equityEquity Exceptions.
(d) Neither Other than the execution filings, notices and reports pursuant to, in compliance with or required to be made under the Exchange Act, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of waiting periods or authorizations are required to be obtained by the Stockholder from, or to be given by the Stockholder to, or be made by the Stockholder with, any Governmental Entity in connection with the execution, delivery of this Agreement nor the consummation and performance by the Stockholder of this Agreement.
(e) The execution, delivery and performance of this Agreement by the transactions contemplated hereby Stockholder does not and will violate, conflict with, not constitute or result in the (i) a breach of or constitute violation of, or a default under, the limited liability company agreement or similar governing documents of the Stockholder, (ii) with or an event which with notice or without notice, lapse of time or both would become both, a defaultbreach or violation of a termination (or right of termination) of or a default under, the loss of any benefit under, the creation, modification, cancellation or result in acceleration (or the termination of, or accelerate the performance required by, or result in a right of termination modification, cancellation or acceleration under, any contract, trust, commitment, agreement, or other instrument acceleration) of any kind to which such Stockholder is obligations under or the creation of a party or by which such Stockholder’s properties Lien on any of the properties, rights or assets are bound. The consummation by (including the Covered Shares) of the Stockholder pursuant to any Contract binding upon the Stockholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby will not hereby), compliance with the matters referred to in Section 4(d), under any applicable Law, rule, regulation, order, judgment or decree to which the Stockholder is subject or (iiii) violate any provision change in the rights or obligations of any judgmentparty under any Contract legally binding upon the Stockholder, order or decree applicable to such Stockholder or except, in the case of clause (ii) require or (iii) directly above, for any consentsuch breach, approvalviolation, termination, default, creation, acceleration or notice under any statute, law, rule or regulation applicable to such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents or approvals or to make such notifications, change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair the Stockholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger or the other transactions contemplated by the Merger Agreement.
(f) As of the date of this Agreement, there is no action pending against the Stockholder or, to the knowledge of the Stockholder, threatened against the Stockholder that questions the beneficial or record ownership of the Stockholder’s Owned Shares or the validity of this Agreement, or that could reasonably be expected to prevent or materially delay the performance by such Stockholder of any of Stockholder’s ability to perform its obligations under this Agreement[hereunder.
(g) No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission from the Company in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of the Stockholder.
(h) The Stockholder understands and (z) acknowledges that the Company is entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement by the Stockholder’s spouse.]
(e) The Subject Shares and the certificatesrepresentations, if anywarranties, representing the Subject Shares owned by covenants and other agreements of the Stockholder are now, and at all times during the term hereof will be, held by such Stockholder, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale of the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”)contained herein.
Appears in 2 contracts
Samples: Support Agreement (Sunrun Inc.), Support Agreement (Vivint Solar, Inc.)
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent Merger Partner and Merger Sub Public Company as follows:
(ai) The Stockholder (iA) is the beneficial or record or beneficial owner of the Company Shares shares of Merger Partner Capital Stock indicated in Appendix A (together each of which shall be deemed to be “held” by the Stockholder for purposes of Section 4 unless otherwise expressly stated with respect to any Company Shares which such Stockholder shares in Appendix A), free and clear of any and all Liens (other than any Liens that may acquire exist pursuant to the Shareholder Agreements or applicable securities laws) and (B) does not beneficially own any securities of record or Merger Partner other than the shares of Merger Partner Capital Stock and rights to purchase shares of Merger Partner Capital Stock set forth in Appendix A.
(ii) Except as a beneficial owner) at any time otherwise provided in the future during the term of this Agreement, the “Subject Shares”Stockholder has full power and authority to (A) set forth opposite such Stockholder’s name on Schedule I to make, enter into and carry out the terms of this Agreement and (iiB) except as vote all of its Shares in the manner set forth in Schedule I to this AgreementAgreement without the consent or approval of, does not hold or have any beneficial ownership interest in any other Company Shares action on the part of, any other person or any performance based stock units, restricted stock, deferred stock units, option entity (including any granted pursuant Governmental Entity). Without limiting the generality of the foregoing, the Stockholder has not entered into any voting agreement (other than this Agreement and the Voting Agreement) with any person with respect to any Company Stock Plan)of the Stockholder’s Shares, granted any person any proxy (revocable or warrant irrevocable) or power of attorney with respect to acquire Company any of the Stockholder’s Shares, pledged or disposed of any of the Stockholder’s Shares, deposited any of the Stockholder’s Shares in a voting trust or other entered into any arrangement or agreement with any person limiting or affecting the Stockholder’s legal power, authority or right or security convertible into or exercisable or exchangeable for Company Sharesto vote the Stockholder’s Shares on any matter.
(b) The Stockholder has the legal capacity to execute and deliver this Agreement and to consummate the transactions contemplated hereby.
(ciii) This Agreement has been duly and validly executed and delivered by the Stockholder andand (assuming the due authorization, assuming this Agreement execution and delivery by the other parties hereto) constitutes a valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability subject to the Bankruptcy and Equity Exception. If (i) may be limited by applicable bankruptcythe Stockholder is a corporation, insolvencypartnership or other investment or business entity, reorganizationthe Stockholder is duly organized, moratorium validly existing and other similar laws affecting or relating to creditors’ rights generally in good standing under the Laws of the jurisdiction in which it is organized, and (ii) is subject to rules of law governing specific performancethe execution, injunctive relief delivery and other equitable remedies and general principles of equity.
(d) Neither the execution and delivery performance of this Agreement nor by the Stockholder and the consummation by the Stockholder of the transactions contemplated hereby are within the corporate power and capacity of the Stockholder and have been duly authorized by all necessary corporate action of the Stockholder and (ii) the Stockholder is an individual, the signature on this Agreement is genuine, and the Stockholder has full power and authority and legal competence and capacity to execute this Agreement, to perform fully the Stockholder’s obligations hereunder, and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by the Stockholder and the performance by the Stockholder of the agreements and obligations hereunder will violate, conflict with, or not result in the any breach or violation of or be in conflict with or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, under any contract, trust, commitment, agreement, or other instrument term of any kind Contract or if applicable any provision of an organizational document (including a certificate of incorporation) to or by which such the Stockholder is a party or by bound, or any applicable law to which such Stockholder’s properties or assets are bound. The consummation by the Stockholder of the transactions contemplated hereby will not (i) violate is subject or bound, except for any provision of any judgmentsuch breach, order violation, conflict or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents or approvals or to make such notifications, would notdefault which, individually or in the aggregate, prevent would not reasonably be expected to materially impair or materially delay adversely affect the performance by such Stockholder of any of Stockholder’s ability to perform its obligations under this Agreement[.
(iv) The Stockholder has had the opportunity to discuss the Merger Agreement, this Agreement and the transactions contemplated hereby and thereby with the Stockholder’s legal counsel. The Stockholder understands and acknowledges that Public Company is entering into the Merger Agreement in reliance upon the Stockholder’s execution, delivery and performance of this Agreement.
(zv) the execution The execution, delivery and performance of this Agreement by the Stockholder do not and will not require any consent, approval, authorization or permit of, action by, filing with or notification to, any Governmental Entity, except for any such consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain, individually or in the aggregate, has not and would not materially impair the Stockholder’s spouseability to perform its obligations under this Agreement.]
(evi) The Subject Shares and As of the certificatesdate hereof, if anythere is no action, representing suit, investigation or proceeding (whether judicial, arbitral, administrative, or otherwise) pending against, or, to the Subject Shares owned by knowledge of the Stockholder, threatened against, the Stockholder are nowor any of the Stockholder’s properties or assets (including the Shares) that would reasonably be expected to prevent or materially delay or impair the ability of the Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby.
(vii) Neither the Stockholder nor any of its Representatives or Affiliates (excluding, and at all times during for the term hereof avoidance of doubt, Xxxxxx Partner) has employed or made any agreement with any broker, finder or similar agent or any Person which will be, held by result in the obligation of such Stockholder, by a nominee or custodian for the benefit of such Stockholder or by the depository under the OfferPublic Company, free and clear of all liensMerger Partner, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances of their respective Affiliates to pay any finder’s fee, brokerage fees or restrictions whatsoever on title, transfer, commission or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (similar payment in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale of with the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”)transactions contemplated hereby.
Appears in 2 contracts
Samples: Merger Partner Support Agreement (Pieris Pharmaceuticals, Inc.), Merger Partner Support Agreement (Pieris Pharmaceuticals, Inc.)
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub Purchaser as follows:
(a) The As of the date hereof, the Stockholder (i) is the record or beneficial owner of the Company Shares (together with any Company Shares which such Stockholder may acquire of record or as a beneficial owner) at any time in the future during the term of this Agreement, the “Subject Shares”) set forth opposite such the Stockholder’s name on Schedule I to this Agreement and (ii) except as set forth in Schedule I to this Agreement, does not hold or have any record or beneficial ownership interest in any other Company Shares or hold any performance shares of restricted stock, performance-based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan), or warrant options to acquire Company Shares Shares, warrants or other right rights or security securities convertible into or exercisable or exchangeable for Company Shares.
(b) The Such Stockholder has the legal capacity capacity, right and authority to execute execute, deliver and deliver perform this Agreement and to consummate the transactions contemplated hereby.
(c) This Agreement has been duly and validly executed and delivered by the Stockholder and, assuming this Agreement constitutes a legal, valid and binding obligation of Parent and Merger SubPurchaser, constitutes the legal, valid and binding obligation of the Stockholder, enforceable against the Stockholder in accordance with its terms, except that such enforceability subject to (i) may be limited by applicable laws of general application relating to bankruptcy, insolvency, reorganization, moratorium insolvency and other similar laws affecting or relating to creditors’ rights generally the relief of debtors and (ii) is subject to rules of law governing specific performance, injunctive relief and other equitable remedies and general principles of equityremedies.
(d) Neither the execution and delivery of this Agreement by the Stockholder nor the consummation by the Stockholder of the transactions contemplated hereby will violate, conflict with, or result in the breach of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination termination, cancellation or acceleration under, or result in the creation of any contractEncumbrance on any of the Subject Shares, trust, commitment, agreement, or other instrument pursuant to any Contract of any kind to which such the Stockholder is a party or by which such the Stockholder’s properties or assets (including the Subject Shares) are bound. The consummation by the Stockholder of the transactions contemplated hereby will not (i) violate any provision of any judgment, order order, writ, stipulation, settlement, award or decree applicable to such the Stockholder or his Subject Shares or (ii) require any consent, approval, or notice under any statute, law, rule or regulation Law applicable to such the Stockholder other than (x) as may be required under the Exchange Act and the rules and regulations promulgated thereunder,(y(y) where the failure to obtain such consents or approvals or to make such notifications, would not, individually or in the aggregate, prevent or materially delay or materially impair the performance by such the Stockholder of any of its obligations under this Agreement[, and (z) the execution of this Agreement by the Stockholder’s spouse.]
(e) The Subject Shares and the certificates, if any, representing the Subject Shares beneficially owned by the Stockholder are now, and at all times during the term hereof will bebe (except for Subject Shares transferred in accordance with this Agreement or accepted for payment pursuant to the Offer), held beneficially and either as of record by such Stockholder, the Stockholder or by a nominee or custodian for the benefit of such Stockholder or by the depository under the OfferStockholder, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), ) and (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale of the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal or state securities laws Laws (collectively, “Permitted Encumbrances”).
(f) Other than as provided in this Agreement, the Stockholder has full voting power with respect to all the Stockholder’s Subject Shares, and full power of disposition, full power to issue instructions with respect to the matters set forth herein and full power to agree to all of the matters set forth in this Agreement, in each case with respect to all the Stockholder’s Subject Shares. None of the Stockholder’s Subject Shares are subject to any stockholders’ agreement, proxy, voting trust or other agreement or arrangement with respect to the voting of such Subject Shares, except as provided hereunder.
(g) The Stockholder understands and acknowledges that Parent and Purchaser are entering into the Merger Agreement in reliance upon the Stockholder’s execution, delivery and performance of this Agreement.
(h) With respect to the Stockholder, as of the date hereof, there is no Legal Proceeding pending against, or, to the actual knowledge of the Stockholder, threatened against the Stockholder or any of the Stockholder’s properties or assets (including the Subject Shares) before or by any Governmental Body that would reasonably be expected to prevent or materially delay or materially impair the consummation by the Stockholder of the transactions contemplated by this Agreement or otherwise materially impair the Stockholder’s ability to perform his obligations hereunder.
(i) No broker, finder, financial advisor, investment banker or other Person is entitled to any brokerage, finder’s, other similar fee or commission from the Company in connection with such Stockholder tendering the Subject Shares based upon the agreements made by or on behalf of the Stockholder in its capacity as such.
Appears in 1 contract
Samples: Tender and Support Agreement (Swedish Orphan Biovitrum AB (Publ))
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub as follows:
(a) The Stockholder (i) is the record or beneficial owner of the shares of Company Shares (together with Common Stock and the options and warrants to purchase shares of Company Common Stock indicated on the Signature Page hereto, free and clear of any Company Shares which such Stockholder may acquire liens, claims, options, rights of record first refusal, co-sale rights, charges or as a beneficial owner) at any time other encumbrances that, in each case, would deprive Parent of the future during the term benefits of this Agreement; (ii) does not beneficially own any securities of the Company other than the shares of Company Common Stock and options and warrants to purchase shares of Company Common Stock indicated on the Signature Page hereto, except for Stockholder's interest in and to that certain Promissory Note by Company to Stockholder, dated January 1, 2002 in the “Subject Shares”original principal amount of $400,000; and (iii) set forth opposite such Stockholder’s name on Schedule I has full power and authority to make, enter into and carry out the terms of this Agreement and (ii) except as set forth in Schedule I to this Agreement, does not hold or have any beneficial ownership interest in any other Company Shares or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan), or warrant to acquire Company Shares or other right or security convertible into or exercisable or exchangeable for Company Shares.
(b) The Stockholder has the legal capacity to execute and deliver this Agreement and to consummate the transactions contemplated hereby.
(c) proxy contained herein. This Agreement has been validly duly authorized, executed and delivered by the Stockholder and, assuming this Agreement constitutes a valid and binding obligation of Parent and Merger Sub, constitutes the legal, valid and binding obligation of the Stockholder, enforceable against the such Stockholder in accordance with its terms, except that such enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally and (ii) is subject to rules of law governing specific performance, injunctive relief and other equitable remedies and general principles of equity.
(d) . Neither the execution and delivery of this Agreement nor the consummation by the Stockholder of the transactions contemplated hereby will violate, conflict with, or result in the breach of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination violation of, or accelerate the performance required by, a default under or result in a right of termination or acceleration underconflict with, any contract, trust, commitment, agreement, understanding, arrangement or other instrument restriction of any kind to which such Stockholder is a party or by bound or to which such Stockholder’s properties 's Shares (as hereinafter defined) are subject. No trust of which the Stockholder is a trustee requires the consent of any beneficiary to the execution and delivery of this Agreement or assets are boundto the consummation of the transactions contemplated hereby. The consummation If the Stockholder is married and the Stockholder's Shares constitute community property, then this Agreement has been duly authorized, executed and delivered by, and constitutes a valid and binding agreement of, the Stockholder's spouse, enforceable against such person in accordance with its terms. Consummation by the Stockholder of the transactions contemplated hereby will not (i) violate any provision of any judgmentviolate, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under under, any provision or any judgment, order, decree, statute, law, rule title or regulation applicable to such the Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents or approvals or to make such notifications, would not, individually or in the aggregate, prevent or materially delay the performance by such Stockholder of any of its obligations under this Agreement[, and (z) the execution of this Agreement by the Stockholder’s spouse's Shares.]
