Waiver and Release of Claims. Each Supporting Holder covenants and agrees, severally with respect to such Supporting Holder only and not with respect to any other Supporting Holder, as follows: (a) Effective upon the Closing, in consideration for the undersigned Supporting Holder’s portion of the Merger Consideration, such Supporting Holder, on behalf of himself, herself or itself, and his, her or its Affiliates and equityholders (if the Supporting Holder is an entity) and each of their respective successors and assigns, hereby fully, unconditionally and irrevocably waives, releases, acquits and forever discharges the SPAC Parties and the Company, and each Subsidiary and Affiliate of the foregoing and their respective Representatives and equityholders, and each of their respective successors and assigns (collectively, “Released Parties”) from any claims, suits, demands, debts, accounts, covenants, contracts, arrangements, promises, obligations, damages, judgments, debts, dues, or liabilities of any kind, actions, and causes of action of every kind and nature, or otherwise (including claims for damages, costs, expenses, and attorneys’, brokers’ and accountants’ fees and expenses), in law or equity (“Action”), which the Supporting Holder has or may have against any Released Party, whether known or unknown, suspected or unsuspected, accrued or fixed, absolute or contingent, matured or unmatured, determined or determinable, and that now exist or may hereafter exist (collectively, “Claims”) solely to the extent such Claims arise or relate to any inaccuracy or miscalculation in the portion of the Merger Consideration received by such Supporting Holder in connection with the Closing (collectively, the “Released Claims”). The Supporting Holder shall refrain from directly or indirectly asserting any claim or commencing (or causing to be commenced) any Action of any kind before any Governmental Authority against any Released Party based upon any Released Claim. The release contained herein is effective without regard to the legal nature of the claims raised and without regard to whether any such claims are based upon tort, equity, law, implied or express contract, discrimination of any sort or any other grounds. To the extent permitted by applicable Law, the undersigned Supporting Holder expressly waives the benefit of any Law, which, if applied to the release set forth herein, would otherwise exclude from its binding effect any claim not known on the date hereof to exist. (b) The Supporting Holder represents and acknowledges that: (i) he, she or it has read this release and understands its terms and has been given an opportunity to ask questions of the Company’s Representatives and (ii) in signing this release he, she or it does not rely, and has not relied, on any representation or statement not set forth in this release made by any Representative of the Company or anyone else with regard to the subject matter, basis or effect of this release or otherwise. The Supporting Holder further represents and acknowledges that he, she or it may hereafter discover facts in addition to or different from those which the he, she or it now knows or believes to be true with respect to the subject matter herein, and that he, she or it may hereafter come to have a different understanding of the Law that may apply to potential claims which the undersigned is releasing hereunder, but the undersigned affirms that, except as is otherwise specifically provided above, it is his, her or its intention to fully, finally and forever settle and release any and all Released Claims. In furtherance of this intention, the Supporting Holder acknowledges that the releases contained herein shall be and remain in effect as full and complete general releases notwithstanding the discovery or existence of any such additional facts or different understandings of Law. (c) The Supporting Holder acknowledges that he, she or it may execute, and may have executed, additional releases in connection with the Merger, and for the avoidance of doubt, the Supporting Holder will be bound by each release to which he, she or it is a party and such releases will be cumulative and not exclusive to one another.
Appears in 2 contracts
Samples: Merger Agreement (Dune Acquisition Corp), Support Agreement (Dune Acquisition Corp)
Waiver and Release of Claims. Each Supporting Holder Stockholder hereby covenants and agrees, severally with respect to such Supporting Holder only and not with respect to any other Supporting Holder, agrees as follows:
(a) Effective Subject to and conditioned upon the ClosingEffective Time, in consideration for the undersigned Supporting Holder’s portion effective as of the Merger ConsiderationEffective Time (and subject to the limitations set forth in paragraph (c) below), such Supporting HolderStockholder, on behalf of himself, herself and his or itselfher Affiliates and his or her and their respective successors, assigns, representatives, administrators, executors and agents, and hisany other person or entity claiming by, her through, or its Affiliates and equityholders under any of the foregoing (if each a “Releasing Party” and, collectively, the Supporting Holder is an entity) and each “Releasing Parties,” provided, for the avoidance of their respective successors and assignsdoubt, that NXU, shall not be deemed a Releasing Party hereunder), does hereby fully, unconditionally and irrevocably waivesrelease, releases, acquits waive and forever discharges discharge the SPAC Parties and NXU, the Company, and each Subsidiary of their past and Affiliate of the foregoing and their respective Representatives and equityholderspresent directors, officers, employees, agents, predecessors, successors, assigns, and each of their respective successors and assigns (collectivelySubsidiaries, “Released Parties”) from any and all past or present claims, suits, demands, debts, accounts, covenants, contracts, arrangements, promises, obligations, damages, judgments, debts, dues, or causes of action and liabilities of any kind, actions, and causes of action of every kind and nature, or otherwise (including claims for damages, costs, expenses, and attorneys’, brokers’ and accountants’ fees and expenses), in law or equity (“Action”), which the Supporting Holder has or may have against any Released Partynature whatsoever, whether known or unknownnot known, suspected or unsuspectedclaimed, accrued arising directly or fixedindirectly from any act, absolute omission, event or contingent, matured transaction occurring (or unmatured, determined any circumstances existing) at or determinable, and that now exist or may hereafter exist (collectively, “Claims”) solely prior to the extent such Claims arise or relate to any inaccuracy or miscalculation in the portion of the Merger Consideration received by such Supporting Holder in connection with the Closing Effective Time (each a “Claim” and, collectively, the “Released Claims”). The Supporting Holder shall refrain from directly or indirectly asserting any claim or commencing (or causing to be commenced) any Action of any kind before any Governmental Authority against any Released Party based upon any Released Claim. The release contained herein is effective without regard to the legal nature of the claims raised and without regard to whether any such claims are based upon tort, equity, law, implied or express contract, discrimination of any sort or any other grounds. To the extent permitted by applicable Law, the undersigned Supporting Holder expressly waives the benefit of any Law, which, if applied to the release set forth herein, would otherwise exclude from its binding effect any claim not known on the date hereof to exist.
