Stockholder Representations. Stockholder represents and warrants to Parent and the Company, as of the date hereof, that:
(a) Stockholder has never been suspended or expelled from membership in any securities or commodities exchange or association or had a securities or commodities license or registration denied, suspended or revoked;
(b) Stockholder has full right and power, without violating any agreement to which it is bound (including any non-competition or non-solicitation agreement with any employer or former employer), to enter into this Parent Support Agreement;
(i) if Stockholder is not an individual, Stockholder is duly organized, validly existing and in good standing under the Laws of the jurisdiction in which it is organized, and the execution, delivery and performance of this Parent Support Agreement and the consummation of the transactions contemplated hereby are within the Stockholder’s organizational powers and have been duly authorized by all necessary organizational actions on the part of the Stockholder and (ii) if Stockholder is an individual, the signature on this Parent Support Agreement is genuine, and Stockholder has legal competence and capacity to execute the same;
(d) this Parent Support Agreement has been duly executed and delivered by Stockholder and, assuming due authorization, execution and delivery by the other parties to this Parent Support Agreement, this Parent Support Agreement constitutes a legally valid and binding obligation of Stockholder, enforceable against Stockholder in accordance with the terms hereof (except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies);
(e) the execution and delivery of this Parent Support Agreement by Stockholder does not, and the performance by Stockholder of its obligations hereunder will not, (i) if Stockholder is not an individual, conflict with or result in a violation of the organizational documents of Stockholder, or (ii) require any consent or approval from any third party that has not been given or other action that has not been taken by any third party, in each case, to the extent such consent, approval or other action would prevent, enjoin or materially delay the performance by Stockholder of its obligations under this Parent Support Agreement;
(f) there are no Actions pending against Stockholder or, to the knowledge of Stockholder, threatened ag...
Stockholder Representations. Sponsor Stockholder represents and warrants to the Company as of the date hereof that Sponsor Stockholder: (a) is acquiring Common Stock for its own account, solely for investment and not with a view toward, or for sale in connection with, any distribution thereof in violation of any federal or state securities or “blue sky” laws, or with any present intention of distributing or selling such Common Stock in violation of any such laws, (b) has such knowledge and experience in financial and business matters and in investments of this type that it is capable of evaluating the merits and risks of its investment in such Common Stock and of making an informed investment decision, (c) is either (i) an “accredited investor” within the meaning of Rule 501(a) under the Securities Act or (ii) not a “U.S. person” (within the meaning of Rule 902 of Regulation S of the Securities Act) and is not acquiring any Common Stock for the account or benefit of any “U.S. Person” (within the meaning of Rule 902 of Regulation S of the Securities Act), (d) has (i) requested, received, reviewed and considered information that Sponsor Stockholder deems relevant in making an informed decision to invest in such Common Stock, (ii) had an opportunity to discuss the Company’s business, management and financial affairs with the Company’s management and (iii) received and reviewed a copy of this Agreement, the Merger Agreement and the Separation and Distribution Agreement, (e) understands that the Company is relying on the representations contained in this Section 2.04 to establish an exemption from registration under the Securities Act and under state securities laws and acknowledges that the offer and sale of such Common Stock has not been registered under the Securities Act or any other applicable law and that such Common Stock may not be Transferred except in compliance with this Agreement and pursuant to the registration provisions of the Securities Act or an applicable exemption therefrom, (f) does not own any shares of Common Stock, except for such shares acquired pursuant to the Merger Agreement and (g) is not a party to any contract, agreement or understanding for the purpose of acquiring, holding, voting or disposing of shares of capital stock of the Company, other than with respect to other Persons constituting Sponsor Stockholder or other Persons holding any direct or indirect interests in any Persons constituting Sponsor Stockholder.
Stockholder Representations. Each Stockholder hereby represents and warrants (a) that this Agreement has been duly authorized, executed and delivered on its behalf and constitutes its legal, valid and binding obligation and (b) that the execution, delivery and performance of this Agreement by the Stockholder does not and will not violate any applicable law or regulation.
Stockholder Representations. Each Stockholder represents and warrants that (a) such Stockholder owns its Shares free and clear of liens and encumbrances and has not, prior to or on the date of this Agreement, executed or delivered any proxy or entered into any other voting agreement or similar arrangement with respect to such Shares, and (b) such Stockholder has full power and capacity to execute, deliver and perform this Agreement, which has been duly executed and delivered by, and evidences the valid and binding obligation of, such Stockholder, enforceable in accordance with its terms.
Stockholder Representations. In connection with the issuance and purchase of the Shares under this Agreement, the Stockholder hereby represents and warrants to the Company as follows:
(a) The Stockholder is acquiring and will hold the Shares for investment for the Stockholder’s account only and not with a view to, or for resale in connection with, any “distribution” thereof with the meaning of the Securities Act of 1933, as amended (the “Securities Act”).
(b) The Stockholder has been furnished with, and has had access to, such information as the Stockholder considers necessary or appropriate for deciding whether to invest in the Shares, and the Stockholder has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the issuance of the Shares.