(e) The Subject Shares and the certificates, if any, representing the Subject Shares owned by the Stockholder are now, and at all times during the term hereof will be, held by such Stockholder, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale of the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”).
Appears in 1 contract
Samples: Stockholder Agreement (Dset Corp)
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub the Company as follows:
(a) The Stockholder (i) is the record or beneficial owner of the Company Shares (together with any Company Shares which such Stockholder may acquire of record or as a beneficial owner) at any time in the future during the term of this Agreement, the “Subject Shares”) set forth opposite such Stockholder’s name on Schedule I to this Agreement has all requisite power and (ii) except as set forth in Schedule I to this Agreement, does not hold or have any beneficial ownership interest in any other Company Shares or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan), or warrant to acquire Company Shares or other right or security convertible into or exercisable or exchangeable for Company Shares.
(b) The Stockholder has the legal capacity authority to execute and deliver this Agreement and to consummate perform the transactions contemplated hereby.
(c) Stockholder’s obligations under this Agreement. The execution, delivery and performance of this Agreement have been duly authorized by the Stockholder. This Agreement has been validly duly executed and delivered by the Stockholder and, assuming this Agreement constitutes a valid and binding obligation of Parent and Merger Subthe Company, constitutes the a valid and binding obligation of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability subject to (i) may be limited by applicable laws of general application relating to bankruptcy, insolvencyinsolvency and the relief of debtors, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally and (ii) is subject to rules of law governing specific performance, injunctive relief and other equitable remedies and general principles of equity.
(d) Neither the execution and delivery of this Agreement nor the consummation by the Stockholder remedies. The failure of the transactions contemplated hereby will violate, conflict with, or result in the breach of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, any contract, trust, commitment, agreement, or other instrument of any kind to which such Stockholder is a party or by which such Stockholder’s properties or assets are bound. The consummation by the Stockholder of the transactions contemplated hereby will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents or approvals or to make such notifications, would not, individually or in the aggregate, prevent or materially delay the performance by such Stockholder of any of its obligations under this Agreement[, and (z) the execution of this Agreement by the Stockholder’s spouse.]
(e) The Subject Shares and the certificates, if any, of the Stockholder to be a party or signatory to this Agreement shall not (x) prevent the Stockholder from performing the Stockholder’s obligations contemplated hereunder or (y) prevent this Agreement from constituting the legal, valid and binding obligation of the Stockholder in accordance with its terms.
(b) The Securities and the certificates (or any book-entry notations used to represent any uncertificated shares of Parent Common Stock) representing the Subject Shares owned by the Stockholder Securities are now, and at all times during the term hereof will be, held by such the Stockholder, or by a nominee or custodian for the benefit of such the Stockholder, and the Stockholder or by has valid title to the depository under the OfferSecurities, free and clear of all liens, claims, security interests, proxies, any Liens (including voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”and voting commitments), except as would not limit the Stockholder’s ability to vote the Securities in the manner provided herein and except as provided by this Agreement. As of the date of this Agreement, the Stockholder does not own of record or beneficially any securities of Parent, or any options, warrants or rights exercisable for securities of Parent, other than the Securities set forth on Exhibit A hereto. The Stockholder has full power to vote the Securities as provided herein. Neither the Stockholder nor any of the Securities is subject to any voting trust, proxy or other agreement, arrangement or restriction with respect to the voting or disposition of the Securities, except as would not limit the Stockholder’s ability to vote the Securities in the manner provided herein and except as otherwise contemplated by this Agreement or the Merger Agreement.
(c) (i) No filing with, and no permit, authorization, consent or approval of any such Encumbrances arising hereunder (in connection therewith any restrictions state, federal or foreign Governmental Entity is necessary on transfer or any other Encumbrances have been waived the part of the Stockholder for the execution and delivery of this Agreement by appropriate consent), the Stockholder and the performance by the Stockholder of the Stockholder’s obligations under this Agreement and (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale neither the execution and delivery of this Agreement by the Stockholder nor the performance by the Stockholder of the Subject SharesStockholder’s obligations under this Agreement nor compliance by the Stockholder with any of the provisions hereof shall (x) result in the creation of an encumbrance on any of the Securities or (y) violate any order, (iii) any risk of forfeiture with respect to any Company Shares granted writ, injunction, decree, statute, rule or regulation applicable to the Stockholder under an employee benefit plan or any of the CompanySecurities, except in the case of (x) or (y) for violations, breaches or defaults that would not in the aggregate materially impair the ability of the Stockholder to perform its obligations hereunder. Table of Contents
(d) As of the date hereof, there is no Action pending or, to the knowledge of the Stockholder, threatened against or affecting the Stockholder’s and/or any of its Affiliates before or by any Governmental Entity that would reasonably be expected to impair the ability of the Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby in a timely manner.
(e) The Stockholder understands and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”)acknowledges that the Company is entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Capnia, Inc.)
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub the Company as follows:
(ai) The Stockholder (i) is the beneficial or record or beneficial owner of the Company Shares shares of Parent Common Stock indicated in Appendix A (together each of which shall be deemed to be “held” by the Stockholder for purposes of Section 3 unless otherwise expressly stated with respect to any Company Shares which such shares in Appendix A), free and clear of any and all Liens; and (ii) the Stockholder may acquire does not beneficially own any securities of record or Parent other than the shares of Parent Common Stock and rights to purchase shares Parent Common Stock set forth in Appendix A.
(b) With respect to any Stockholder that is an entity, the Stockholder is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation and is qualified to conduct its business in those jurisdictions necessary to perform this Agreement.
(c) Except as a beneficial owner) at any time otherwise provided in the future during the term of this Agreement, the “Subject Shares”Stockholder has full power and authority to (i) set forth opposite such Stockholder’s name on Schedule I to make, enter into and carry out the terms of this Agreement and (ii) except as vote all of its Shares in the manner set forth in Schedule I to this AgreementAgreement without the consent or approval of, does not hold or have any beneficial ownership interest in any other Company Shares action on the part of, any other person or any performance based stock units, restricted stock, deferred stock units, option entity (including any granted pursuant Governmental Entity). Without limiting the generality of the foregoing, the Stockholder has not entered into any voting agreement (other than this Agreement) with any person with respect to any Company Stock Plan)of the Stockholder’s Shares, granted any person any proxy (revocable or warrant irrevocable) or power of attorney with respect to acquire Company any of the Stockholder’s Shares, deposited any of the Stockholder’s Shares in a voting trust or other entered into any arrangement or agreement with any person limiting or affecting the Stockholder’s legal power, authority or right or security convertible into or exercisable or exchangeable for Company Sharesto vote the Stockholder’s Shares on any matter contemplated by this Agreement.
(b) The Stockholder has the legal capacity to execute and deliver this Agreement and to consummate the transactions contemplated hereby.
(cd) This Agreement has been duly and validly executed and delivered by the Stockholder andand (assuming the due authorization, assuming this Agreement execution and delivery by the other parties hereto) constitutes a valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such as enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other or similar laws affecting Laws now or hereafter in effect relating to creditors’ rights generally and (ii) is subject to rules of law governing specific performance, injunctive relief and other equitable remedies and general principles of equity.
(d) Neither the . The execution and delivery of this Agreement nor by the consummation Stockholder and the performance by the Stockholder of the transactions contemplated hereby agreements and obligations hereunder will violate, conflict with, or not result in the any breach or violation of or be in conflict with or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, under any contract, trust, commitment, agreement, or other instrument term of any kind Contract or if applicable any provision of an organizational document (including a certificate of incorporation) to or by which such the Stockholder is a party or by bound, or any applicable law to which such the Stockholder (or any of the Stockholder’s properties assets) is subject or assets are bound. The consummation by the Stockholder of the transactions contemplated hereby will not (i) violate , except for any provision of any judgmentsuch breach, order violation, conflict or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents or approvals or to make such notifications, would notdefault which, individually or in the aggregate, prevent would not reasonably be expected to materially impair or materially delay adversely affect the performance by such Stockholder of any of Stockholder’s ability to perform its obligations under this Agreement[.
(e) The execution, delivery and (z) the execution performance of this Agreement by the Stockholder’s spouse.]
(e) The Subject Shares Stockholder do not and the certificateswill not require any consent, if anyapproval, representing the Subject Shares owned by the Stockholder are nowauthorization or permit of, and at all times during the term hereof will beaction by, held by such Stockholderfiling with or notification to, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”)Governmental Entity, except for (i) any such Encumbrances arising hereunder consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain, individually or in the aggregate, has not and would not materially impair the Stockholder’s ability to perform its obligations under this Agreement.
(in connection therewith f) The Stockholder has had the opportunity to review the Merger Agreement and this Agreement with counsel of the Stockholder’s own choosing. The Stockholder has had an opportunity to review with its own tax advisors the tax consequences of the Merger and the Contemplated Transactions. The Stockholder understands that it must rely solely on its advisors and not on any restrictions on transfer statements or representations made by Parent, the Company or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings of their respective agents or arrangements which represent a financial interest in cash received upon sale of the Subject Shares, (iii) any risk of forfeiture representatives with respect to any the tax consequences of the Merger and the Contemplated Transactions. The Stockholder understands that such Stockholder (and not Parent, the Company Shares granted to or the Surviving Corporation) shall be responsible for such Stockholder’s tax liability that may arise as a result of the Merger or the Contemplated Transactions. The Stockholder under an employee benefit plan of understands and acknowledges that the Company, Parent and Transitory Subsidiary are entering into the Merger Agreement in reliance upon the Stockholder’s execution, delivery and performance of this Agreement.
(ivg) Encumbrances imposed by federal With respect to the Stockholder, as of the date hereof, there is no action, suit, investigation or state securities laws proceeding pending against, or, to the knowledge of the Stockholder, threatened against, the Stockholder or any of the Stockholder’s properties or assets (collectively, “Permitted Encumbrances”)including the Shares) that would reasonably be expected to prevent or materially delay or impair the ability of the Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby.
Appears in 1 contract
Samples: Parent Support Agreement (Eliem Therapeutics, Inc.)
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub as to itself as follows:
(a) The Stockholder (i) is the only record or and a beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement. As of the date hereof, other than the Owned Shares, the Stockholder does not own beneficially or of record any shares of capital stock of the Company Shares (together with any Company Shares which such Stockholder may acquire of record or as a beneficial owner) at any time in the future during the term of this Agreement, the “Subject Shares”) set forth opposite such Stockholder’s name on Schedule I to this Agreement and (ii) except as set forth in Schedule I to this Agreement, does not hold or have any beneficial ownership interest in any other Company Shares or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan), or warrant to acquire Company Shares or other right or security securities convertible into shares of capital stock of the Company) or exercisable or exchangeable for Company Sharesany interest therein.
(b) The Stockholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to the Stockholder’s Covered Shares, (ii) has not entered into any voting agreement or voting trust with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement.
(c) The Stockholder (i) is a legal capacity entity duly organized, validly existing and, to execute the extent such concept is applicable, in good standing under the Laws of the jurisdiction of its organization, and (ii) 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 consummate the transactions contemplated hereby.
(c) . This Agreement has been validly duly executed and delivered by the Stockholder and, assuming this Agreement and constitutes a valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally and (ii) is subject to rules of law governing specific performance, injunctive relief and other equitable remedies and general principles of equitythe Enforceability Exceptions.
(d) Neither Other than the execution filings, notices and delivery reports pursuant to, in compliance with or required to be made under the Exchange Act, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of this Agreement nor the consummation waiting periods or authorizations are required to be obtained by the Stockholder from, or to be given by the Stockholder to, or be made by the Stockholder with, any Governmental Authority in connection with the execution, delivery and performance by the Stockholder of this Agreement, the consummation of the transactions contemplated hereby will violateor the Merger and the other transactions contemplated by the Merger Agreement.
(e) The execution, conflict with, or result in the breach delivery and performance of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, any contract, trust, commitment, agreement, or other instrument of any kind to which such Stockholder is a party or by which such Stockholder’s properties or assets are bound. The consummation this Agreement by the Stockholder do not, and the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Merger Agreement will not not, constitute or result in (i) violate any provision a breach or violation of, or a default under, the certificate of any judgmentincorporation, order bylaws or decree applicable to such Stockholder or similar governing documents of the Stockholder, (ii) require with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss of any consentbenefit under, approvalthe creation, modification or notice acceleration of any obligations under or the creation of a Lien on any of the properties, rights or assets of the Stockholder pursuant to any Contract binding upon the Stockholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 4(d), under any statuteapplicable Law to which the Stockholder is subject or (iii) any change in the rights or obligations of any party under any Contract legally binding upon the Stockholder, lawexcept, rule in the case of clause (ii) or regulation applicable to (iii) directly above, for any such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents breach, violation, termination, default, creation, acceleration or approvals or to make such notifications, change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair the Stockholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger or the other transactions contemplated by the Merger Agreement.
(f) As of the date of this Agreement, there is no action, proceeding or investigation pending against the Stockholder or, to the knowledge of the Stockholder, threatened against the Stockholder that questions the beneficial or record ownership of the Stockholder’s Owned Shares, the validity of this Agreement or the performance by such the Stockholder of any of its obligations under this Agreement[, .
(g) The Stockholder understands and (z) acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement and the representations, warranties, covenants and other agreements of the Stockholder contained herein.
(h) No investment banker, broker, finder or other intermediary is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which Parent or the Company is or will be liable in connection with the transactions contemplated hereby based upon arrangements made by or, to the knowledge of the Stockholder’s spouse.]
(e) The Subject Shares and the certificates, if any, representing the Subject Shares owned by the Stockholder are now, and at all times during the term hereof will be, held by such Stockholder, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale behalf of the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”)Stockholder.
Appears in 1 contract
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub as follows:
(a) The Stockholder (i) is the record or beneficial owner and the only record owner of, and has good, valid and marketable title to, the Covered Securities, free and clear of the Company Shares (together with any Company Shares which such Stockholder may acquire of record or Liens other than as a beneficial owner) at any time in the future during the term of created by this Agreement, the “Subject Shares”Partnership Agreement or any other agreement entered into between the Stockholder and Parent or transfer restrictions arising out of securities Laws. As of the date hereof, other than the Owned Shares and Owned Units, the Stockholder and its Subsidiaries (for the avoidance of doubt, other than the Company and its Subsidiaries) set forth opposite such Stockholder’s name on Schedule I to this Agreement do not own beneficially or of record, and (ii) except as set forth in Schedule I to this Agreement, does not hold or have any beneficial ownership interest in right to acquire (whether currently, upon lapse of time, following the satisfaction of any other conditions, upon the occurrence of any event or any combination of the foregoing), any Company Shares or Common Partnership Units (or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan), or warrant to acquire Company Shares or other right or security securities convertible into or exchangeable or exercisable for any of the foregoing) or exchangeable for any interest therein, other than Company SharesShares upon redemption of the Owned Units.