(b) The Supporting Holder represents and acknowledges that: (i) he, she or it has read this release and understands its terms and has been given an opportunity to ask questions of the Company’s Representatives and (ii) in signing this release he, she or it does not rely, and has not relied, on any representation or statement not set forth in this release made by any Representative of the Company or anyone else with regard to the subject matter, basis or effect of this release or otherwise. The Supporting Holder further represents and Such Stockholder acknowledges that he, he or she or it may hereafter discover facts in addition to or different from those which the he, he or she or it now knows or believes to be true with respect to the subject matter hereinof this Agreement, and that he, he or she or it may hereafter come to have a different understanding of the Law law that may apply to potential claims which the undersigned it is releasing hereunder, but the undersigned he or she affirms that, except as is otherwise specifically provided aboveherein, it is his, his or her or its intention to fully, finally and forever settle and release any and all Released Claims. In furtherance of this intention, the Supporting Holder such Stockholder acknowledges that the releases contained herein shall be and remain in effect as full and complete general releases notwithstanding the discovery or existence of any such additional facts or different understandings of Lawlaw. Such Stockholder knowingly and voluntarily waives and releases any and all rights and benefits he or she may now have, or in the future may have, under Section 1542 of the California Civil Code (or any analogous law of any other state), which reads as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” Such Stockholder understands that Section 1542, or a comparable statute, rule, regulation or order of another jurisdiction, gives such Stockholder the right not to release existing Claims of which such Stockholder is not aware, unless such Stockholder voluntarily chooses to waive this right. Having been so apprised, such Stockholder nevertheless hereby voluntarily elects to and does waive any rights he or she may have that are described in Section 1542, or such other comparable statute, rule, regulation or order, and elects to assume all risks for Claims that exist, existed or may hereafter exist in his or her favor, known or unknown, suspected or unsuspected, arising out of or related to claims or other matters purported to be released pursuant to this Section 1.7, in each case, effective as of the Effective Time. Such Stockholder acknowledges and agrees that the foregoing waiver is an essential and material term of the release provided pursuant to this Section 1.7 and that, without such waiver, NXU and the Company would not have agreed to the terms of this Agreement.
(c) The Supporting Holder acknowledges that heNotwithstanding the foregoing provisions of this Section 1.7 or anything to the contrary set forth herein, she the Releasing Parties do not release or it may executedischarge, and may have executedeach Releasing Party expressly does not release or discharge any Claims (i) that arise under or are based upon the terms of this Agreement, additional releases the Merger Agreement, any of the Ancillary Agreements or any other document, certificate or Contract executed or delivered in connection with the Merger, and for Merger Agreement or any similar agreement in respect of the avoidance of doubt, transactions contemplated by the Supporting Holder will be bound by each release Merger Agreement to which he, she or it is a Releasing Party may be a party and that (in each case) is expressly disclosed in the Schedules of NXU, as each such releases will agreement or instrument described above may be cumulative amended in accordance with its terms and not exclusive the terms set forth in (A) the Merger Agreement or (B) this Agreement or the other Ancillary Agreements (if and to one anotherthe extent applicable), (ii) any rights with respect to the Common Stock owned by such Releasing Party, or (iii) any Claims for indemnification, contribution, set-off, reimbursement or similar rights pursuant to any certificate of incorporation or bylaws of NXU or any of its Subsidiaries or any indemnity or similar agreements by the NXU with or for the benefit of a Releasing Party solely to the extent (in each case) set forth in the Schedules of Acquiror or as contemplated by Section 7.01 of the Merger Agreement.
(d) Notwithstanding the foregoing provisions of this Section 1.7, nothing contained in this Agreement shall be construed as an admission by any party hereto of any liability of any kind to any other party hereto.
Appears in 2 contracts
Samples: Acquiror Support Agreement (Nxu, Inc.), Merger Agreement (Nxu, Inc.)
Waiver and Release of Claims. Each Supporting Holder The Stockholder hereby covenants and agrees, severally with respect to such Supporting Holder only and not with respect to any other Supporting Holder, agrees as follows:
(a) Effective Subject to and conditioned upon the ClosingEffective Time, in consideration for the undersigned Supporting Holder’s portion effective as of the Merger ConsiderationEffective Time (and subject to the limitations set forth in paragraph (c) below), such Supporting Holderthe Stockholder, on behalf of himself, herself or itself, itself and his, her or its Affiliates and equityholders (if the Supporting Holder is an entity) its and each of their respective successors and successors, assigns, representatives, administrators, executors and agents, and any other person or entity claiming by, through, or under any of the foregoing (each a “Releasing Party” and, collectively, the “Releasing Parties,” provided, for the avoidance of doubt, that the Acquiror, shall not be deemed a Releasing Party hereunder), does hereby fully, unconditionally and irrevocably waivesrelease, releases, acquits waive and forever discharges discharge the SPAC Parties and Acquiror, the Company, and each Subsidiary of their past and Affiliate of the foregoing and their respective Representatives and equityholderspresent directors, officers, employees, agents, predecessors, successors, assigns, and each of their respective successors and assigns (collectivelySubsidiaries, “Released Parties”) from any and all past or present claims, suits, demands, debts, accounts, covenants, contracts, arrangements, promises, obligations, damages, judgments, debts, dues, or causes of action and liabilities of any kind, actions, and causes of action of every kind and nature, or otherwise (including claims for damages, costs, expenses, and attorneys’, brokers’ and accountants’ fees and expenses), in law or equity (“Action”), which the Supporting Holder has or may have against any Released Partynature whatsoever, whether known or unknownnot known, suspected or unsuspectedclaimed, accrued arising directly or fixedindirectly from any act, absolute omission, event or contingent, matured transaction occurring (or unmatured, determined any circumstances existing) at or determinable, and that now exist or may hereafter exist (collectively, “Claims”) solely prior to the extent such Claims arise or relate to any inaccuracy or miscalculation in the portion of the Merger Consideration received by such Supporting Holder in connection with the Closing Effective Time (each a “Claim” and, collectively, the “Released Claims”). The Supporting Holder shall refrain from directly or indirectly asserting any claim or commencing (or causing to be commenced) any Action of any kind before any Governmental Authority against any Released Party based upon any Released Claim. The release contained herein is effective without regard to the legal nature of the claims raised and without regard to whether any such claims are based upon tort, equity, law, implied or express contract, discrimination of any sort or any other grounds. To the extent permitted by applicable Law, the undersigned Supporting Holder expressly waives the benefit of any Law, which, if applied to the release set forth herein, would otherwise exclude from its binding effect any claim not known on the date hereof to exist.