(c) The Stockholder is aware that the Stockholder’s investment in the Company is a speculative investment that has limited liquidity and is subject to the risk of complete loss. The Stockholder is able, without impairing the Stockholder’s financial condition, to hold the Shares for an indefinite period and to suffer a complete loss of an investment in the Shares.
(d) The Stockholder is an “accredited investor” within the meaning of Regulation D promulgated under the Securities Act.
Stockholder Representations. In connection with the granting of the options provided for herein and in connection with the redemption of shares of DMC Common Stock, DMC Series A Preferred Stock and DMC Series C Preferred Stock, each Stockholder represents to Company as follows:
Stockholder Representations. In connection with the issuance and acquisition of the Shares, the Stockholder hereby represents and warrants to Parent as follows:
(i) The Stockholder acquired and will hold the Shares for investment for his, her or its account only and not with a view to, or for resale in connection with, any “distribution” thereof within the meaning of the Securities Act of 1933, as amended (the “Securities Act”).
(ii) The Stockholder understands that the Shares have not been registered under the Securities Act by reason of a specific exemption therefrom and that the Shares must be held indefinitely, unless they are subsequently registered under the Securities Act or the Stockholder obtains an opinion of counsel, in form and substance satisfactory to Parent and its counsel, that such registration is not required.
(iii) The Stockholder is aware of the adoption of Rule 144 by the Securities and Exchange Commission under the Securities Act, which permits limited public resales of securities acquired in a non-public offering, subject to the satisfaction of certain conditions, including, without limitation, the availability of certain current public information about the issuer, the resale occurring only after the holding period required by Rule 144 has been satisfied, the sale occurring through an unsolicited “broker’s transaction,” and the amount of securities being sold during any three-month period not exceeding specified limitations.
(iv) The Stockholder will not transfer the Shares in violation of the Securities Act, the Securities Exchange Act of 1934, or the rules promulgated thereunder, including Rule 144 under the Securities Act. The Stockholder agrees that he or she will not dispose of the Shares unless and until he or she has complied with all requirements of this Agreement applicable to the disposition of Shares and he or she has provided Parent with written assurances, in substance and form satisfactory to Parent, that the proposed disposition does not require registration of the Shares under the Securities Act or all appropriate action necessary for compliance with the registration requirements of the Securities Act or with any exemption from registration available under the Securities Act (including Rule 144) has been obtained.
(v) The Stockholder had been furnished with, and has had access to, such information as he or she considered necessary or appropriate for deciding whether to invest in the Shares, and the Stockholder has had an opportunity to ask quest...
Stockholder Representations. By signing this Agreement or any Joinder, each Stockholder that is not already signatory to a subscription agreement with the Company (as of the date such Stockholder becomes a Stockholder through signature hereto or delivery of a Joinder) makes the representations and warranties set forth on Exhibit C. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK – SIGNATURE PAGES FOLLOW]
Stockholder Representations. Each Existing Stockholder, severally and not jointly, represents and warrants to the Company and the other Stockholders as follows:
(i) Such Stockholder, where applicable, is a corporation, limited partnership, limited liability company or other entity duly organized, as the case may be, validly existing and, if applicable, in good standing under the laws of the state of each such Stockholder’s organization.
(ii) Such Stockholder has all requisite power and authority to execute and deliver this Agreement and to carry out its obligations hereunder.
(iii) The execution and delivery of this Agreement, and the performance by such Stockholder of its obligations hereunder, have been duly authorized by such Stockholder, and no other proceeding therefor on the part of such Stockholder or any of its partners, members, or shareholders, as applicable, is required.
(iv) This Agreement has been duly executed and delivered by such Stockholder and is a valid and binding obligation of such Stockholder, enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to the enforcement of creditors’ rights and remedies or by other equitable principles of general application.
Stockholder Representations. Each Stockholder, severally and not jointly, hereby represents and warrants to the Company as follows:
(a) This Agreement has been duly and validly executed and delivered by such Stockholder and constitutes a legally valid and binding obligation of such Stockholder enforceable against such Stockholder in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(b) The execution and delivery by such Stockholder of this Agreement do not, and the performance by such Stockholder of such Stockholder’s obligations under this Agreement will not: (i) conflict with or result in a violation or breach of any term or provision of any law, statute, rule or regulation or any order, judgment or decree of any Governmental Authority applicable to such Stockholder; or (ii) conflict with or result in a violation or breach of, constitute (with or without notice or lapse of time or both) a default under, or require such Stockholder to obtain any consent, approval or action of, make any filing with or give any notice to any Person as a result or under the terms of, any contract, permit, license, agreement or arrangement to which such Stockholder is a party or by which such Stockholder may be bound.
(c) No consent, approval or action of, filing with or notice to any Governmental Authority on the part of such Stockholder is required in connection with the execution and delivery of this Agreement, other than any filing with the Commission required in connection with the execution and delivery of this Agreement.