(b) The Stockholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to the Covered Securities, (ii) has not entered into any voting agreement or arrangement or voting trust with respect to any Covered Securities that is inconsistent with its obligations pursuant to this Agreement, (iii) has not granted a proxy, power of attorney or other authorization or consent with respect to any Covered Securities that is inconsistent with its obligations pursuant to this Agreement and (iv) has not entered into any Contract or other undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent the Stockholder from satisfying, its obligations pursuant to this Agreement.
(c) The Stockholder (i) is a legal capacity entity duly organized, validly existing and, to execute the extent such concept is applicable, in good standing under the Laws of the jurisdiction of its organization, and (ii) 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 consummate the transactions contemplated hereby.
(c) . This Agreement has been validly duly executed and delivered by the Stockholder and, assuming this Agreement constitutes a legal, valid and binding obligation of Parent and Merger SubParent, constitutes the a valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium and or other similar laws affecting or Laws relating to creditors’ rights generally and (ii) is subject to rules of law governing specific performance, injunctive relief and other equitable remedies and general principles of equity.
(d) Neither Other than the execution filings and reports pursuant to and in compliance with the Exchange Act, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of waiting periods or authorizations are required to be obtained by the Stockholder from, or to be given by the Stockholder to, or be made by the Stockholder with, any Governmental Entity in connection with the execution, delivery of this Agreement nor the consummation and performance by the Stockholder of this Agreement.
(e) The execution, delivery and performance of this Agreement by the transactions contemplated hereby Stockholder does not and will violate, conflict with, not constitute or result in the (i) a breach of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination violation of, or accelerate the performance required by, or result in a right of termination or acceleration default under, any contract, trust, commitment, agreement, or other instrument of any kind to which such Stockholder is a party or by which such Stockholder’s properties or assets are bound. The consummation by the Stockholder governing documents of the transactions contemplated hereby will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss of any consentbenefit under, approvalthe creation, modification, cancellation or notice acceleration (or the right of modification, cancellation or acceleration) of any obligations under or the creation of a Lien on any of the properties, rights or assets (including the Covered Securities) of the Stockholder pursuant to any Contract binding upon the Stockholder or, assuming compliance with the matters referred to in Section 4(d), under any statuteapplicable Law to which the Stockholder is subject, lawexcept, rule in the case of clause (ii), for any such breach, violation, termination, default, loss, creation, modification, cancellation or regulation applicable to such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents or approvals or to make such notifications, acceleration that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair the Stockholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Mergers or the other transactions contemplated by the Merger Agreement.
(f) As of the date of this Agreement, there is no action, proceeding or investigation pending against the Stockholder or, to the knowledge of the Stockholder, threatened against the Stockholder that questions the beneficial or record ownership of the Owned Shares or Owned Units or the validity of this Agreement, or that could reasonably be expected to prevent or materially delay the performance by such Stockholder of any of Stockholder’s ability to perform its obligations under this Agreement[, hereunder.
(g) The Stockholder understands and (z) acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement by the Stockholder’s spouse.]
(e) The Subject Shares and the certificatesrepresentations, if anywarranties, representing the Subject Shares owned by covenants and other agreements of the Stockholder are now, and at all times during the term hereof will be, held by such Stockholder, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale of the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”)contained herein.
Appears in 1 contract
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub Biosight as follows:
(a) The Stockholder (i) is the record or and a beneficial (within the meaning of Rule 13d-3 under the Exchange Act) owner of, and has good and valid title to, the Owned Shares, free and clear of any Encumbrances, other than any applicable restrictions on transfer under applicable securities laws. As of the Company Shares (together with any Company Shares which such Stockholder may acquire of record or as a beneficial owner) at any time in the future during the term date of this Agreement, the “Subject only equity securities in Advaxis owned of record or beneficially by the Stockholder are the Current Shares”) set forth opposite such Stockholder’s name on Schedule I to this Agreement and (ii) except as set forth in Schedule I to this Agreement, . The Stockholder does not hold or have own any beneficial ownership interest in rights to acquire (directly or indirectly) any other Company Shares equity securities of Advaxis or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan)securities convertible into, or warrant to acquire Company Shares or other right or security convertible into or exercisable or exchangeable for Company Shareswhich can be exchanged for, equity securities of Advaxis.
(b) The Stockholder, except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to, and agree to all, the matters set forth herein, in each case, with respect to the Owned Shares, and has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement.
(c) The Stockholder has the full legal capacity to execute and all requisite power and authority to, and has taken all action necessary in order to, execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby.
(c) to be performed by it hereunder. This Agreement has been validly duly executed and delivered by the Stockholder Stockholder, and, assuming due authorization, execution and delivery by the other parties to this Agreement Agreement, constitutes a valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally and (ii) is subject subject, as to rules of law governing specific performanceenforceability, injunctive relief and other equitable remedies and to general principles of equity.
(d) Neither The Stockholder has not (i) entered into any voting agreement or voting trust with respect to any of the Owned Shares that is still in effect and that is inconsistent with the Stockholder’s obligations pursuant to this Agreement (including Section 1 hereof), (ii) granted a proxy or power of attorney with respect to any of the Owned Shares that is still in effect and that is inconsistent with the Stockholder’s obligations pursuant to this Agreement (including Section 1 hereof), or (iii) entered into any agreement or undertaking that is otherwise inconsistent with, or would restrict, limit or interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement (including Section 1 hereof).
(e) The execution and delivery of this Agreement nor by the consummation Stockholder does not, and the performance by the Stockholder of the transactions contemplated hereby his or her obligations hereunder will violatenot, conflict with, require any consent or result in the breach of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, any contract, trust, commitment, agreement, approval that has not been given or other instrument of action that has not been taken by any kind to which such Stockholder is a party or by which such Stockholder’s properties or assets are bound. The consummation by Person (including under any Contract binding upon the Stockholder of or the transactions contemplated hereby will not (i) violate any provision of any judgmentOwned Shares), order or decree applicable in each case, to the extent such Stockholder or (ii) require any consent, approvalapproval or other action would prevent, or notice under any statute, law, rule or regulation applicable to such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents or approvals or to make such notifications, would not, individually or in the aggregate, prevent enjoin or materially delay the performance by such the Stockholder of any of its his or her obligations under this Agreement[.
(f) There are no Legal Proceedings pending against the Stockholder, or to the knowledge of the Stockholder threatened against the Stockholder, before (or, in the case of threatened Legal Proceedings, that would be before) any Governmental Authority, which in any manner challenges or seeks to prevent, enjoin or materially delay the performance by the Stockholder of his or her obligations under this Agreement.
(g) The Stockholder is a sophisticated holder with respect to the Owned Shares and has adequate information concerning the Transactions, including the transactions contemplated hereby, and (z) concerning the execution business and financial condition of Advaxis and Biosight to make an informed decision regarding the matters referred to herein and has independently, without reliance upon Advaxis, Biosight, any of their Affiliates or any of the respective Representatives of the foregoing, and based on such information as the Stockholder has deemed appropriate, made the Stockholder’s own analysis and decision to enter into this Agreement. The Stockholder has received and reviewed a copy of this Agreement by the Stockholder’s spouse.]
(e) The Subject Shares and the certificatesMerger Agreement, if anyhas had an opportunity to obtain the advice of counsel prior to executing this Agreement and fully understands and accepts all of the provisions hereof and of the Merger Agreement, representing including that the Subject Shares owned consummation of the Merger is subject to the conditions set forth in the Merger Agreement, and as such there can be no assurance that the Merger will be consummated. Except for the representations and warranties made by the Stockholder are nowin this Section 6, neither the Stockholder nor any other Person makes any express or implied representation or warranty to Biosight in connection with this Agreement or the transactions contemplated by this Agreement, and at all times during the term hereof will be, held by such Stockholder, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) expressly disclaims any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer other representations or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale of the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”)warranties.
Appears in 1 contract
Samples: Support Agreement (Advaxis, Inc.)
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub Holicity as to itself as follows:
(a) The Stockholder (i) is the only record or and beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement or the organizational documents of the Company Shares (together with including, for the purposes hereof, any Company Shares which such agreements between or among stockholders of the Company). As of the date hereof, other than the Covered Shares, the Stockholder may acquire does not own beneficially or of record or as a beneficial owner) at any time in shares of capital stock of the future during the term of this Agreement, the “Subject Shares”) set forth opposite such Stockholder’s name on Schedule I to this Agreement and Company (ii) except as set forth in Schedule I to this Agreement, does not hold or have any beneficial ownership interest in any other Company Shares or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan), or warrant to acquire Company Shares or other right or security securities convertible into shares of capital stock of the Company) or exercisable or exchangeable for Company Sharesany interest therein.
(b) The Stockholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the legal capacity matters set forth herein, in each case, with respect to the Stockholder’s Covered Shares, (ii) has not entered into any voting agreement or voting trust with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement.
(c) The Stockholder affirms that (i) if the Stockholder is a natural person, he or she has all the requisite power 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 the Stockholder is not a natural person, (A) it is a legal entity duly organized, validly existing and, to the extent such concept is applicable, in good standing under the Laws of the jurisdiction of its 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 consummate the transactions contemplated hereby.
(c) hereby . This Agreement has been validly duly executed and delivered by the Stockholder and, assuming this Agreement and constitutes a valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws Laws affecting or relating to creditors’ rights generally and (ii) is subject subject, as to rules of law governing specific performanceenforceability, injunctive relief and other equitable remedies and to general principles of equity.
(d) Neither Other than the execution filings, notices and delivery reports pursuant to, in compliance with or required to be made under the Exchange Act, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of this Agreement nor the consummation waiting periods or authorizations are required to be obtained by the Stockholder from, or to be given by the Stockholder to, or be made by the Stockholder with, any Governmental Authority in connection with the execution, delivery and performance by the Stockholder of this Agreement, the consummation of the transactions contemplated hereby will violateor the Merger and the other transactions contemplated by the Business Combination Agreement.
(e) The execution, conflict with, or result in the breach delivery and performance of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, any contract, trust, commitment, agreement, or other instrument of any kind to which such Stockholder is a party or by which such Stockholder’s properties or assets are bound. The consummation this Agreement by the Stockholder do not, and the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Business Combination Agreement will not not, constitute or result in (i) violate any provision a breach or violation of, or a default under, the limited liability company agreement or similar governing documents of any judgmentthe Stockholder (if the Stockholder is not a natural person), order or decree applicable to such Stockholder or (ii) require with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss of any consentbenefit under, approvalthe creation, modification or notice acceleration of any obligations under or the creation of a Lien on any of the properties, rights or assets of the Stockholder pursuant to any Contract binding upon the Stockholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 4(d), under any statuteapplicable Law to which the Stockholder is subject or (iii) any change in the rights or obligations of any party under any Contract legally binding upon the Stockholder, lawexcept, rule in the case of clause (ii) or regulation applicable to (iii) directly above, for any such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents breach, violation, termination, default, creation, acceleration or approvals or to make such notifications, change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair the Stockholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger or the other transactions contemplated by the Business Combination Agreement.
(f) As of the date of this Agreement, there is no action, proceeding or investigation pending against the Stockholder or, to the knowledge of the Stockholder, threatened against the Stockholder that questions the beneficial or record ownership of the Stockholder’s Owned Shares, the validity of this Agreement or the performance by such the Stockholder of any of its obligations under this Agreement[, .
(g) The Stockholder understands and (z) acknowledges that Holicity is entering into the Business Combination Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement by and the Stockholder’s spouserepresentations, warranties, covenants and other agreements of the Stockholder contained herein.]
(eh) The Subject Shares and No investment banker, broker, finder or other intermediary is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which Holicity or the certificates, if any, representing Company is or will be liable in connection with the Subject Shares owned transactions contemplated hereby based upon arrangements made by the Stockholder are nowin his, and at all times during her or its capacity as a stockholder or, to the term hereof will be, held by such knowledge of the Stockholder, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale behalf of the Subject SharesStockholder in his, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal her or state securities laws (collectively, “Permitted Encumbrances”)its capacity as a stockholder.
Appears in 1 contract
Samples: Support Agreement (Holicity Inc.)
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub the Company as follows:
(a) The Stockholder (i) is the only record or and a beneficial owner (within the meaning of Rule 13d-3 under the Company Shares (together with any Company Shares which such Stockholder may acquire of record or as a beneficial ownerExchange Act) at any time in the future during the term of this Agreementof, and has good, valid and marketable title to, the “Subject Owned Shares”) set forth opposite such Stockholder’s name on Schedule I to , free and clear of Liens other than as created by this Agreement and (ii) except as set forth in Schedule I to this AgreementPermitted Liens. As of the date hereof, other than the Owned Shares, the Stockholder does not hold own beneficially or have of record any beneficial ownership interest in any other Company Shares shares of capital stock of GCAC (or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan), or warrant to acquire Company Shares or other right or security securities convertible into or exercisable or exchangeable for Company Sharesshares of capital stock of GCAC).
(b) The Stockholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to the Stockholder’s Covered Shares, (ii) has not entered into any voting agreement or voting trust with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement.
(c) The Stockholder (i) is a legal capacity entity duly organized, validly existing and, to execute the extent such concept is applicable, in good standing under the Law of the jurisdiction of its organization and (ii) has all requisite corporate or other organizational 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 consummate the transactions contemplated hereby.
(c) . This Agreement has been validly duly executed and delivered by the Stockholder and, assuming this Agreement and constitutes a valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally and (ii) is subject to rules of law governing specific performance, injunctive relief and other equitable remedies and general principles of equitythe Remedies Exceptions.
(d) Neither Other than the execution filings, notices and delivery reports pursuant to, in compliance with or required to be made under the Exchange Act, and other than any pre-merger notification requirements of the HSR Act applicable to the Stockholder (and, if applicable, with which the Stockholder has or promptly will comply promptly (and in any event within ten (10) Business Days) after the date of this Agreement nor the consummation Agreement), no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of waiting periods or authorizations are required to be obtained by the Stockholder from, or to be given by the Stockholder to, or be made by the Stockholder with, any Governmental Authority in connection with the execution, delivery and performance by the Stockholder of this Agreement, the consummation of the transactions contemplated hereby will violateor the Merger or the other Transactions.