(b) The Supporting Holder represents and acknowledges that: (i) he, she or it has read this release and understands its terms and has been given an opportunity to ask questions of the Company’s Representatives and (ii) in signing this release he, she or it does not rely, and has not relied, on any representation or statement not set forth in this release made by any Representative of the Company or anyone else with regard to the subject matter, basis or effect of this release or otherwise. The Supporting Holder further represents and Stockholder acknowledges that he, she or it may hereafter discover facts in addition to or different from those which the he, she or it now knows or believes to be true with respect to the subject matter hereinof this Support Agreement, and that he, she or it may hereafter come to have a different understanding of the Law law that may apply to potential claims which the undersigned it is releasing hereunder, but the undersigned it affirms that, except as is otherwise specifically provided aboveherein, it is his, her or its intention to fully, finally and forever settle and release any and all Released Claims. In furtherance of this intention, the Supporting Holder Stockholder acknowledges that the releases contained herein shall be and remain in effect as full and complete general releases notwithstanding the discovery or existence of any such additional facts or different understandings of Lawlaw. The Stockholder knowingly and voluntarily waives and releases any and all rights and benefits it may now have, or in the future may have, under Section 1542 of the California Civil Code (or any analogous law of any other state), which reads as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” The Stockholder understands that Section 1542, or a comparable statute, rule, regulation or order of another jurisdiction, gives the Stockholder the right not to release existing Claims of which the Stockholder is not aware, unless the Stockholder voluntarily chooses to waive this right. Having been so apprised, the Stockholder nevertheless hereby voluntarily elects to and does waive any rights it may have that are described in Section 1542, or such other comparable statute, rule, regulation or order, and elects to assume all risks for Claims that exist, existed or may hereafter exist in its favor, known or unknown, suspected or unsuspected, arising out of or related to claims or other matters purported to be released pursuant to this Section 1.13, in each case, effective as of the Effective Time. The Stockholder acknowledges and agrees that the foregoing waiver is an essential and material term of the release provided pursuant to this Section 1.13 and that, without such waiver, the Acquiror and the Company would not have agreed to the terms of this Support Agreement.
(c) The Supporting Holder acknowledges that heNotwithstanding the foregoing provisions of this Section 1.13 or anything to the contrary set forth herein, she the Releasing Parties do not release or it may executedischarge, and may have executedeach Releasing Party expressly does not release or discharge: (i) any Claims that arise under or are based upon the terms of (A) this Support Agreement, additional releases the Merger Agreement, any of the Ancillary Agreements or any other document, certificate or Contract executed or delivered in connection with the MergerMerger Agreement; (B) the Registration Rights Agreement; or (C) any underwriting agreement, and for business combination marketing agreement, financial advisory agreement, engagement letter or any similar agreement in respect of the avoidance of doubt, transactions contemplated by the Supporting Holder will be bound by each release Merger Agreement to which he, she or it is a Releasing Party may be a party and that (in each case) is expressly disclosed in the Schedules of the Company, as each such releases will agreement or instrument described in this clause (i) may be cumulative amended in accordance with its terms and not exclusive the terms set forth in (x) the Merger Agreement or (y) this Support Agreement or the other Ancillary Agreements (if and to one anotherthe extent applicable), (ii) any rights with respect to the capital stock or warrants of the Company owned by such Releasing Party, or (iii) any Claims for indemnification, contribution, set-off, reimbursement or similar rights pursuant to any certificate of incorporation or bylaws of the Acquiror or any of its Subsidiaries or any indemnity or similar agreements by the Acquiror or any of its Subsidiaries with or for the benefit of a Releasing Party solely to the extent (in each case) set forth in the Schedules of the Company or as contemplated by Section 7.01 of the Merger Agreement.
(d) Notwithstanding the foregoing provisions of this Section 1.13, nothing contained in this Support Agreement shall be construed as an admission by any party hereto of any liability of any kind to any other party hereto.
Appears in 2 contracts
Samples: Company Support Agreement (Tlgy Acquisition Corp), Merger Agreement (Tlgy Acquisition Corp)
Waiver and Release of Claims. Each Supporting Holder covenants and agrees, severally with respect to such Supporting Holder only and not with respect to any other Supporting Holder, as follows:
(a) Effective upon the Closing, in consideration for the undersigned Supporting Holder’s portion of the Merger Consideration, such Supporting Holder, on behalf of himself, herself or itself, and his, her or its Affiliates and equityholders (if the Supporting Holder is an entity) and each of their respective successors and assigns, hereby fully, unconditionally and irrevocably waives, releases, acquits and forever discharges the SPAC Parties and the Company, and each Subsidiary and Affiliate of the foregoing and their respective Representatives and equityholders, and each of their respective successors and assigns (collectively, “Released Parties”) from any claims, suits, demands, debts, accounts, covenants, contracts, arrangements, promises, obligations, damages, judgments, debts, dues, or liabilities of any kind, actions, and causes of action of every kind and nature, or otherwise (including claims for damages, costs, expenses, and attorneys’, brokers’ and accountants’ fees and expenses), in law or equity (“Action”), which the Supporting Holder has or may have against any Released Party, whether known or unknown, suspected or unsuspected, accrued or fixed, absolute or contingent, matured or unmatured, determined or determinable, and that now exist or may hereafter exist (collectively, “Claims”) solely to the extent such Claims arise or relate to any inaccuracy or miscalculation in the portion of the Merger Consideration received by such Supporting Holder in connection with the Closing (collectively, the “Released Claims”). The Supporting Holder shall refrain from directly or indirectly asserting any claim or commencing (or causing to be commenced) any Action of any kind before any Governmental Authority against any Released Party based upon any Released Claim. The release contained herein is effective without regard to the legal nature of the claims raised and without regard to whether any such claims are based upon tort, equity, law, implied or express contract, discrimination of any sort or any other grounds. To the extent permitted by applicable Law, the undersigned Supporting Holder expressly waives the benefit of any Law, which, if applied to the release set forth herein, would otherwise exclude from its binding effect any claim not known on the date hereof to exist.
(b) The Supporting Holder represents and acknowledges that: (i) he, she or it has read this release and understands its terms and has been given an opportunity to ask questions of the Company’s Representatives and (ii) in signing this release he, she or it does not rely, and has not relied, on any representation or statement not set forth in this release made by any Representative of the Company or anyone else with regard to the subject matter, basis or effect of this release or otherwise. The Supporting Holder further represents and acknowledges that he, she or it may hereafter discover facts in addition to or different from those which the he, she or it now knows or believes to be true with respect to the subject matter herein, and that he, she or it may hereafter come to have a different understanding of the Law that may apply to potential claims which the undersigned is releasing hereunder, but the undersigned affirms that, except as is otherwise specifically provided above, it is his, her or its intention to fully, finally and forever settle and release any and all Released Claims. In furtherance of this intention, the Supporting Holder acknowledges that the releases contained herein shall be and remain in effect as full and complete general releases notwithstanding the discovery or existence of any such additional facts or different understandings of Law.
(c) The Supporting Holder acknowledges that he, she or it may execute, and may have executed, additional releases in connection with the MergerTransactions, and for the avoidance of doubt, the Supporting Holder will be bound by each release to which he, she or it is a party and such releases will be cumulative and not exclusive to one another.
Appears in 2 contracts
Samples: Unit Purchase Agreement (Dune Acquisition Corp), Support Agreement (Dune Acquisition Corp)
Waiver and Release of Claims. Each Supporting Holder The Sponsor hereby covenants and agrees, severally with respect to such Supporting Holder only and not with respect to any other Supporting Holder, agrees as follows:
(a) Effective Subject to and conditioned upon the ClosingEffective Time, in consideration for the undersigned Supporting Holder’s portion effective as of the Merger ConsiderationEffective Time (and subject to the limitations set forth in paragraph (c) below), such Supporting Holderthe Sponsor, on behalf of himself, herself or itself, itself and his, her or its Affiliates and equityholders (if the Supporting Holder is an entity) its and each of their respective successors and successors, assigns, representatives, administrators, executors and agents, and any other person or entity claiming by, through, or under any of the foregoing (each a “Releasing Party” and, collectively, the “Releasing Parties,” provided, for the avoidance of doubt, that the Acquiror, shall not be deemed a Releasing Party hereunder), does hereby fully, unconditionally and irrevocably waivesrelease, releases, acquits waive and forever discharges discharge the SPAC Parties and Acquiror, the Company, and each Subsidiary of their past and Affiliate of the foregoing and their respective Representatives and equityholderspresent directors, officers, employees, agents, predecessors, successors, assigns, and each of their respective successors and assigns (collectivelySubsidiaries, “Released Parties”) from any and all past or present claims, suits, demands, debts, accounts, covenants, contracts, arrangements, promises, obligations, damages, judgments, debts, dues, or causes of action and liabilities of any kind, actions, and causes of action of every kind and nature, or otherwise (including claims for damages, costs, expenses, and attorneys’, brokers’ and accountants’ fees and expenses), in law or equity (“Action”), which the Supporting Holder has or may have against any Released Partynature whatsoever, whether known or unknownnot known, suspected or unsuspectedclaimed, accrued arising directly or fixedindirectly from any act, absolute omission, event or contingent, matured transaction occurring (or unmatured, determined any circumstances existing) at or determinable, and that now exist or may hereafter exist (collectively, “Claims”) solely prior to the extent such Claims arise or relate to any inaccuracy or miscalculation in the portion of the Merger Consideration received by such Supporting Holder in connection with the Closing Effective Time (each a “Claim” and, collectively, the “Released Claims”). The Supporting Holder shall refrain from directly or indirectly asserting any claim or commencing (or causing to be commenced) any Action of any kind before any Governmental Authority against any Released Party based upon any Released Claim. The release contained herein is effective without regard to the legal nature of the claims raised and without regard to whether any such claims are based upon tort, equity, law, implied or express contract, discrimination of any sort or any other grounds. To the extent permitted by applicable Law, the undersigned Supporting Holder expressly waives the benefit of any Law, which, if applied to the release set forth herein, would otherwise exclude from its binding effect any claim not known on the date hereof to exist.
(b) The Supporting Holder represents and acknowledges that: (i) he, she or it has read this release and understands its terms and has been given an opportunity to ask questions of the Company’s Representatives and (ii) in signing this release he, she or it does not rely, and has not relied, on any representation or statement not set forth in this release made by any Representative of the Company or anyone else with regard to the subject matter, basis or effect of this release or otherwise. The Supporting Holder further represents and Sponsor acknowledges that he, she or it may hereafter discover facts in addition to or different from those which the he, she or it now knows or believes to be true with respect to the subject matter hereinof this Agreement, and that he, she or it may hereafter come to have a different understanding of the Law law that may apply to potential claims which the undersigned it is releasing hereunder, but the undersigned it affirms that, except as is otherwise specifically provided aboveherein, it is his, her or its intention to fully, finally and forever settle and release any and all Released Claims. In furtherance of this intention, the Supporting Holder Sponsor acknowledges that the releases contained herein shall be and remain in effect as full and complete general releases notwithstanding the discovery or existence of any such additional facts or different understandings of Lawlaw. The Sponsor knowingly and voluntarily waives and releases any and all rights and benefits it may now have, or in the future may have, under Section 1542 of the California Civil Code (or any analogous law of any other state), which reads as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” The Sponsor understands that Section 1542, or a comparable statute, rule, regulation or order of another jurisdiction, gives the Sponsor the right not to release existing Claims of which the Sponsor is not aware, unless the Sponsor voluntarily chooses to waive this right. Having been so apprised, the Sponsor nevertheless hereby voluntarily elects to and does waive any rights it may have that are described in Section 1542, or such other comparable statute, rule, regulation or order, and elects to assume all risks for Claims that exist, existed or may hereafter exist in its favor, known or unknown, suspected or unsuspected, arising out of or related to claims or other matters purported to be released pursuant to this Section 1.8, in each case, effective as of the Effective Time. The Sponsor acknowledges and agrees that the foregoing waiver is an essential and material term of the release provided pursuant to this Section 1.8 and that, without such waiver, the Acquiror and the Company would not have agreed to the terms of this Agreement.
(c) The Supporting Holder acknowledges that heNotwithstanding the foregoing provisions of this Section 1.8 or anything to the contrary set forth herein, she the Releasing Parties do not release or it may executedischarge, and may have executedeach Releasing Party expressly does not release or discharge: (i) any Claims that arise under or are based upon the terms of (A) this Agreement, additional releases the Merger Agreement, any of the Ancillary Agreements or any other document, certificate or Contract executed or delivered in connection with the MergerMerger Agreement; (B) the Insider Agreement, and for (C) the avoidance Registration Rights Agreement; or (D) any underwriting agreement, business combination marketing agreement, financial advisory agreement, engagement letter or any similar agreement in respect of doubt, the Supporting Holder will be bound transactions contemplated by each release the Merger Agreement to which he, she or it is a Releasing Party may be a party and that (in each case) is expressly disclosed in the Schedules of Acquiror, as each such releases will agreement or instrument described in this clause (i) may be cumulative amended in accordance with its terms and not exclusive the terms set forth in (x) the Merger Agreement or (y) this Agreement or the other Ancillary Agreements (if and to one anotherthe extent applicable), (ii) any rights with respect to the capital stock or warrants of the Acquiror owned by such Releasing Party, or (iii) any Claims for indemnification, contribution, set-off, reimbursement or similar rights pursuant to any certificate of incorporation or bylaws of the Acquiror or any of its Subsidiaries or any indemnity or similar agreements by the Acquiror or any of its Subsidiaries with or for the benefit of a Releasing Party solely to the extent (in each case) set forth in the Schedules of Acquiror or as contemplated by Section 7.01 of the Merger Agreement.