(e) The execution, conflict with, or result in the breach delivery and performance of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, any contract, trust, commitment, agreement, or other instrument of any kind to which such Stockholder is a party or by which such Stockholder’s properties or assets are bound. The consummation this Agreement by the Stockholder do not, and the consummation of the transactions contemplated hereby or the Merger and the other Transactions will not not, constitute or result in (i) violate any provision a breach or violation of, or a default under, the governing documents of any judgmentthe Stockholder, order or decree applicable to such Stockholder or (ii) require with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss of any consentbenefit under, approvalthe creation, modification or notice acceleration of any obligations under or the creation of a Lien on the Covered Shares (other than Permitted Liens) pursuant to any contract binding upon the Stockholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 4(d), under any statuteapplicable Law to which the Stockholder is subject or (iii) any change in the rights or obligations of any party under any contract legally binding upon the Stockholder, lawexcept, rule in the case of clauses (ii) or regulation applicable to (iii) directly above, for any such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents breach, violation, termination, default, creation, acceleration or approvals or to make such notifications, change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the Stockholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger or the other Transactions.
(f) As of the date of this Agreement, there is no Action pending against the Stockholder or, to the knowledge of the Stockholder, threatened against the Stockholder that questions the beneficial or record ownership of the Stockholder’s Owned Shares, the validity of this Agreement or the performance by such the Stockholder of any of its obligations under this Agreement[, .
(g) The Stockholder understands and (z) acknowledges that the Company is entering into the Business Combination Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement and the representations, warranties, covenants and other agreements of the Stockholder contained herein.
(h) No investment banker, broker, finder or other intermediary is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which the Company is or will be liable in connection with the transactions contemplated hereby based upon arrangements made by or, to the knowledge of the Stockholder’s spouse.]
(e) The Subject Shares and , on behalf of the certificates, if any, representing the Subject Shares owned by the Stockholder are now, and at all times during the term hereof will be, held by such Stockholder, by a nominee or custodian other than, for the benefit avoidance of such Stockholder or by the depository under the Offerdoubt, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise GCAC’s engagement of any rights of a stockholder investment banker, broker, finder or other intermediary as set forth in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale of the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”)GCAC Disclosure Schedule.
Appears in 1 contract
Samples: Stockholder Support Agreement (Growth Capital Acquisition Corp.)
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub Acquiror as to itself as follows:
(a) The Stockholder (i) is the only record or and a beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement, applicable securities laws, the Company’s Fourth Amended and Restated Certificate of Incorporation (the “Company XXX”), the Company’s existing bylaws, that certain Amended and Restated Investors’ Rights Agreement entered into as of May 6, 2019 by and among the Company and certain of its stockholders, and Permitted Liens. As of the date hereof, other than the Owned Shares, the Stockholder does not own beneficially or of record any shares of capital stock of the Company Shares (together with any Company Shares which such Stockholder may acquire of record or as a beneficial owner) at any time in the future during the term of this Agreement, the “Subject Shares”) set forth opposite such Stockholder’s name on Schedule I to this Agreement and (ii) except as set forth in Schedule I to this Agreement, does not hold or have any beneficial ownership interest in any other Company Shares or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan), or warrant to acquire Company Shares or other right or security securities convertible into or exercisable or exchangeable for Company Sharesshares of capital stock of the Company).
(b) The Stockholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to the Stockholder’s Covered Shares, (ii) has not entered into any voting agreement or voting trust with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement.
(c) If an entity, the Stockholder (i) is a legal capacity entity duly organized, validly existing and, to execute the extent such concept is applicable, in good standing under the Laws of the jurisdiction of its organization, and (ii) 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 consummate the transactions contemplated hereby.
(c) . This Agreement has been validly duly executed and delivered by the Stockholder and, assuming this Agreement and constitutes a valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws Laws affecting or relating to creditors’ rights generally and (ii) is subject subject, as to rules of law governing specific performanceenforceability, injunctive relief and other equitable remedies and to general principles of equity.
(d) Neither Other than the execution filings, notices and delivery reports pursuant to, in compliance with or required to be made under the Exchange Act, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of this Agreement nor the consummation waiting periods or authorizations are required to be obtained by the Stockholder from, or to be given by the Stockholder to, or be made by the Stockholder with, any Governmental Authority in connection with the execution, delivery and performance by the Stockholder of this Agreement, the consummation of the transactions contemplated hereby will violateor the Merger and the other transactions contemplated by the Merger Agreement.
(e) The execution, conflict with, or result in the breach delivery and performance of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, any contract, trust, commitment, agreement, or other instrument of any kind to which such Stockholder is a party or by which such Stockholder’s properties or assets are bound. The consummation this Agreement by the Stockholder do not, and the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Merger Agreement will not not, constitute or result in (i) violate any provision a breach or violation of, or a default under, the limited liability company agreement or similar governing documents of any judgmentthe Stockholder, order or decree applicable to such Stockholder or the extent applicable, (ii) require with or without notice, lapse of time or both, a material breach or material violation of, a termination (or right of termination) of or a material default under, the loss of any consentbenefit under, approvalthe creation, modification or notice acceleration of any obligations under or the creation of a Lien on any of the properties, rights or assets of the Stockholder pursuant to any Contract binding upon the Stockholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 4(d), under any statuteapplicable Law to which the Stockholder is subject or (iii) any material change in the rights or obligations of any party under any Contract legally binding upon the Stockholder, lawexcept, rule in the case of clause (ii) or regulation applicable to (iii) directly above, for any such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents breach, violation, termination, default, creation, acceleration or approvals or to make such notifications, change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair the performance Stockholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger or the other transactions contemplated by such the Merger Agreement.
(f) As of the date of this Agreement, there is no action, proceeding or investigation pending against the Stockholder or, to the knowledge of any the Stockholder, threatened against the Stockholder that would reasonably be expected to materially impair the ability of the Stockholder to perform its obligations under this Agreement or to consummate the transactions contemplated by the Merger Agreement[, .
(g) The Stockholder understands and (z) acknowledges that Acquiror is entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement and the representations, warranties, covenants and other agreements of the Stockholder contained herein.
(h) No investment banker, broker, finder or other intermediary is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which Acquiror or the Company is or will be liable in connection with the transactions contemplated hereby based upon arrangements made by or, to the knowledge of the Stockholder’s spouse.]
(e) The Subject Shares and the certificates, if any, representing the Subject Shares owned by the Stockholder are now, and at all times during the term hereof will be, held by such Stockholder, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale behalf of the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”)Stockholder.
Appears in 1 contract
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub the other parties hereto, solely as to itself as follows:
(a) The Stockholder (i) is the only record owner of, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement or beneficial owner the Governing Documents of the Company Shares (together with including, for the purposes hereof, any Company Shares which such Stockholder may acquire agreements between or among stockholders of record or as a beneficial owner) at any time in the future during the term of this Agreement, the “Subject Shares”) set forth opposite such Stockholder’s name on Schedule I to this Agreement and (ii) except as set forth in Schedule I to this Agreement, does not hold or have any beneficial ownership interest in any other Company Shares or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock PlanCompany), or warrant to acquire Company Shares applicable Laws. As of the date hereof, other than the Covered Shares, the Stockholder does not own beneficially or of record any shares of capital stock or other right voting securities of the Company (or security any securities convertible into shares of capital stock or exercisable other voting securities of the Company) or exchangeable for Company Sharesany interest therein.
(b) The Stockholder, except as provided in this Agreement or as may be provided in any agreements between or among the Company and the stockholders of the Company, (i) has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to the Stockholder’s Covered Shares, (ii) has not entered into any voting agreement or voting trust with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement.
(c) The Stockholder affirms that (i) if the Stockholder is a natural person, he or she has all the legal capacity requisite power 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 the Stockholder is not a natural person, (A) it is a legal entity duly organized, validly existing and, to the extent such concept is applicable, in good standing under the Laws of the jurisdiction of its 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 consummate the transactions contemplated hereby.
(c) . This Agreement has been validly duly executed and delivered by the Stockholder and, assuming this Agreement due authorization and execution by each other party hereto, constitutes a valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws Laws affecting or relating to creditors’ rights generally and (ii) is subject subject, as to rules of law governing specific performanceenforceability, injunctive relief and other equitable remedies and to general principles of equity.
(d) Neither Other than the execution filings, notices and delivery reports pursuant to, in compliance with or required to be made under the Exchange Act, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of this Agreement nor the consummation waiting periods or authorizations are required to be obtained by the Stockholder from, or to be given by the Stockholder to, or be made by the Stockholder with, any Governmental Authority in connection with the execution, delivery and performance by the Stockholder of this Agreement, the consummation of the transactions contemplated hereby will violateor the Merger and the other transactions contemplated by the Merger Agreement.
(e) The execution, conflict with, or result in the breach delivery and performance of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, any contract, trust, commitment, agreement, or other instrument of any kind to which such Stockholder is a party or by which such Stockholder’s properties or assets are bound. The consummation this Agreement by the Stockholder do not, and the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Merger Agreement will not not, constitute or result in (i) violate any provision a breach or violation of, or a default under, the Governing Documents of any judgmentthe Stockholder (if the Stockholder is not a natural person), order or decree applicable to such Stockholder or (ii) require with or without notice, lapse of time or both, a material breach or violation of, a termination (or right of termination) of or a material default under, the loss of any consentmaterial benefit under, approvalthe creation, modification or acceleration of any material obligations under or the creation of a Lien (other than under this Agreement or the Merger Agreement) on any of the Owned Shares, or notice pursuant to any Contract binding upon the Stockholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 4(d), under any statuteapplicable Law to which the Stockholder is subject or (iii) any material change in the rights or obligations of any party under any Contract legally binding upon the Stockholder, lawexcept, rule in the case of clause (ii) or regulation applicable to (iii) directly above, for any such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents breach, violation, termination, default, creation, acceleration or approvals or to make such notifications, change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair the Stockholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger or the other transactions contemplated by the Merger Agreement.
(f) As of the date of this Agreement, (i) there is no Action pending against the Stockholder or, to the knowledge of the Stockholder, threatened against the Stockholder and (ii) the Stockholder is not a party to or subject to the provisions of any Governmental Order, in each case, that questions the beneficial or record ownership of the Stockholder’s Owned Shares or the validity of this Agreement or would reasonably be expected to prevent or materially delay, impair or adversely affect the performance by such the Stockholder of any of its obligations under this Agreement[, .
(g) The Stockholder understands and (z) acknowledges that Acquiror and Merger Sub are entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement and the representations, warranties, covenants and other agreements of the Stockholder contained herein.
(h) Except as disclosed in Section 5.17 of the Company Disclosure Letter, no investment banker, broker, finder or other intermediary is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which Acquiror, the Company or any of their respective Subsidiaries is or will be liable in connection with the transactions contemplated hereby based upon arrangements made by the Stockholder in his, her or its capacity as a stockholder of the Company or, to the knowledge of the Stockholder, on behalf of the Stockholder in his, her or its capacity as a stockholder of the Company.
(i) The Stockholder acknowledges that the Stockholder is a sophisticated investor with respect to the Stockholder’s spouse.]
(e) The Subject Covered Shares and has adequate information concerning the certificatesbusiness and financial condition of the Company to make an informed decision regarding the transactions contemplated by this Agreement and has, if anyindependently and without reliance upon Acquiror, representing the Subject Shares owned by the Stockholder are now, and at all times during the term hereof will be, held by such Stockholder, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements Company or any other encumbrances or restrictions whatsoever on title, transfer, or exercise Affiliate of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale of the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of Acquiror and the Company, and (iv) Encumbrances imposed by federal or state securities laws (collectivelybased on such information as the Stockholder has deemed appropriate, “Permitted Encumbrances”)made the Stockholder’s own analysis and decision to enter into this Agreement. The Stockholder acknowledges that the Stockholder has had the opportunity to seek independent legal advice prior to executing this Agreement.
Appears in 1 contract
Samples: Company Stockholder Support Agreement (Soaring Eagle Acquisition Corp.)
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub the Company as follows:
(ai) The Stockholder (i) is the beneficial or record or beneficial owner of the shares of Aspen Common Stock indicated in Appendix A (each of which shall be deemed to be “held” by the Stockholder for purposes of Section 3 unless otherwise expressly stated with respect to any shares in Appendix A), free and clear of any and all Encumbrances (except for any Encumbrance that may be imposed pursuant to this Agreement or any lock-up agreement entered into by and between the Stockholder, the Company Shares and Aspen); and (together with ii) the Stockholder does not beneficially own any Company Shares which such securities of Aspen other than the shares of Aspen Common Stock and rights to purchase shares Aspen Common Stock set forth in Appendix A.
(b) With respect to any Stockholder may acquire that is an entity, the Stockholder is duly organized, validly existing and in good standing under the laws of record or the jurisdiction of its formation and is qualified to conduct its business in those jurisdictions necessary to perform this Agreement.
(c) Except as a beneficial owner) at any time otherwise provided in the future during the term of this Agreement, the “Subject Shares”Stockholder has full power, legal capacity and authority to (i) set forth opposite such Stockholder’s name on Schedule I to make, enter into and carry out the terms of this Agreement and (ii) except as vote all of its Shares in the manner set forth in Schedule I to this AgreementAgreement without the consent or approval of, does not hold or have any beneficial ownership interest in any other Company Shares action on the part of, any other person or any performance based stock units, restricted stock, deferred stock units, option entity (including any granted pursuant Governmental Authority). Without limiting the generality of the foregoing, the Stockholder has not entered into any voting agreement (other than this Agreement) with any person with respect to any Company Stock Plan)of the Stockholder’s Shares, granted any person any proxy (revocable or warrant irrevocable) or power of attorney with respect to acquire Company any of the Stockholder’s Shares, deposited any of the Stockholder’s Shares in a voting trust or other entered into any arrangement or agreement with any person limiting or affecting the Stockholder’s legal power, authority or right or security convertible into or exercisable or exchangeable for Company Sharesto vote the Stockholder’s Shares on any matter contemplated by this Agreement.
(b) The Stockholder has the legal capacity to execute and deliver this Agreement and to consummate the transactions contemplated hereby.
(cd) This Agreement has been duly and validly executed and delivered by the Stockholder andand (assuming the due authorization, assuming this Agreement execution and delivery by the other parties hereto) constitutes a valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally and (ii) is subject to rules of law governing specific performance, injunctive relief and other equitable remedies and general principles of equity.
(d) Neither the Enforceability Exceptions. The execution and delivery of this Agreement nor by the consummation Stockholder and the performance by the Stockholder of the transactions contemplated hereby agreements and obligations hereunder will violate, conflict with, or not result in the any breach or violation of or be in conflict with or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, under any contract, trust, commitment, agreement, or other instrument term of any kind Contract or if applicable any provision of an organizational document (including a certificate of incorporation) to or by which such the Stockholder is a party or by bound, or any applicable Law to which such the Stockholder (or any of the Stockholder’s properties assets) is subject or assets are bound. The consummation by the Stockholder of the transactions contemplated hereby will not (i) violate , except for any provision of any judgmentsuch breach, order violation, conflict or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents or approvals or to make such notifications, would notdefault which, individually or in the aggregate, prevent would not reasonably be expected to materially impair or materially delay adversely affect the performance by such Stockholder of any of Stockholder’s ability to perform its obligations under this Agreement[.
(e) The execution, delivery and (z) the execution performance of this Agreement by the Stockholder do not and will not require any consent, approval, authorization or permit of, action by, filing with or notification to, any Governmental Authority, except for any such consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain, individually or in the aggregate, has not and would not materially impair the Stockholder’s spouseability to perform its obligations under this Agreement.]