(d) Notwithstanding the foregoing provisions of this Section 1.8, nothing contained in this Agreement shall be construed as an admission by any party hereto of any liability of any kind to any other party hereto.
Appears in 2 contracts
Samples: Acquiror Support Agreement (Tlgy Acquisition Corp), Merger Agreement (Tlgy Acquisition Corp)
Waiver and Release of Claims. Each Supporting Holder The Stockholder hereby covenants and agrees, severally with respect to such Supporting Holder only and not with respect to any other Supporting Holder, agrees as follows:
(a) Effective Subject to and conditioned upon the ClosingEffective Time, in consideration for the undersigned Supporting Holder’s portion effective as of the Merger ConsiderationEffective Time (and subject to the limitations set forth in paragraph (c) below), such Supporting Holderthe Stockholder, on behalf of himself, herself or itself, itself and his, her or its Affiliates and equityholders (if the Supporting Holder is an entity) its and each of their respective successors and successors, assigns, representatives, administrators, executors and agents, and any other person or entity claiming by, through, or under any of the foregoing (each a “Releasing Party” and, collectively, the “Releasing Parties,” provided, for the avoidance of doubt, that the Acquiror, shall not be deemed a Releasing Party hereunder), does hereby fully, unconditionally and irrevocably waivesrelease, releases, acquits waive and forever discharges discharge the SPAC Parties and Acquiror, the Company, and each Subsidiary of their past and Affiliate of the foregoing and their respective Representatives and equityholderspresent directors, officers, employees, agents, predecessors, successors, assigns, and each of their respective successors and assigns (collectivelySubsidiaries, “Released Parties”) from any and all past or present claims, suits, demands, debts, accounts, covenants, contracts, arrangements, promises, obligations, damages, judgments, debts, dues, or causes of action and liabilities of any kind, actions, and causes of action of every kind and nature, or otherwise (including claims for damages, costs, expenses, and attorneys’, brokers’ and accountants’ fees and expenses), in law or equity (“Action”), which the Supporting Holder has or may have against any Released Partynature whatsoever, whether known or unknownnot known, suspected or unsuspectedclaimed, accrued arising directly or fixedindirectly from any act, absolute omission, event or contingent, matured transaction occurring (or unmatured, determined any circumstances existing) at or determinable, and that now exist or may hereafter exist (collectively, “Claims”) solely prior to the extent such Claims arise or relate to any inaccuracy or miscalculation in the portion of the Merger Consideration received by such Supporting Holder in connection with the Closing Effective Time (each a “Claim” and, collectively, the “Released Claims”). The Supporting Holder shall refrain from directly or indirectly asserting any claim or commencing (or causing to be commenced) any Action of any kind before any Governmental Authority against any Released Party based upon any Released Claim. The release contained herein is effective without regard to the legal nature of the claims raised and without regard to whether any such claims are based upon tort, equity, law, implied or express contract, discrimination of any sort or any other grounds. To the extent permitted by applicable Law, the undersigned Supporting Holder expressly waives the benefit of any Law, which, if applied to the release set forth herein, would otherwise exclude from its binding effect any claim not known on the date hereof to exist.
(b) The Supporting Holder represents and acknowledges that: (i) he, she or it has read this release and understands its terms and has been given an opportunity to ask questions of the Company’s Representatives and (ii) in signing this release he, she or it does not rely, and has not relied, on any representation or statement not set forth in this release made by any Representative of the Company or anyone else with regard to the subject matter, basis or effect of this release or otherwise. The Supporting Holder further represents and Stockholder acknowledges that he, she or it may hereafter discover facts in addition to or different from those which the he, she or it now knows or believes to be true with respect to the subject matter hereinof this Support Agreement, and that he, she or it may hereafter come to have a different understanding of the Law law that may apply to potential claims which the undersigned it is releasing hereunder, but the undersigned it affirms that, except as is otherwise specifically provided aboveherein, it is his, her or its intention to fully, finally and forever settle and release any and all Released Claims. In furtherance of this intention, the Supporting Holder Stockholder acknowledges that the releases contained herein shall be and remain in effect as full and complete general releases notwithstanding the discovery or existence of any such additional facts or different understandings of Lawlaw. The Stockholder knowingly and voluntarily waives and releases any and all rights and benefits it may now have, or in the future may have, under Section 1542 of the California Civil Code (or any analogous law of any other state), which reads as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” The Stockholder understands that Section 1542, or a comparable statute, rule, regulation or order of another jurisdiction, gives the Stockholder the right not to release existing Claims of which the Stockholder is not aware, unless the Stockholder voluntarily chooses to waive this right. Having been so apprised, the Stockholder nevertheless hereby voluntarily elects to and does waive any rights it may have that are described in Section 1542, or such other comparable statute, rule, regulation or order, and elects to assume all risks for Claims that exist, existed or may hereafter exist in its favor, known or unknown, suspected or unsuspected, arising out of or related to claims or other matters purported to be released pursuant to this Section 1.11, in each case, effective as of the Effective Time. The Stockholder acknowledges and agrees that the foregoing waiver is an essential and material term of the release provided pursuant to this Section 1.11 and that, without such waiver, the Acquiror and the Company would not have agreed to the terms of this Support Agreement.
(c) The Supporting Holder acknowledges that heNotwithstanding the foregoing provisions of this Section 1.11 or anything to the contrary set forth herein, she the Releasing Parties do not release or it may executedischarge, and may have executedeach Releasing Party expressly does not release or discharge: (i) any Claims that arise under or are based upon the terms of (A) this Support Agreement, additional releases the Merger Agreement, any of the Ancillary Agreements or any other document, certificate or Contract executed or delivered in connection with the MergerMerger Agreement; (B) the Registration Rights Agreement; or (C) any underwriting agreement, and for business combination marketing agreement, financial advisory agreement, engagement letter or any similar agreement in respect of the avoidance of doubt, transactions contemplated by the Supporting Holder will be bound by each release Merger Agreement to which he, she or it is a Releasing Party may be a party and that (in each case) is expressly disclosed in the Schedules of the Company, as each such releases will agreement or instrument described in this clause (i) may be cumulative amended in accordance with its terms and not exclusive the terms set forth in (x) the Merger Agreement or (y) this Support Agreement or the other Ancillary Agreements (if and to one anotherthe extent applicable), (ii) any rights with respect to the capital stock or warrants of the Company owned by such Releasing Party or the promissory notes issued by the Company to such Releasing Party, or (iii) any Claims for indemnification, contribution, set-off, reimbursement or similar rights pursuant to any certificate of incorporation or bylaws of the Acquiror or any of its Subsidiaries or any indemnity or similar agreements by the Acquiror or any of its Subsidiaries with or for the benefit of a Releasing Party solely to the extent (in each case) set forth in the Schedules of the Company or as contemplated by Section 7.01 of the Merger Agreement.
(d) Notwithstanding the foregoing provisions of this Section 1.11, nothing contained in this Support Agreement shall be construed as an admission by any party hereto of any liability of any kind to any other party hereto.
Appears in 2 contracts
Samples: Merger Agreement (Nxu, Inc.), Company Support Agreement (Nxu, Inc.)
Waiver and Release of Claims. Each Supporting Holder covenants and agrees, severally with respect to such Supporting Holder only and not with respect to any other Supporting Holder, as follows:
(a) Effective upon the Closing, in consideration for the undersigned Supporting Holder’s portion Borrower and each Guarantor signing below (each of the Merger Considerationforegoing being a "Releasing Party") hereby releases, such Supporting Holder, on behalf of himself, herself or itselfacquits, and hisdischarges Bank and Bank's employees, her or its Affiliates and equityholders (if the Supporting Holder is an entity) and each of their respective agents, representative, consultants, attorneys, fiduciaries, servants, officers, directors, partners, predecessors, successors and assigns, hereby fullysubsidiary corporations, unconditionally and irrevocably waives, releases, acquits and forever discharges the SPAC Parties and the Companyparent corporations, and each Subsidiary and Affiliate related corporate divisions (all of the foregoing and their respective Representatives and equityholders, and each of their respective successors and assigns (collectively, “hereinafter called the "Released Parties”) "), from any claimsall actions and causes of action, judgments, executions, suits, debts, claims, demands, debts, accounts, covenants, contracts, arrangements, promisesliabilities, obligations, damages, judgments, debts, dues, or liabilities and expenses of any kindand every character, actions, and causes of action of every kind and nature, or otherwise (including claims for damages, costs, expenses, and attorneys’, brokers’ and accountants’ fees and expenses), in law or equity (“Action”), which the Supporting Holder has or may have against any Released Party, whether known or unknown, suspected direct and/or indirect, at law or unsuspectedin equity, accrued of whatsoever kind or fixednature, absolute whether heretofore or contingenthereafter arising, matured for or unmaturedbecause of any matter or things done, determined omitted or determinablesuffered to be done by any of the Released Parties prior to and including the date of execution hereof, and that now exist in any way directly or may hereafter exist (collectivelyindirectly arising out of or in any way connect to this Agreement and the Existing Loan Documents, “Claims”) solely to the extent such Claims arise or relate including, but not limited to, claims relating to any inaccuracy or miscalculation in the portion settlement negotiation (all of the Merger Consideration received by such Supporting Holder foregoing hereinafter called the "Released Matters"). Each Releasing Party acknowledges that the agreements in this section are intended to be in full satisfaction of all or any alleged injuries or damages arising in connection with the Closing (collectively, the “Released Claims”). The Supporting Holder shall refrain from directly or indirectly asserting any claim or commencing (or causing to be commenced) any Action of any kind before any Governmental Authority against any Released Party based upon any Released Claim. The release contained herein is effective without regard to the legal nature of the claims raised and without regard to whether any such claims are based upon tort, equity, law, implied or express contract, discrimination of any sort or any other grounds. To the extent permitted by applicable Law, the undersigned Supporting Holder expressly waives the benefit of any Law, which, if applied to the release set forth herein, would otherwise exclude from its binding effect any claim not known on the date hereof to existMatters.
(b) The Supporting Holder represents and Each Releasing Party acknowledges that: (i) he, she or that it has read this release and understands its terms and has been given an opportunity to ask questions of the Company’s Representatives and (ii) in signing this release he, she or it does not rely, and has not relied, on any representation or statement not in executing the release set forth in this release made section, upon any representations, warranties, or conditions by Bank or any Representative of the Company or anyone else with regard to the subject matter, basis or effect of this release or otherwise. The Supporting Holder further represents and acknowledges that he, she or it may hereafter discover facts in addition to or different from those which the he, she or it now knows or believes to be true with respect to the subject matter herein, and that he, she or it may hereafter come to have a different understanding of the Law that may apply to potential claims which the undersigned is releasing hereunder, but the undersigned affirms that, other entity except as is otherwise are specifically provided above, it is his, her or its intention to fully, finally and forever settle and release any and all Released Claims. In furtherance of set forth in this intention, the Supporting Holder acknowledges that the releases contained herein shall be and remain in effect as full and complete general releases notwithstanding the discovery or existence of any such additional facts or different understandings of LawAgreement.
(c) The Supporting Holder acknowledges Nothing contained herein shall be construed at any time as an admission by Bank of any liability to Borrower or any other entity.
(d) Each Releasing Party warrants to Bank that heit has not purported to transfer, she assign, or otherwise convey any right, title or interest of such Releasing Party in any Released Matter to any other entity, and that the foregoing constitutes a full and complete release of all Released Matters.
(e) Each Releasing Party hereby waives all rights which it may executehave under the provisions of California Civil Code Section 1542, and may which reads as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have executed, additional releases in connection materially affected his settlement with the Merger, and for the avoidance of doubt, the Supporting Holder will be bound by each release to which he, she or it is a party and such releases will be cumulative and not exclusive to one anotherdebtor.