(ef) The Subject Shares and the certificatesexecution, if any, representing the Subject Shares owned delivery or performance of this Agreement by the Stockholder are nowwill not contravene, and at all times during the term hereof will be, held by such Stockholder, by a nominee conflict with or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder result in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) a violation of any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent)of the provisions of the Stockholder’s organizational documents, (ii) any rightsLaw or any Order by which the Stockholder, agreements, understandings or arrangements which represent a financial interest in cash received upon sale any of the Subject Sharesassets owned or used by the Stockholder, is subject; (iii) a violation or breach of, or result in a default under, any risk provision of forfeiture any contract to which the Stockholder is a party; or (iv) result in the imposition or creation of any Encumbrance upon or with respect to any asset owned or used by the Stockholder.
(g) The Stockholder has had the opportunity to review the Merger Agreement and this Agreement with counsel of the Stockholder’s own choosing. The Stockholder has had an opportunity to review with its own tax advisors the tax consequences of the Merger and the Contemplated Transactions. The Stockholder understands that it must rely solely on its advisors and not on any statements or representations made by Xxxxx, the Company Shares granted or any of their respective agents or representatives with respect to the tax consequences of the Merger and the Contemplated Transactions. The Stockholder under an employee benefit plan understands that such Stockholder (and not Aspen, the Company or the Surviving Corporation) shall be responsible for such Stockholder’s tax liability that may arise as a result of the Merger or the Contemplated Transactions. The Stockholder understands and acknowledges that the Company, Aspen and Merger Sub are entering into the Merger Agreement in reliance upon the Stockholder’s execution, delivery and performance of this Agreement.
(ivh) Encumbrances imposed by federal With respect to the Stockholder, as of the date hereof, there is no action, suit, investigation or state securities laws proceeding pending against, or, to the knowledge of the Stockholder, threatened against, the Stockholder or any of the Stockholder’s properties or assets (collectively, “Permitted Encumbrances”)including the Shares) that would reasonably be expected to prevent or materially delay or impair the ability of the Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby.
Appears in 1 contract
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub as to itself as follows:
(a) The Stockholder (i) is the record or a beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) and the only record owner of, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement. As of the Company Shares (together with date hereof, other than the Owned Shares, the Stockholder does not own beneficially or of record any Company Shares which such Stockholder may acquire of record or as a beneficial owner) at any time in the future during the term of this Agreement, the “Subject Shares”) set forth opposite such Stockholder’s name on Schedule I to this Agreement and Securities (ii) except as set forth in Schedule I to this Agreement, does not hold or have any beneficial ownership interest in any other Company Shares or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan), or warrant to acquire Company Shares or other right or security securities convertible into Company Securities) or exercisable or exchangeable for Company Sharesany interest therein.
(b) The Stockholder (i) has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to the Stockholder’s Covered Shares, (ii) has not entered into any voting agreement or arrangement or voting trust with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement, (iii) has not granted a proxy, power of attorney or other authorization or consent with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement and (iv) has not entered into any Contract or other undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement.
(c) The Stockholder (i) is a legal capacity entity duly organized, validly existing and, to execute the extent such concept is applicable, in good standing under the Laws of the jurisdiction of its organization, and (ii) 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 consummate the transactions contemplated hereby.
(c) . This Agreement has been validly duly executed and delivered by the Stockholder and, assuming this Agreement constitutes a valid and binding obligation of Parent and Merger Sublegal, constitutes the valid and binding obligation of the Stockholderother parties hereto and thereto, constitute a valid and binding agreement of the Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally and (ii) is subject to rules of law governing specific performance, injunctive relief the Bankruptcy and other equitable remedies and general principles of equityEquity Exceptions.
(d) Neither Other than the execution filings, notices and delivery reports pursuant to, in compliance with or required to be made under the Exchange Act, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of this Agreement nor the consummation waiting periods or authorizations are required to be obtained by the Stockholder from, or to be given by the Stockholder to, or be made by the Stockholder with, any Governmental Entity in connection with the execution, delivery and performance by the Stockholder of this Agreement, the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Merger Agreement.
(e) The execution, delivery and performance of this Agreement by the Stockholder do not, and the consummation of the transactions contemplated hereby, and the Merger and the other transactions contemplated by the Merger Agreement will violatenot, conflict with, constitute or result in the (i) a breach of or constitute violation of, or a default under, the certificate of incorporation, bylaws or comparable organizational documents of the Stockholder, (ii) with or an event which with notice or without notice, lapse of time or both would become both, a defaultbreach or violation of a termination (or right of termination) of or a default under, the loss of any benefit under, the creation, modification, cancellation or result in acceleration (or the termination of, or accelerate the performance required by, or result in a right of termination modification, cancellation or acceleration under, any contract, trust, commitment, agreement, or other instrument acceleration) of any kind to which such Stockholder is obligations under or the creation of a party or by which such Stockholder’s properties Lien on any of the properties, rights or assets are bound. The consummation by (including the Covered Shares) of the Stockholder pursuant to any Contract binding upon the Stockholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby will not hereby), compliance with the matters referred to in Section 4(d), under any applicable Law, rule, regulation, order, judgment or decree to which the Stockholder is subject or (iiii) violate any provision change in the rights or obligations of any judgmentparty under any Contract legally binding upon the Stockholder, order or decree applicable to such Stockholder or except, in the case of clause (ii) require or (iii) directly above, for any consentsuch breach, approvalviolation, termination, default, creation, acceleration or notice under any statute, law, rule or regulation applicable to such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents or approvals or to make such notifications, change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair the Stockholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger or the other transactions contemplated by the Merger Agreement.
(f) As of the date of this Agreement, there is no Action pending against the Stockholder or, to the knowledge of the Stockholder, threatened against the Stockholder that questions the beneficial or record ownership of the Stockholder’s Owned Shares or the validity of this Agreement, or that could reasonably be expected to prevent or materially delay the performance by such Stockholder of any of Stockholder’s ability to perform its obligations under this Agreement[hereunder.
(g) No broker, and (z) finder or investment banker is entitled to any brokerage, finder’s or other fee or commission from the execution Company in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of this Agreement by the Stockholder’s spouse.]
(e) The Subject Shares and the certificates, if any, representing the Subject Shares owned by the Stockholder are now, and at all times during the term hereof will be, held by such Stockholder, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale of the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”).
Appears in 1 contract
Samples: Support Agreement (Sunrun Inc.)
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub the Company as follows:
(a) The Stockholder (i) is the record or and beneficial owner (within the meaning of Rule 13d-3 under the Company Shares (together with any Company Shares which such Stockholder may acquire of record or as a beneficial ownerExchange Act) at any time in the future during the term of this Agreementof, and has good, valid and marketable title to, the “Subject Owned Shares”) set forth opposite such Stockholder’s name on Schedule I to , free and clear of Liens other than as created by this Agreement and (ii) except as set forth in Schedule I to this AgreementPermitted Liens. As of the date hereof, other than the Owned Shares, the Stockholder does not hold own beneficially or have of record any beneficial ownership interest in any other Company Shares shares of capital stock of IAC (or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan), or warrant to acquire Company Shares or other right or security securities convertible into or exercisable or exchangeable for Company Sharesshares of capital stock of IAC).
(b) The Stockholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to the Stockholder’s Covered Shares, (ii) has not entered into any voting agreement or voting trust with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement.
(c) The Stockholder (i) is a legal capacity entity duly organized, validly existing and, to execute the extent such concept is applicable, in good standing under the Law of the jurisdiction of its organization and (ii) has all requisite corporate or other organizational 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 consummate the transactions contemplated hereby.
(c) . This Agreement has been validly duly executed and delivered by the Stockholder and, assuming this Agreement and constitutes a valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally and (ii) is subject to rules of law governing specific performance, injunctive relief and other equitable remedies and general principles of equitythe Remedies Exceptions.
(d) Neither Other than the execution filings, notices and delivery reports pursuant to, in compliance with or required to be made under the Exchange Act or the requirements of this Agreement nor Nasdaq, and other than any pre-merger notification requirements of the consummation HSR Act applicable to the Stockholder, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of waiting periods or authorizations are required to be obtained by the Stockholder from, or to be given by the Stockholder to, or be made by the Stockholder with, any Governmental Authority in connection with the execution, delivery and performance by the Stockholder of this Agreement, the consummation of the transactions contemplated hereby will violateor the Merger or the other Transactions.
(e) The execution, conflict with, or result in the breach delivery and performance of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, any contract, trust, commitment, agreement, or other instrument of any kind to which such Stockholder is a party or by which such Stockholder’s properties or assets are bound. The consummation this Agreement by the Stockholder do not, and the consummation of the transactions contemplated hereby or the Merger and the other Transactions will not not, constitute or result in (i) violate any provision a breach or violation of, or a default under, the governing documents of any judgmentthe Stockholder, order or decree applicable to such Stockholder or (ii) require with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss of any consentbenefit under, approvalthe creation, modification or notice acceleration of any obligations under or the creation of a Lien on the Covered Shares (other than Permitted Liens) pursuant to any contract binding upon the Stockholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 4(d), under any statuteapplicable Law to which the Stockholder is subject or (iii) any change in the rights or obligations of any party under any contract legally binding upon the Stockholder, lawexcept, rule in the case of clauses (ii) or regulation applicable to (iii) directly above, for any such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents breach, violation, termination, default, creation, acceleration or approvals or to make such notifications, change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the Stockholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger or the other Transactions.
(f) As of the date of this Agreement, there is no Action pending against the Stockholder or, to the knowledge of the Stockholder, threatened against the Stockholder that questions the beneficial or record ownership of the Stockholder’s Owned Shares, the validity of this Agreement or the performance by such the Stockholder of any of its obligations under this Agreement[, .
(g) The Stockholder understands and (z) acknowledges that the Company is entering into the Business Combination Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement and the representations, warranties, covenants and other agreements of the Stockholder contained herein.
(h) No investment banker, broker, finder or other intermediary is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which the Company is or will be liable in connection with the transactions contemplated hereby based upon arrangements made by or, to the knowledge of the Stockholder’s spouse.]
(e) The Subject Shares and , on behalf of the certificates, if any, representing the Subject Shares owned by the Stockholder are now, and at all times during the term hereof will be, held by such Stockholder, by a nominee or custodian other than, for the benefit avoidance of such Stockholder or by the depository under the Offerdoubt, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise IAC’s engagement of any rights of a stockholder investment banker, broker, finder or other intermediary as set forth in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale of the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”)IAC Disclosure Schedule.
Appears in 1 contract
Samples: Stockholder Support Agreement (Insight Acquisition Corp. /DE)
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub Acquiror as to itself as follows:
(a) The Stockholder (i) is the only record or and beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement or the organizational documents of the Company Shares (together with including, for the purposes hereof, any Company Shares which such agreements between or among stockholders of the Company). As of the date hereof, other than the Covered Shares, the Stockholder may acquire does not own beneficially or of record or as a beneficial owner) at any time in shares of capital stock of the future during the term of this Agreement, the “Subject Shares”) set forth opposite such Stockholder’s name on Schedule I to this Agreement and Company (ii) except as set forth in Schedule I to this Agreement, does not hold or have any beneficial ownership interest in any other Company Shares or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan), or warrant to acquire Company Shares or other right or security securities convertible into shares of capital stock of the Company) or exercisable or exchangeable for Company Sharesany interest therein.
(b) The Stockholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the legal capacity matters set forth herein, in each case, with respect to the Stockholder’s Covered Shares, (ii) has not entered into any voting agreement or voting trust with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement.
(c) The Stockholder affirms that (i) if the Stockholder is a natural person, he or she has all the requisite power 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 the Stockholder is not a natural person, (A) it is a legal entity duly organized, validly existing and, to the extent such concept is applicable, in good standing under the Laws of the jurisdiction of its 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 consummate the transactions contemplated hereby.
(c) hereby . This Agreement has been validly duly executed and delivered by the Stockholder and, assuming this Agreement and constitutes a valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws Laws affecting or relating to creditors’ rights generally and (ii) is subject subject, as to rules of law governing specific performanceenforceability, injunctive relief and other equitable remedies and to general principles of equity.
(d) Neither Other than the execution filings, notices and delivery reports pursuant to, in compliance with or required to be made under the Exchange Act, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of this Agreement nor the consummation waiting periods or authorizations are required to be obtained by the Stockholder from, or to be given by the Stockholder to, or be made by the Stockholder with, any Governmental Authority in connection with the execution, delivery and performance by the Stockholder of this Agreement, the consummation of the transactions contemplated hereby will violateor the Merger and the other transactions contemplated by the Merger Agreement.
(e) The execution, conflict with, or result in the breach delivery and performance of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, any contract, trust, commitment, agreement, or other instrument of any kind to which such Stockholder is a party or by which such Stockholder’s properties or assets are bound. The consummation this Agreement by the Stockholder do not, and the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Merger Agreement will not not, constitute or result in (i) violate any provision a breach or violation of, or a default under, the limited liability company agreement or similar governing documents of any judgmentthe Stockholder (if the Stockholder is not a natural person), order or decree applicable to such Stockholder or (ii) require with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss of any consentbenefit under, approvalthe creation, modification or notice acceleration of any obligations under or the creation of a Lien on any of the properties, rights or assets of the Stockholder pursuant to any Contract binding upon the Stockholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 4(d), under any statuteapplicable Law to which the Stockholder is subject or (iii) any change in the rights or obligations of any party under any Contract legally binding upon the Stockholder, lawexcept, rule in the case of clause (ii) or regulation applicable to (iii) directly above, for any such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents breach, violation, termination, default, creation, acceleration or approvals or to make such notifications, change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair the Stockholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger or the other transactions contemplated by the Merger Agreement.
(f) As of the date of this Agreement, there is no action, proceeding or investigation pending against the Stockholder or, to the knowledge of the Stockholder, threatened against the Stockholder that questions the beneficial or record ownership of the Stockholder’s Owned Shares, the validity of this Agreement or the performance by such the Stockholder of any of its obligations under this Agreement[, .
(g) The Stockholder understands and (z) acknowledges that Acquiror is entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement by and the Stockholder’s spouserepresentations, warranties, covenants and other agreements of the Stockholder contained herein.]
(eh) The Subject Shares and No investment banker, broker, finder or other intermediary is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which Acquiror or the certificates, if any, representing Company is or will be liable in connection with the Subject Shares owned transactions contemplated hereby based upon arrangements made by the Stockholder are nowin his, and at all times during her or its capacity as a stockholder or, to the term hereof will be, held by such knowledge of the Stockholder, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale behalf of the Subject SharesStockholder in his, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal her or state securities laws (collectively, “Permitted Encumbrances”)its capacity as a stockholder.