Appears in 1 contract
Samples: Loan Modification and Forbearance Agreement (Giga Information Group Inc)
Waiver and Release of Claims. Each Supporting Holder covenants and agrees, severally with respect to such Supporting Holder only and not with respect to any other Supporting Holder, as follows:
(a) Effective upon the Closing, in consideration for the undersigned Supporting Holder’s portion Borrower and each Guarantor signing below (each of the Merger Considerationforegoing being a "Releasing Party") hereby releases, such Supporting Holder, on behalf of himself, herself or itselfacquits, and hisdischarges Bank and Bank's employees, her or its Affiliates and equityholders (if the Supporting Holder is an entity) and each of their respective agents, representative, consultants, attorneys, fiduciaries, servants, officers, directors, partners, predecessors, successors and assigns, hereby fullysubsidiary corporations, unconditionally and irrevocably waives, releases, acquits and forever discharges the SPAC Parties and the Companyparent corporations, and each Subsidiary and Affiliate related corporate divisions (all of the foregoing and their respective Representatives and equityholders, and each of their respective successors and assigns (collectively, “hereinafter called the "Released Parties”) "), from any claimsall actions and causes at action, judgments, executions, suits, debts, claims, demands, debts, accounts, covenants, contracts, arrangements, promisesliabilities, obligations, damages, judgments, debts, dues, or liabilities and expenses of any kindand every character, actions, and causes of action of every kind and nature, or otherwise (including claims for damages, costs, expenses, and attorneys’, brokers’ and accountants’ fees and expenses), in law or equity (“Action”), which the Supporting Holder has or may have against any Released Party, whether known or unknown, suspected direct and/or indirect, at law or unsuspectedin equity, accrued of whatsoever kind or fixednature, absolute whether heretofore or contingenthereafter arising, matured for or unmaturedbecause of any matter or things done, determined omitted or determinablesuffered to be done by any of the Released Parties prior to and including the date of execution hereof, and that now exist in any way directly or may hereafter exist (collectivelyindirectly arising out of or in any way connect to this Agreement and the Existing Loan Documents, “Claims”) solely to the extent such Claims arise or relate including, but not limited to, claims relating to any inaccuracy or miscalculation in the portion settlement negotiation (all of the Merger Consideration received by such Supporting Holder foregoing hereinafter called the "Released Maters"). Each Releasing Party acknowledges that the agreements in this section are intended to be in full satisfaction of all or any alleged injuries or damages arising in connection with the Closing (collectively, the “Released Claims”). The Supporting Holder shall refrain from directly or indirectly asserting any claim or commencing (or causing to be commenced) any Action of any kind before any Governmental Authority against any Released Party based upon any Released Claim. The release contained herein is effective without regard to the legal nature of the claims raised and without regard to whether any such claims are based upon tort, equity, law, implied or express contract, discrimination of any sort or any other grounds. To the extent permitted by applicable Law, the undersigned Supporting Holder expressly waives the benefit of any Law, which, if applied to the release set forth herein, would otherwise exclude from its binding effect any claim not known on the date hereof to existMatters.
(b) The Supporting Holder represents and Each Releasing Party acknowledges that: (i) he, she or that it has read this release and understands its terms and has been given an opportunity to ask questions of the Company’s Representatives and (ii) in signing this release he, she or it does not rely, and has not relied, on any representation or statement not in executing the release set forth in this release made section, upon any representations, warranties, or conditions by Bank or any Representative of the Company or anyone else with regard to the subject matter, basis or effect of this release or otherwise. The Supporting Holder further represents and acknowledges that he, she or it may hereafter discover facts in addition to or different from those which the he, she or it now knows or believes to be true with respect to the subject matter herein, and that he, she or it may hereafter come to have a different understanding of the Law that may apply to potential claims which the undersigned is releasing hereunder, but the undersigned affirms that, other entity except as is otherwise are specifically provided above, it is his, her or its intention to fully, finally and forever settle and release any and all Released Claims. In furtherance of set forth in this intention, the Supporting Holder acknowledges that the releases contained herein shall be and remain in effect as full and complete general releases notwithstanding the discovery or existence of any such additional facts or different understandings of LawAgreement.
(c) The Supporting Holder acknowledges Nothing contained herein shall be construed at any time as an admission by Bank of any liability to Borrower or any other entity.
(d) Each Releasing Party warrants to Bank that heit has not purported to transfer, she assign, or otherwise convey any right, title or interest of such Releasing Party in any Released Matter to any other entity, and that the foregoing constitutes a full and complete release of all Released Matters.
(e) Each Releasing Party hereby waives all rights which it may executehave under the provisions of California Civil Code Section 1542, and may have executed, additional releases in connection with the Merger, and for the avoidance of doubt, the Supporting Holder will be bound by each release to which he, she or it is a party and such releases will be cumulative and not exclusive to one another.reads as follows:
Appears in 1 contract
Samples: Loan Modification and Forbearance Agreement (Giga Information Group Inc)
Waiver and Release of Claims. Each Supporting Holder covenants and agrees, severally with respect to such Supporting Holder only and not with respect to any other Supporting Holder, as follows:
(a) Effective upon the Closing, in a. In consideration for the undersigned Supporting Holder’s portion of the Merger Considerationcommitments undertaken by Trex and outlined in this Agreement, such Supporting HolderEmployee, on behalf of for himself, herself or itselfhis attorneys, and hisheirs, her or its Affiliates and equityholders (if the Supporting Holder is an entity) and each of their respective successors executors, administrators, successors, and assigns, does hereby fully, unconditionally and irrevocably waives, releases, acquits fully and forever discharges release and discharge the SPAC Parties Trex Affiliates and the Company, and each Subsidiary and Affiliate of the foregoing and their respective Representatives and equityholders, and each all of their respective successors subsidiaries, affiliate corporations and assigns all related entities, as well as all of their predecessors, successors, assigns, directors, officers, agents, employees, former employees, insurers and attorneys (collectively, hereinafter “Released PartiesReleasees”) from any all suits, causes of action, and/or claims, suitsdemands or entitlements of any nature whatsoever, demandswhether known, debts, accounts, covenants, contracts, arrangements, promises, obligations, damages, judgments, debts, duesunknown, or liabilities of any kind, actions, and causes of action of every kind and nature, or otherwise (including claims for damages, costs, expenses, and attorneys’, brokers’ and accountants’ fees and expenses), in law or equity (“Action”)unforeseen, which the Supporting Holder he has or may have against any Released Party, whether known the Releasees arising out of or unknown, suspected or unsuspected, accrued or fixed, absolute or contingent, matured or unmatured, determined or determinable, and that now exist or may hereafter exist (collectively, “Claims”) solely to the extent such Claims arise or relate to any inaccuracy or miscalculation in the portion of the Merger Consideration received by such Supporting Holder in connection with his employment (and the Closing (collectivelytermination thereof) by Trex, or any related event, transaction, or matter occurring or existing on or before the “Released Claims”)date of his execution of this Agreement. The Supporting Holder shall refrain from directly Employee agrees, without limiting the generality of this Release, not to file or indirectly asserting otherwise institute any claim or commencing (lawsuit seeking damages and not to otherwise assert any claims that are lawfully released herein. Employee further hereby irrevocably and unconditionally waives any and all rights to recover any relief or causing to be commenced) damages concerning the claims that are lawfully released herein. Employee represents and warrants that he has not previously filed or joined in any Action such claims, demands or entitlements against the Releasees and that he shall indemnify and hold harmless the Releasees from all liabilities, claims, demands, costs, and/or expenses incurred as a result of any kind before any Governmental Authority against any Released Party based upon any Released Claim. The release contained herein such claims.