Appears in 1 contract
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub Acquiror as to itself as follows:
(a) The Stockholder (i) is the sole record or owner of and a beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement. As of the date hereof, other than the Owned Shares, the Stockholder does not own beneficially or of record any shares of capital stock of the Company Shares (together with any Company Shares which such Stockholder may acquire of record or as a beneficial owner) at any time in the future during the term of this Agreement, the “Subject Shares”) set forth opposite such Stockholder’s name on Schedule I to this Agreement and (ii) except as set forth in Schedule I to this Agreement, does not hold or have any beneficial ownership interest in any other Company Shares or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan), or warrant to acquire Company Shares or other right or security securities convertible into shares of capital stock of the Company) or exercisable or exchangeable for Company Sharesany interest therein.
(b) The Stockholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to the Covered Shares, (ii) has not entered into any voting agreement or voting trust with respect to any of the Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of the Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from performing and satisfying, its obligations pursuant to this Agreement.
(c) If the Stockholder is an entity, the Stockholder (i) is a legal capacity entity duly organized, validly existing and, to execute the extent such concept is applicable, in good standing under the Laws of the jurisdiction of its organization, and (ii) 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 consummate the transactions contemplated hereby.
(c) . If the Stockholder is an individual, the Stockholder has legal competence, capacity and the authority to enter into, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Agreement has been validly duly executed and delivered by the Stockholder and, assuming this Agreement and constitutes a valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws Laws affecting or relating to creditors’ rights generally and (ii) is subject subject, as to rules of law governing specific performanceenforceability, injunctive relief and other equitable remedies and to general principles of equity.
(d) Neither Other than the execution filings, notices and delivery reports pursuant to, in compliance with or required to be made under the Exchange Act, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of this Agreement nor the consummation waiting periods or authorizations are required to be obtained by the Stockholder from, or to be given by the Stockholder to, or be made by the Stockholder with, any Governmental Authority in connection with the execution, delivery and performance by the Stockholder of this Agreement, the consummation of the transactions contemplated hereby will violateor the Merger and the other transactions contemplated by the Merger Agreement.
(e) The execution, conflict with, or result in the breach delivery and performance of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, any contract, trust, commitment, agreement, or other instrument of any kind to which such Stockholder is a party or by which such Stockholder’s properties or assets are bound. The consummation this Agreement by the Stockholder do not, and the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Merger Agreement will not not, constitute or result in (i) violate any provision if the Stockholder is an entity, a breach or violation of, or a default under, the certificate of any judgmentincorporation, order bylaws, limited liability company agreement or decree applicable to such Stockholder or similar governing documents of the Stockholder, (ii) require with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss of any consentbenefit under, approvalthe creation, modification or notice acceleration of any obligations under or the creation of a Lien on any of the properties, rights or assets of the Stockholder pursuant to any Contract binding upon the Stockholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 4(d), under any statuteapplicable Law to which the Stockholder is subject or (iii) any change in the rights or obligations of any party under any Contract legally binding upon the Stockholder, lawexcept, rule in the case of clause (ii) or regulation applicable to (iii) directly above, for any such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents breach, violation, termination, default, creation, acceleration or approvals or to make such notifications, change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair the Stockholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger or the other transactions contemplated by the Merger Agreement.
(f) As of the date of this Agreement, there is no action, proceeding or investigation pending against the Stockholder or, to the knowledge of the Stockholder, threatened against the Stockholder that questions the beneficial or record ownership of the Covered Shares, the validity of this Agreement or the performance by such the Stockholder of any of its obligations under this Agreement[, .
(g) The Stockholder understands and (z) acknowledges that Acquiror is entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement and the representations, warranties, covenants and other agreements of the Stockholder contained herein.
(h) No investment banker, broker, finder or other intermediary is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which Acquiror or the Company is or will be liable in connection with the transactions contemplated hereby based upon arrangements made by or, to the knowledge of the Stockholder’s spouse.]
(e) The Subject Shares and the certificates, if any, representing the Subject Shares owned by the Stockholder are now, and at all times during the term hereof will be, held by such Stockholder, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale behalf of the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”)Stockholder.
Appears in 1 contract
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub Acquiror as to itself as follows:
(a) The Stockholder is the only record and “beneficial owner” (within the meaning of Rule 13d-3 under the Exchange Act) of, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than (i) is Liens as created by this Agreement, (ii) Liens to which the Covered Shares and Stockholder are subject pursuant to the Company Certificate of Incorporation or the Company Bylaws and (iii) Liens to which the Covered Shares and Stockholder are subject pursuant to any agreements between the Company and the Company Stockholders to be terminated in accordance with Section 8. As of the date hereof, other than the Owned Shares, the Stockholder does not own beneficially or of record or beneficial owner any shares of capital stock of the Company Shares (together with any Company Shares which such Stockholder may acquire of record or as a beneficial owner) at any time in the future during the term of this Agreement, the “Subject Shares”) set forth opposite such Stockholder’s name on Schedule I to this Agreement and (ii) except as set forth in Schedule I to this Agreement, does not hold or have any beneficial ownership interest in any other Company Shares or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan), securities exercisable for or warrant to acquire Company Shares or other right or security convertible into shares of capital stock of the Company) or exercisable or exchangeable for Company Sharesany interest therein.
(b) The Stockholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to the Stockholder’s Covered Shares, (ii) has not entered into any voting agreement or voting trust with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would reasonably be expected to interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement.
(c) The Stockholder (i) is a legal capacity entity duly organized, validly existing and, to execute the extent such concept is applicable, in good standing under the Laws of the jurisdiction of its organization, and (ii) 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 consummate the transactions contemplated hereby.
(c) . This Agreement has been validly duly executed and delivered by the Stockholder and, assuming this Agreement and constitutes a legal, valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws Laws affecting or relating to creditors’ rights generally and (ii) is subject subject, as to rules of law governing specific performanceenforceability, injunctive relief and other equitable remedies and to general principles of equity.
(d) Neither Other than the execution filings, notices and reports pursuant to, in compliance with or required to be made under the applicable requirements of the HSR Act and any other applicable Antitrust Law, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of waiting periods or authorizations are required to be obtained by the Stockholder from, or to be given by the Stockholder to, or be made by the Stockholder with, any Governmental Authority or any other Person in connection with the execution, delivery and performance by the Stockholder of this Agreement nor and the consummation of the transactions contemplated hereby.
(e) The execution, delivery and performance of this Agreement by the Stockholder do not, and the consummation of the transactions contemplated hereby will violatenot, conflict with, constitute or result in the (i) a breach of or constitute violation of, or a default under, the governing documents of the Stockholder, (ii) with or an event which with notice or without notice, lapse of time or both would become both, a defaultbreach or violation of, a termination (or right of termination) of or a default under, the loss of any benefit under, the creation, modification or result in acceleration of any obligations under or the termination ofcreation of a Lien on any of the properties, rights or assets of the Stockholder, or accelerate the performance required byCovered Shares, or result in a right of termination or acceleration under, pursuant to any contract, trust, commitment, agreement, or other instrument of any kind to which such Stockholder is a party or by which such Stockholder’s properties or assets are bound. The consummation by Contract binding upon the Stockholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby will not hereby), compliance with the matters referred to in Section 4(d), under any applicable Law to which the Stockholder is subject or (iiii) violate any provision change in the rights or obligations of any judgmentparty under any Contract legally binding upon the Stockholder, order or decree applicable to such Stockholder or except, in the case of clause (ii) require any consentor (iii) directly above, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain for any such consents breach, violation, termination, default, creation, acceleration or approvals or to make such notifications, change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair the Stockholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby and (y) for the Stockholder’s obligations pursuant to that certain Sixth Amended and Restated Voting Agreement of the Company, dated as of September 17, 2020 (the “Voting Agreement”).
(f) As of the date of this Agreement, there is no action, proceeding or investigation pending against the Stockholder or, to the knowledge of the Stockholder, threatened against the Stockholder that questions the beneficial or record ownership of the Stockholder’s Owned Shares, the validity of this Agreement or the performance by such the Stockholder of any of its obligations under this Agreement[, Agreement or that would reasonably be expected to impair the ability of the Stockholder to perform its obligations under this Agreement or to consummate the transactions contemplated by this Agreement on a timely basis.
(g) The Stockholder understands and (z) acknowledges that Acquiror and Merger Sub are entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement and the representations, warranties, covenants and other agreements of the Stockholder contained herein.
(h) No investment banker, broker, finder or other intermediary is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with the transactions contemplated hereby and by the Stockholder’s spouse.]
(e) The Subject Shares and Merger Agreement based upon arrangements made by or, to the certificates, if any, representing knowledge of the Subject Shares owned by the Stockholder are now, and at all times during the term hereof will be, held by such Stockholder, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale behalf of the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”)Stockholder.
Appears in 1 contract
Samples: Support Agreement (Callaway Golf Co)
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub the Company as follows:
(a) The Stockholder (i) is the record or beneficial owner of the Company Shares (together with any Company Shares which such Stockholder may acquire of record or as a beneficial owner) at any time in the future during the term of this Agreement, the “Subject Shares”) set forth opposite such Stockholder’s name on Schedule I to this Agreement has all requisite power and (ii) except as set forth in Schedule I to this Agreement, does not hold or have any beneficial ownership interest in any other Company Shares or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan), or warrant to acquire Company Shares or other right or security convertible into or exercisable or exchangeable for Company Shares.
(b) The Stockholder has the legal capacity authority to execute and deliver this Agreement and to consummate perform the transactions contemplated hereby.
(c) Stockholder’s obligations under this Agreement. The execution, delivery and performance of this Agreement have been duly authorized by the Stockholder. This Agreement has been validly duly executed and delivered by the Stockholder and, assuming this Agreement constitutes a valid and binding obligation of Parent and Merger Subthe Company, constitutes the a valid and binding obligation of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability subject to (i) may be limited by applicable laws of general application relating to bankruptcy, insolvencyinsolvency and the relief of debtors, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally and (ii) is subject to rules of law governing specific performance, injunctive relief and other equitable remedies and general principles of equity.
(d) Neither the execution and delivery of this Agreement nor the consummation by the Stockholder remedies. The failure of the transactions contemplated hereby will violate, conflict with, or result in the breach of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, any contract, trust, commitment, agreement, or other instrument of any kind to which such Stockholder is a party or by which such Stockholder’s properties or assets are bound. The consummation by the Stockholder of the transactions contemplated hereby will not (i) violate any provision of any judgment, order or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents or approvals or to make such notifications, would not, individually or in the aggregate, prevent or materially delay the performance by such Stockholder of any of its obligations under this Agreement[, and (z) the execution of this Agreement by the Stockholder’s spouse.]
(e) The Subject Shares and the certificates, if any, of the Stockholder to be a party or signatory to this Agreement shall not (x) prevent the Stockholder from performing the Stockholder’s obligations contemplated hereunder or (y) prevent this Agreement from constituting the legal, valid and binding obligation of the Stockholder in accordance with its terms.
(b) The Securities and the certificates (or any book-entry notations used to represent any uncertificated shares of Parent Common Stock) representing the Subject Shares owned by the Stockholder Securities are now, and at all times during the term hereof will be, held by such the Stockholder, or by a nominee or custodian for the benefit of such the Stockholder, and the Stockholder or by has valid title to the depository under the OfferSecurities, free and clear of all liens, claims, security interests, proxies, any Liens (including voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”and voting commitments), except as would not limit the Stockholder’s ability to vote the Securities in the manner provided herein and except as provided by this Agreement. As of the date of this Agreement, the Stockholder does not own of record or beneficially any securities of Parent, or any options, warrants or rights exercisable for securities of Parent, other than the Securities set forth on Exhibit A hereto. The Stockholder has full power to vote the Securities as provided herein. Neither the Stockholder nor any of the Securities is subject to any voting trust, proxy or other agreement, arrangement or restriction with respect to the voting or disposition of the Securities, except as would not limit the Stockholder’s ability to vote the Securities in the manner provided herein and except as otherwise contemplated by this Agreement or the Merger Agreement.
(c) (i) No filing with, and no permit, authorization, consent or approval of any such Encumbrances arising hereunder (in connection therewith any restrictions state, federal or foreign Governmental Entity is necessary on transfer or any other Encumbrances have been waived the part of the Stockholder for the execution and delivery of this Agreement by appropriate consent), the Stockholder and the performance by the Stockholder of the Stockholder’s obligations under this Agreement and (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale neither the execution and delivery of this Agreement by the Stockholder nor the performance by the Stockholder of the Subject SharesStockholder’s obligations under this Agreement nor compliance by the Stockholder with any of the provisions hereof shall (x) result in the creation of an encumbrance on any of the Securities or (y) violate any order, (iii) any risk of forfeiture with respect to any Company Shares granted writ, injunction, decree, statute, rule or regulation applicable to the Stockholder under an employee benefit plan or any of the CompanySecurities, except in the case of (x) or (y) for violations, breaches or defaults that would not in the aggregate materially impair the ability of the Stockholder to perform its obligations hereunder.
(d) As of the date hereof, there is no Action pending or, to the knowledge of the Stockholder, threatened against or affecting the Stockholder’s and/or any of its Affiliates before or by any Governmental Entity that would reasonably be expected to impair the ability of the Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby in a timely manner.
(e) The Stockholder understands and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”)acknowledges that the Company is entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement.
Appears in 1 contract
Samples: Voting Agreement (Capnia, Inc.)
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub as to itself as follows:
(a) The Stockholder is the only record and a beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by (i) is the record or beneficial owner of the Company Shares (together with any Company Shares which such Stockholder may acquire of record or as a beneficial owner) at any time in the future during the term of this Agreement, the “Subject Shares”) set forth opposite such Stockholder’s name on Schedule I to this Agreement and ; (ii) except applicable securities Laws; (iii) the Company Organizational Documents; and (iv) the Stockholder Agreements (as defined below). As of the date hereof, other than the Owned Shares and other than as set forth in Schedule I to this 5.06(c) of the Company Schedules (as defined in the Merger Agreement), the Stockholder does not hold own beneficially or have of record any beneficial ownership interest in any other shares of capital stock of the Company Shares (or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan), or warrant to acquire Company Shares or other right or security securities convertible into shares of capital stock of the Company) or exercisable or exchangeable for Company Sharesany interest therein.
(b) The Stockholder, except as provided in this Agreement or in the Stockholder Agreements, (i) has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to the Covered Shares; (ii) has not entered into any voting agreement or voting trust with respect to any of the Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement; (iii) has not granted a proxy or power of attorney with respect to any of the Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement; and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement.
(c) If an entity, the Stockholder (i) is a legal capacity entity duly organized, validly existing and, to execute the extent such concept is applicable, in good standing under the Laws of the jurisdiction of its organization, and (ii) 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 consummate the transactions contemplated hereby.
(c) . This Agreement has been validly duly executed and delivered by the Stockholder and, assuming this Agreement due authorization and execution by each other party hereto, constitutes a valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws Laws affecting or relating to creditors’ rights generally and (ii) is subject subject, as to rules of law governing specific performanceenforceability, injunctive relief and other equitable remedies and to general principles of equity.
(d) Neither Other than the execution filings, notices and reports pursuant to, in compliance with or required to be made under the Exchange Act, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of waiting periods or authorizations are required to be obtained by the Stockholder from, or to be given by the Stockholder to, or be made by the Stockholder with, any Governmental Authority in connection with the execution, delivery and performance by the Stockholder of this Agreement nor or the consummation of the transactions contemplated hereby, other than those set forth as conditions to closing in the Merger Agreement.
(e) The execution, delivery and performance of this Agreement by the Stockholder do not, and the consummation of the transactions contemplated hereby will violatenot, conflict withconstitute or result in: (i) a breach or violation of, or result in the breach of or constitute a default under, the governing documents of the Stockholder, to the extent applicable; (ii) with or an event which with notice or without notice, lapse of time or both would become both, a defaultmaterial breach or material violation of, a termination (or right of termination) of or a material default under, the loss of any material benefit under, the creation, modification or acceleration of any obligations under, or result in the termination ofcreation of a Lien (other than under this Agreement, the Merger Agreement or accelerate any other Transaction Agreement) on any of the performance required by, or result in a right of termination or acceleration underOwned Shares, any contract, trust, commitment, agreement, or other instrument of any kind Contract to which such the Stockholder is a party or by which such Stockholder’s properties or assets are bound. The consummation by the Stockholder is bound or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby will not hereby), compliance with the matters referred to in Section 4(d), under any applicable Law to which the Stockholder is subject; or (iii) any material change in the rights or obligations of any party under any Contract legally binding upon the Stockholder, except, in the case of clause (i) violate any provision of any judgment), order or decree applicable to such Stockholder or (ii) require or (iii) directly above, for any consentsuch breach, approvalviolation, termination, default, creation, acceleration or notice under any statute, law, rule or regulation applicable to such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents or approvals or to make such notifications, change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair the performance by such Stockholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby.
(f) As of the date of this Agreement, there is no action, proceeding or investigation pending against the Stockholder or, to the knowledge of any the Stockholder, threatened against the Stockholder that would reasonably be expected to materially impair the ability of the Stockholder to perform its obligations under this Agreement[, Agreement or to consummate the transactions contemplated hereby.
(g) The Stockholder understands and (z) acknowledges that Parent is entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement and the representations, warranties, covenants and other agreements of the Stockholder contained herein.
(h) No investment banker, broker, finder or other intermediary is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which Parent or the Company is or will be liable in connection with the transactions contemplated hereby based upon arrangements made by or, to the knowledge of the Stockholder’s spouse.]
(e) The Subject Shares and the certificates, if any, representing the Subject Shares owned by the Stockholder are now, and at all times during the term hereof will be, held by such Stockholder, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale behalf of the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”)Stockholder.
Appears in 1 contract
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub Acquiror as to itself as follows:
(a) The Stockholder (i) is the only record or and a beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement and Permitted Liens. As of the date hereof, other than the Owned Shares, the Stockholder does not own beneficially or of record any shares of capital stock of the Company Shares (together with any Company Shares which such Stockholder may acquire of record or as a beneficial owner) at any time in the future during the term of this Agreement, the “Subject Shares”) set forth opposite such Stockholder’s name on Schedule I to this Agreement and (ii) except as set forth in Schedule I to this Agreement, does not hold or have any beneficial ownership interest in any other Company Shares or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan), or warrant to acquire Company Shares or other right or security securities convertible into or exercisable or exchangeable for Company Sharesshares of capital stock of the Company).
(b) The Stockholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the legal capacity matters set forth herein, in each case, with respect to execute and deliver the Stockholder’s Covered Shares, (ii) has not entered into any voting agreement or voting trust with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to consummate the transactions contemplated herebythis Agreement.
(c) The Stockholder (i) is a legal entity duly organized, validly existing and, to the extent such concept is applicable, in good standing under the Laws of the jurisdiction of its organization, and (ii) has all requisite corporate or other power and authority and has taken all corporate or other action necessary in order to, execute,
(1) This Agreement has been validly duly executed and delivered by the Stockholder and, assuming this Agreement and constitutes a valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws Laws affecting or relating to creditors’ rights generally and (ii) is subject subject, as to rules of law governing specific performanceenforceability, injunctive relief and other equitable remedies and to general principles of equity.
(d) Neither Other than the execution filings, notices and delivery reports pursuant to, in compliance with or required to be made under the Exchange Act, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of this Agreement nor the consummation waiting periods or authorizations are required to be obtained by the Stockholder from, or to be given by the Stockholder to, or be made by the Stockholder with, any Governmental Authority in connection with the execution, delivery and performance by the Stockholder of this Agreement, the consummation of the transactions contemplated hereby will violateor the Merger and the other transactions contemplated by the Merger Agreement.
(e) The execution, conflict with, or result in the breach delivery and performance of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, any contract, trust, commitment, agreement, or other instrument of any kind to which such Stockholder is a party or by which such Stockholder’s properties or assets are bound. The consummation this Agreement by the Stockholder do not, and the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Merger Agreement will not not, constitute or result in (i) violate any provision a breach or violation of, or a default under, the limited liability company agreement or similar governing documents of any judgment, order or decree applicable to such Stockholder or the Stockholder,(2) (ii) require with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss of any consentbenefit under, approvalthe creation, modification or notice acceleration of any obligations under or the creation of a Lien on any of the properties, rights or assets of the Stockholder pursuant to any Contract binding upon the Stockholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 4(d), under any statuteapplicable Law to which the Stockholder is subject or (iii) any change in the rights or obligations of any party under any Contract legally binding upon the Stockholder, lawexcept, rule in the case of clause (ii) or regulation applicable to (iii) directly above, for any such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents breach, violation, termination, default, creation, acceleration or approvals or to make such notifications, change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair the Stockholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger or the other transactions contemplated by the Merger Agreement.
(f) As of the date of this Agreement, there is no action, proceeding or investigation pending against the Stockholder or, to the knowledge of the Stockholder, threatened against the Stockholder that questions the beneficial or record ownership of the Stockholder’s Owned Shares, the validity of this Agreement or the performance by such the Stockholder of any of its obligations under this Agreement[, .
(1) NTD: To be included if the Stockholder is an entity
(2) NTD: To be included if the Stockholder is an entity
(g) The Stockholder understands and (z) acknowledges that Acquiror is entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement and the representations, warranties, covenants and other agreements of the Stockholder contained herein.
(h) No investment banker, broker, finder or other intermediary is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which Acquiror or the Company is or will be liable in connection with the transactions contemplated hereby based upon arrangements made by or, to the knowledge of the Stockholder’s spouse.]
(e) The Subject Shares and the certificates, if any, representing the Subject Shares owned by the Stockholder are now, and at all times during the term hereof will be, held by such Stockholder, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale behalf of the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”)Stockholder.
Appears in 1 contract
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub as to itself as follows:
(a) The Stockholder is the only record and beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by (i) is the record or beneficial owner of the Company Shares (together with any Company Shares which such Stockholder may acquire of record or as a beneficial owner) at any time in the future during the term of this Agreement, the “Subject Shares”) set forth opposite such Stockholder’s name on Schedule I to this Agreement and ; (ii) except applicable securities Laws; (iii) the Company Organizational Documents; and (iv) the Stockholder Agreements (as defined below). As of the date hereof, other than the Owned Shares and other than as set forth in Schedule I to this 5.06(b) of the Company Schedules (as defined in the Merger Agreement), the Stockholder does not hold own beneficially or have of record any beneficial ownership interest in any other shares of capital stock of the Company Shares (or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan), or warrant to acquire Company Shares or other right or security securities convertible into shares of capital stock of the Company) or exercisable or exchangeable for Company Sharesany interest therein.
(b) The Stockholder, except as provided in this Agreement or in the Stockholder Agreements, (i) has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to the Covered Shares; (ii) has not entered into any voting agreement or voting trust with respect to any of the Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement; (iii) has not granted a proxy or power of attorney with respect to any of the Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement; and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement.
(c) If an entity, the Stockholder (i) is a legal capacity entity duly organized, validly existing and, to execute the extent such concept is applicable, in good standing under the Laws of the jurisdiction of its organization, and (ii) 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 consummate the transactions contemplated hereby.
(c) . This Agreement has been validly duly executed and delivered by the Stockholder and, assuming this Agreement due authorization and execution by each other party hereto, constitutes a valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws Laws affecting or relating to creditors’ rights generally and (ii) is subject subject, as to rules of law governing specific performanceenforceability, injunctive relief and other equitable remedies and to general principles of equity.
(d) Neither Other than the execution filings, notices and reports pursuant to, in compliance with or required to be made under the Exchange Act, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of waiting periods or authorizations are required to be obtained by the Stockholder from, or to be given by the Stockholder to, or be made by the Stockholder with, any Governmental Authority in connection with the execution, delivery and performance by the Stockholder of this Agreement nor or the consummation of the transactions contemplated hereby, other than those set forth as conditions to closing in the Merger Agreement.
(e) The execution, delivery and performance of this Agreement by the Stockholder do not, and the consummation of the transactions contemplated hereby will violatenot, conflict withconstitute or result in: (i) a breach or violation of, or result in the breach of or constitute a default under, the governing documents of the Stockholder, to the extent applicable; (ii) with or an event which with notice or without notice, lapse of time or both would become both, a defaultmaterial breach or material violation of, a termination (or right of termination) of or a material default under, the loss of any material benefit under, the creation, modification or acceleration of any obligations under, or result in the termination ofcreation of a Lien (other than under this Agreement, the Merger Agreement or accelerate any other Transaction Agreement) on any of the performance required by, or result in a right of termination or acceleration underOwned Shares, any contract, trust, commitment, agreement, or other instrument of any kind Contract to which such the Stockholder is a party or by which such Stockholder’s properties or assets are bound. The consummation by the Stockholder is bound or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby will not hereby), compliance with the matters referred to in Section 4(d), under any applicable Law to which the Stockholder is subject; or (iiii) violate any provision material change in the rights or obligations of any judgmentparty under any Contract legally binding upon the Stockholder, order or decree applicable to such Stockholder or except, in the case of clause (ii), (ii) require or (iii) directly above, for any consentsuch breach, approvalviolation, termination, default, creation, acceleration or notice under any statute, law, rule or regulation applicable to such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents or approvals or to make such notifications, change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair the performance by such Stockholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby.
(f) As of the date of this Agreement, there is no action, proceeding or investigation pending against the Stockholder or, to the knowledge of any the Stockholder, threatened against the Stockholder that would reasonably be expected to materially impair the ability of the Stockholder to perform its obligations under this Agreement[, Agreement or to consummate the transactions contemplated hereby.
(g) The Stockholder understands and acknowledges that Parent (zi) entered into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement by and the representations, warranties, covenants and other agreements of the Stockholder contained herein and (ii) will continue to fulfill its obligations under the Merger Agreement, subject to the terms and conditions provided therein, in reliance upon the Stockholder’s spouseexecution and delivery of this Agreement and the representations, warranties, covenants and other agreements of the Stockholder contained herein.]
(eh) The Subject Shares and No investment banker, broker, finder or other intermediary is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which Parent or the certificatesCompany is or will be liable in connection with the transactions contemplated hereby based upon arrangements made by or, if any, representing to the Subject Shares owned by knowledge of the Stockholder are now, and at all times during the term hereof will be, held by such Stockholder, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale behalf of the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”)Stockholder.
Appears in 1 contract
Samples: Voting and Support Agreement (Gores Metropoulos II, Inc.)
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub the Company as follows:
(a) The Stockholder (i) is the record or beneficial owner of the Company Shares (together with any Company Shares which such Stockholder may acquire of record or as a beneficial owner) at any time in the future during the term of this Agreement, the “Subject Shares”) set forth opposite such Stockholder’s name on Schedule I has all power and authority to enter into this Agreement and (ii) except as set forth in Schedule I to this Agreement, does not hold or have any beneficial ownership interest in any other Company Shares or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan), or warrant to acquire Company Shares or other right or security convertible into or exercisable or exchangeable for Company Sharesperform its obligations hereunder.
(b) The Stockholder has the legal capacity to execute and deliver this Agreement and to consummate the transactions contemplated hereby.
(c) This Agreement has been validly duly executed and delivered by the Stockholder and, assuming this Agreement constitutes and will constitute a valid and legally binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreements of the Stockholder, enforceable against the Stockholder in accordance with its terms.
(c) The execution, except that such enforceability delivery and performance by the Stockholder of this Agreement and the consummation of the transaction contemplated hereby do not and will not (i) may be limited by applicable bankruptcyrequire the consent, insolvencyapproval, reorganizationauthorization or order of or filing with or notice to any governmental agency or third party, moratorium and other similar laws affecting or relating to creditors’ rights generally and (ii) is subject violate, conflict with or constitute a breach or default under (A) the terms or provisions of any contract, lease or other agreement, or (B) any statute, rule, regulation, judgment, decree or order applicable to rules of law governing specific performance, injunctive relief and other equitable remedies and general principles of equitythe Stockholder.
(d) Neither The Stockholder recognizes that its investment in the execution and delivery Shares involves a high degree of this Agreement nor the consummation by the Stockholder of the transactions contemplated hereby will violate, conflict with, or risk which may result in the breach loss of or constitute a default (or the total amount of its investment. The Stockholder is familiar with risks of an event which with notice or lapse of time or both would become a default) under, or result investment in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, any contract, trust, commitment, agreement, or other instrument of any kind to which such Stockholder is a party or by which such Stockholder’s properties or assets are boundShares. The consummation by Stockholder acknowledges that it is aware of and has carefully considered all risks incident to the Stockholder purchase of the transactions contemplated hereby will not (i) violate any provision of any judgment, order or decree applicable to Shares. The Stockholder has carefully reviewed and understands and accepts all such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents or approvals or to make such notifications, would not, individually or in the aggregate, prevent or materially delay the performance by such Stockholder of any of its obligations under this Agreement[, and (z) the execution of this Agreement by the Stockholder’s spouserisks.]
(e) The Subject Stockholder is acquiring the Shares for its own account (as principal) for investment and not with a view to the distribution or resale thereof, and has not offered or sold any portion of the Shares and has no present intention of dividing the certificatesShares with others or of reselling or otherwise disposing of any portion of the Shares.
(f) THE STOCKHOLDER ACKNOWLEDGES AND UNDERSTANDS THAT IT MUST BEAR THE ECONOMIC RISK OF ITS INVESTMENT IN THE SHARES FOR AN INDEFINITE PERIOD OF TIME BECAUSE THERE IS NO PUBLIC MARKET FOR THE SHARES AND THAT NO MARKET FOR THE SHARES IS LIKELY TO DEVELOP. THE STOCKHOLDER FURTHER ACKNOWLEDGES AND UNDERSTANDS THAT THE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, if anyAS AMENDED, representing OR UNDER THE SECURITIES LAWS OF ANY STATE, AND THEREFORE CANNOT BE SOLD UNLESS THEY ARE SUBSEQUENTLY REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR UNLESS AN EXEMPTION OR EXCEPTION FROM SUCH REGISTRATION IS AVAILABLE. THE STOCKHOLDER ALSO RECOGNIZES THAT NO FEDERAL OR STATE AGENCY HAS PASSED UPON THE SHARES OR MADE ANY FINDING OR DETERMINATION AS TO THE FAIRNESS OF AN INVESTMENT IN THE SHARES.
(g) The Stockholder is experienced and knowledgeable in the Subject oil and gas business and has had full access to information concerning the business of Arena, has had the opportunity to obtain any information which Arena possesses and is desired by it relating to the Shares owned by and Arena, has been given the opportunity to meet with officers of Arena and to have said officers answer any questions regarding the terms and conditions of this particular investment and all such questions have been answered to its full satisfaction, and the Stockholder are nowacknowledges and understands the terms and conditions of its purchase of the Shares. In reaching the conclusion that the Stockholder desires to acquire the Shares, it has carefully evaluated its financial resources and investments, has consulted with such legal, accounting and other professionals as may be necessary or appropriate, and at all times during acknowledges that it is able to bear the term hereof will be, held by such Stockholder, by a nominee or custodian for the benefit economic risks of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale of the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”).this investment. 2
Appears in 1 contract
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent Acquiror, Merger Sub I and Merger Sub II as to itself as follows:
(a) The Stockholder (i) is the only record or and a beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement and Permitted Liens. As of the date hereof, other than the Owned Shares, the Stockholder does not own beneficially or of record any shares of capital stock of the Company Shares (together with any Company Shares which such Stockholder may acquire of record or as a beneficial owner) at any time in the future during the term of this Agreement, the “Subject Shares”) set forth opposite such Stockholder’s name on Schedule I to this Agreement and (ii) except as set forth in Schedule I to this Agreement, does not hold or have any beneficial ownership interest in any other Company Shares or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan), or warrant to acquire Company Shares or other right or security securities convertible into or exercisable or exchangeable for Company Sharesshares of capital stock of the Company).
(b) The Stockholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to the Stockholder’s Covered Shares, (ii) has not entered into any voting agreement or voting trust with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement.
(c) [The Stockholder (i) is a legal capacity entity duly organized, validly existing and, to execute the extent such concept is applicable, in good standing under the Laws of the jurisdiction of its organization, and (ii) 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 consummate the transactions contemplated hereby.
(c) hereby.]1 [The Stockholder has legal competence and capacity to enter into this Agreement and all necessary authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby and, to the extent any Covered Share constitutes community property under applicable Law, the Stockholder has obtained all consents necessary under applicable Law to enter into this Agreement and to perform its obligations hereunder with respect to such Covered Shares.]2 This Agreement has been validly duly executed and delivered by the Stockholder and, assuming this Agreement and constitutes a valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws Laws affecting or relating to creditors’ rights generally and (ii) is subject subject, as to rules of law governing specific performanceenforceability, injunctive relief and other equitable remedies and to general principles of equity.
(d) Neither Other than the execution filings, notices and delivery reports pursuant to, in compliance with or required to be made under the Exchange Act, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of this Agreement nor the consummation waiting periods or authorizations are required to be obtained by the Stockholder from, or to be given by the Stockholder to, or be made by the Stockholder with, any Governmental Authority in connection with the execution, delivery and performance by the Stockholder of this Agreement, the consummation of the transactions contemplated hereby will violateor the Mergers and the other transactions contemplated by the Merger Agreement.
(e) The execution, conflict with, or result in the breach delivery and performance of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, any contract, trust, commitment, agreement, or other instrument of any kind to which such Stockholder is a party or by which such Stockholder’s properties or assets are bound. The consummation this Agreement by the Stockholder do not, and the consummation of the transactions contemplated hereby or the Mergers and the other transactions contemplated by the Merger Agreement will not not, constitute or result in [(i) violate any provision a breach or violation of, or a default under, the limited liability company agreement or similar governing documents of any judgment, order or decree applicable to such Stockholder or the Stockholder,]3 (ii) require with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss of any consentbenefit under, approvalthe creation, modification or notice acceleration of any obligations under or the creation of a Lien on any of the properties, rights or assets of the Stockholder pursuant to any Contract binding upon the Stockholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 5(d), under any statuteapplicable Law to which the Stockholder is subject or (iii) any change in the rights or obligations of any party under any Contract legally binding upon the Stockholder, lawexcept, rule in the case of clause (ii) or regulation applicable to (iii) directly above, for any such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents breach, violation, termination, default, creation, acceleration or approvals or to make such notifications, change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or 2 NTD: To be included if the Stockholder is a natural person. 3 NTD: To be included if the Stockholder is an entity impair the Stockholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Mergers or the other transactions contemplated by the Merger Agreement.
(f) As of the date of this Agreement, there is no action, proceeding or investigation pending against the Stockholder or, to the knowledge of the Stockholder, threatened against the Stockholder that questions the beneficial or record ownership of the Stockholder’s Owned Shares, the validity of this Agreement or the performance by such the Stockholder of any of its obligations under this Agreement[.
(g) The Stockholder understands and acknowledges that Acquiror, Merger Sub I and (z) Merger Sub II are entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement and the representations, warranties, covenants and other agreements of the Stockholder contained herein.
(h) No investment banker, broker, finder or other intermediary is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which Acquiror, Merger Sub I, Merger Sub II or the Company is or will be liable in connection with the transactions contemplated hereby based upon arrangements made by or, to the knowledge of the Stockholder’s spouse.]
(e) The Subject Shares and the certificates, if any, representing the Subject Shares owned by the Stockholder are now, and at all times during the term hereof will be, held by such Stockholder, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale behalf of the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”)Stockholder.
Appears in 1 contract
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub Acquiror as to itself as follows:
(a) The Stockholder (i) is the only record or and a beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement. As of the date hereof, other than the Owned Shares, the Stockholder does not own beneficially or of record any shares of capital stock of the Company Shares (together with any Company Shares which such Stockholder may acquire of record or as a beneficial owner) at any time in the future during the term of this Agreement, the “Subject Shares”) set forth opposite such Stockholder’s name on Schedule I to this Agreement and (ii) except as set forth in Schedule I to this Agreement, does not hold or have any beneficial ownership interest in any other Company Shares or any performance based stock units, restricted stock, deferred stock units, option (including any granted pursuant to any Company Stock Plan), or warrant to acquire Company Shares or other right or security securities convertible into shares of capital stock of the Company) or exercisable or exchangeable for Company Sharesany interest therein.
(b) The Stockholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to the Stockholder’s Covered Shares, (ii) has not entered into any voting agreement or voting trust with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of the Stockholder’s Covered Shares that is inconsistent with the Stockholder’s obligations pursuant to this Agreement and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement.
(c) The Stockholder (i) is a legal capacity entity duly organized, validly existing and, to execute the extent such concept is applicable, in good standing under the Laws of the jurisdiction of its organization, and (ii) 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 consummate the transactions contemplated hereby.
(c) . This Agreement has been validly duly executed and delivered by the Stockholder and, assuming this Agreement and constitutes a valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws Laws affecting or relating to creditors’ rights generally and (ii) is subject subject, as to rules of law governing specific performanceenforceability, injunctive relief and other equitable remedies and to general principles of equity.
(d) Neither Other than the execution filings, notices and delivery reports pursuant to, in compliance with or required to be made under the Exchange Act, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of this Agreement nor the consummation waiting periods or authorizations are required to be obtained by the Stockholder from, or to be given by the Stockholder to, or be made by the Stockholder with, any Governmental Authority in connection with the execution, delivery and performance by the Stockholder of this Agreement, the consummation of the transactions contemplated hereby will violateor the Merger and the other transactions contemplated by the Merger Agreement.
(e) The execution, conflict with, or result in the breach delivery and performance of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, any contract, trust, commitment, agreement, or other instrument of any kind to which such Stockholder is a party or by which such Stockholder’s properties or assets are bound. The consummation this Agreement by the Stockholder do not, and the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Merger Agreement will not not, constitute or result in (i) violate any provision a breach or violation of, or a default under, the limited liability company agreement or similar governing documents of any judgmentthe Stockholder, order or decree applicable to such Stockholder or (ii) require with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss of any consentbenefit under, approvalthe creation, modification or notice acceleration of any obligations under or the creation of a Lien on any of the properties, rights or assets of the Stockholder pursuant to any Contract binding upon the Stockholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 4(d), under any statuteapplicable Law to which the Stockholder is subject or (iii) any change in the rights or obligations of any party under any Contract legally binding upon the Stockholder, lawexcept, rule in the case of clause (ii) or regulation applicable to (iii) directly above, for any such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents breach, violation, termination, default, creation, acceleration or approvals or to make such notifications, change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair the Stockholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger or the other transactions contemplated by the Merger Agreement.
(f) As of the date of this Agreement, there is no action, proceeding or investigation pending against the Stockholder or, to the knowledge of the Stockholder, threatened against the Stockholder that questions the beneficial or record ownership of the Stockholder’s Owned Shares, the validity of this Agreement or the performance by such the Stockholder of any of its obligations under this Agreement[, .
(g) The Stockholder understands and (z) acknowledges that Acquiror is entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement and the representations, warranties, covenants and other agreements of the Stockholder contained herein.
(h) No investment banker, broker, finder or other intermediary is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which Acquiror or the Company is or will be liable in connection with the transactions contemplated hereby based upon arrangements made by or, to the knowledge of the Stockholder’s spouse.]
(e) The Subject Shares and the certificates, if any, representing the Subject Shares owned by the Stockholder are now, and at all times during the term hereof will be, held by such Stockholder, by a nominee or custodian for the benefit of such Stockholder or by the depository under the Offer, free and clear of all liens, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer, or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale behalf of the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”)Stockholder.
Appears in 1 contract
Representations and Warranties of the Stockholder. The Stockholder hereby represents and warrants to Parent and Merger Sub Public Company as follows:
(ai) The Stockholder (i) is the beneficial or record or beneficial owner of the Company Shares shares of Merger Partner Capital Stock indicated in Appendix A (together each of which shall be deemed to be “held” by the Stockholder for purposes of Section 3 unless otherwise expressly stated with respect to any Company Shares which such shares in Appendix A), free and clear of any and all Liens; and (ii) the Stockholder may acquire does not beneficially own any securities of record or Merger Partner other than the shares of Merger Partner Capital Stock and rights to purchase shares of Merger Partner Capital Stock set forth in Appendix A.
(b) Except as a beneficial owner) at any time otherwise provided in the future during the term of this Agreement, the “Subject Shares”Stockholder has full power and authority to (i) set forth opposite such Stockholder’s name on Schedule I to make, enter into and carry out the terms of this Agreement and (ii) except as vote all of its Shares in the manner set forth in Schedule I to this AgreementAgreement without the consent or approval of, does not hold or have any beneficial ownership interest in any other Company Shares action on the part of, any other person or any performance based stock units, restricted stock, deferred stock units, option entity (including any granted pursuant Governmental Entity). Without limiting the generality of the foregoing, the Stockholder has not entered into any voting agreement (other than this Agreement) with any person with respect to any Company Stock Plan)of the Stockholder’s Shares, granted any person any proxy (revocable or warrant irrevocable) or power of attorney with respect to acquire Company any of the Stockholder’s Shares, deposited any of the Stockholder’s Shares in a voting trust or other entered into any arrangement or agreement with any person limiting or affecting the Stockholder’s legal power, authority or right or security convertible into or exercisable or exchangeable for Company Shares.
(b) The Stockholder has to vote the legal capacity to execute and deliver this Agreement and to consummate the transactions contemplated herebyStockholder’s Shares on any matter.
(c) This Agreement has been duly and validly executed and delivered by the Stockholder andand (assuming the due authorization, assuming this Agreement execution and delivery by the other parties hereto) constitutes a valid and binding obligation of Parent and Merger Sub, constitutes the valid and binding obligation agreement of the Stockholder, Stockholder enforceable against the Stockholder in accordance with its terms, except that such enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally and (ii) is subject to rules of law governing specific performance, injunctive relief the Bankruptcy and other equitable remedies and general principles of equity.
(d) Neither the Equity Exception. The execution and delivery of this Agreement nor by the consummation Stockholder and the performance by the Stockholder of the transactions contemplated hereby agreements and obligations hereunder will violate, conflict with, or not result in the any breach or violation of or be in conflict with or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, under any contract, trust, commitment, agreement, or other instrument term of any kind Contract or if applicable any provision of an organizational document (including a certificate of incorporation) to or by which such the Stockholder is a party or by bound, or any applicable law to which such the Stockholder (or any of the Stockholder’s properties assets) is subject or assets are bound. The consummation by the Stockholder of the transactions contemplated hereby will not (i) violate , except for any provision of any judgmentsuch breach, order violation, conflict or decree applicable to such Stockholder or (ii) require any consent, approval, or notice under any statute, law, rule or regulation applicable to such Stockholder other than (x) as required under the Exchange Act and the rules and regulations promulgated thereunder,(y) where the failure to obtain such consents or approvals or to make such notifications, would notdefault which, individually or in the aggregate, prevent would not reasonably be expected to materially impair or materially delay adversely affect the performance by such Stockholder of any of Stockholder’s ability to perform its obligations under this Agreement[.
(d) The Stockholder has had the opportunity to review the Merger Agreement and this Agreement with the Stockholder’s legal counsel. The Stockholder understands and acknowledges that Public Company is entering into the Merger Agreement in reliance upon the Stockholder’s execution, delivery and performance of this Agreement.
(ze) the execution The execution, delivery and performance of this Agreement by the Stockholder do not and will not require any consent, approval, authorization or permit of, action by, filing with or notification to, any Governmental Entity, except for any such consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain, individually or in the aggregate, has not and would not materially impair the Stockholder’s spouseability to perform its obligations under this Agreement.]
(ef) The Subject Shares and With respect to the certificatesStockholder, if anyas of the date hereof, representing there is no action, suit, investigation or proceeding pending against, or, to the Subject Shares owned by knowledge of the Stockholder, threatened against, the Stockholder are nowor any of the Stockholder’s properties or assets (including the Shares) that would reasonably be expected to prevent or materially delay or impair the ability of the Stockholder to perform its obligations hereunder or to consummate the transactions contemplated hereby.
(g) Neither the Stockholder nor any of its Representatives or Affiliates has employed or made any agreement with any broker, and at all times during finder or similar agent or any Person which will result in the term hereof will be, held by obligation of such Stockholder, by a nominee or custodian for the benefit of such Stockholder or by the depository under the OfferPublic Company, free and clear of all liensMerger Partner, claims, security interests, proxies, voting trusts or agreements, options, rights (other than community property interests), understandings or arrangements or any other encumbrances of their respective Affiliates to pay any finder’s fee, brokerage fees or restrictions whatsoever on title, transfer, commission or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for (i) any such Encumbrances arising hereunder (similar payment in connection therewith any restrictions on transfer or any other Encumbrances have been waived by appropriate consent), (ii) any rights, agreements, understandings or arrangements which represent a financial interest in cash received upon sale of with the Subject Shares, (iii) any risk of forfeiture with respect to any Company Shares granted to the Stockholder under an employee benefit plan of the Company, and (iv) Encumbrances imposed by federal or state securities laws (collectively, “Permitted Encumbrances”)transactions contemplated hereby.
Appears in 1 contract
Samples: Merger Partner Support Agreement (Millendo Therapeutics, Inc.)