b. This Release specifically includes, but is effective without regard not limited to, all claims relating to Employee’s employment and the legal nature termination of the that employment, all claims raised and without regard to whether any such claims are based upon tort, equity, law, implied or express of breach of contract, employment discrimination (including, but not limited to, discrimination on the basis of any sort race, sex, religion, national origin, age, disability or any other grounds. To protected status, and coming within the extent permitted by applicable Lawscope of Title VII of the Civil Rights Act, the undersigned Supporting Holder expressly waives Age Discrimination in Employment Act, the benefit Older Workers Benefit Protection Act, the Americans with Disabilities Act, the Family & Medical Leave Act, the Virginia Human Rights Act, all as amended, or any other applicable state, federal, or local law), claims under the Employee Retirement Income Security Act, as amended, claims under the Fair Labor Standards Act, as amended, the Virginia Wage Payment Act, as amended (or any other applicable federal, state or local statute relating to payment of any Law, which, if applied to the release set forth herein, would otherwise exclude from its binding effect any claim not known on the date hereof to exist.
(b) The Supporting Holder represents and acknowledges that: (i) he, she or it has read this release and understands its terms and has been given an opportunity to ask questions of the Company’s Representatives and (ii) in signing this release he, she or it does not relywages), and has not reliedclaims concerning recruitment, on hiring, discharge, promotions, transfers, right to reemployment, wages, bonus or incentive pay, severance pay, stock, stock options, benefits due, sick leave, holiday pay, vacation pay, life insurance, pension, 401(k) or other retirement plan, any representation other leave, group medical insurance, any other fringe benefits, worker’s compensation, termination, employment status, libel, slander, defamation, fraud, intentional or statement not set forth in this release made by any Representative negligent misrepresentation and/or infliction of the Company or anyone else emotional distress, together with regard to the subject matter, basis or effect of this release or otherwise. The Supporting Holder further represents and acknowledges that he, she or it may hereafter discover facts in addition to or different from those which the he, she or it now knows or believes to be true with respect to the subject matter herein, and that he, she or it may hereafter come to have a different understanding of the Law that may apply to potential claims which the undersigned is releasing hereunder, but the undersigned affirms that, except as is otherwise specifically provided above, it is his, her or its intention to fully, finally and forever settle and release any and all Released Claims. In furtherance tort, contract, or other claims which might have been asserted by Employee or on his behalf in any suit, charge of this intentiondiscrimination, or claim against the Supporting Holder acknowledges that the releases contained herein shall be and remain in effect as full and complete general releases notwithstanding the discovery or existence of any such additional facts or different understandings of LawReleasees.
(c) The Supporting Holder acknowledges that he, she or it may execute, and may have executed, additional releases in connection with the Merger, and for the avoidance of doubt, the Supporting Holder will be bound by each release to which he, she or it is a party and such releases will be cumulative and not exclusive to one another.
Appears in 1 contract
Waiver and Release of Claims. Each Supporting Holder Sponsor covenants and agrees, severally with respect to such Supporting Holder only and not with respect to any other Supporting Holder, agrees as follows:
(a) Effective Subject to and conditioned upon the Closing, in consideration for the undersigned Supporting Holder’s portion effective as of the Merger ConsiderationClosing (and subject to the limitations set forth in paragraph (c) below), such Supporting HolderSponsor, on behalf of himself, herself or itself, itself and his, her or its Affiliates and equityholders (if the Supporting Holder is an entity) its and each of their respective successors and successors, assigns, representatives, administrators, executors and agents, and any other person or entity claiming by, through, or under any of the foregoing (each a “Releasing Party” and, collectively, the “Releasing Parties,” provided, for the avoidance of doubt, that the Purchaser, shall not be deemed a Releasing Party hereunder), does hereby fully, unconditionally and irrevocably waivesrelease, releases, acquits waive and forever discharges discharge the SPAC Parties and Purchaser, the Company, and each Subsidiary of their past and Affiliate of the foregoing and their respective Representatives and equityholderspresent directors, officers, employees, agents, predecessors, successors, assigns, and each of their respective successors and assigns (collectivelySubsidiaries, “Released Parties”) from any and all past or present claims, suits, demands, debts, accounts, covenants, contracts, arrangements, promises, obligations, damages, judgments, debts, dues, or causes of action and liabilities of any kind, actions, and causes of action of every kind and nature, or otherwise (including claims for damages, costs, expenses, and attorneys’, brokers’ and accountants’ fees and expenses), in law or equity (“Action”), which the Supporting Holder has or may have against any Released Partynature whatsoever, whether known or unknownnot known, suspected or unsuspectedclaimed, accrued arising directly or fixedindirectly from any act, absolute omission, event or contingent, matured transaction occurring (or unmatured, determined any circumstances existing) at or determinable, and that now exist or may hereafter exist (collectively, “Claims”) solely prior to the extent such Claims arise or relate to any inaccuracy or miscalculation in the portion of the Merger Consideration received by such Supporting Holder in connection with the Closing (each a “Claim” and, collectively, the “Released Claims”). The Supporting Holder shall refrain from directly or indirectly asserting any claim or commencing (or causing to be commenced) any Action of any kind before any Governmental Authority against any Released Party based upon any Released Claim. The release contained herein is effective without regard to the legal nature of the claims raised and without regard to whether any such claims are based upon tort, equity, law, implied or express contract, discrimination of any sort or any other grounds. To the extent permitted by applicable Law, the undersigned Supporting Holder expressly waives the benefit of any Law, which, if applied to the release set forth herein, would otherwise exclude from its binding effect any claim not known on the date hereof to exist.
(b) The Supporting Holder represents and acknowledges that: (i) he, she or it has read this release and understands its terms and has been given an opportunity to ask questions of the Company’s Representatives and (ii) in signing this release he, she or it does not rely, and has not relied, on any representation or statement not set forth in this release made by any Representative of the Company or anyone else with regard to the subject matter, basis or effect of this release or otherwise. The Supporting Holder further represents and Sponsor acknowledges that he, she or it may hereafter discover facts in addition to or different from those which the he, she or it now knows or believes to be true with respect to the subject matter hereinof this Agreement, and that he, she or it may hereafter come to have a different understanding of the Law law that may apply to potential claims which the undersigned it is releasing hereunder, but the undersigned it affirms that, except as is otherwise specifically provided aboveherein, it is his, her or its intention to fully, finally and forever settle and release any and all Released Claims. In furtherance of this intention, the Supporting Holder Sponsor acknowledges that the releases contained herein shall be and remain in effect as full and complete general releases notwithstanding the discovery or existence of any such additional facts or different understandings of Lawlaw. Sponsor knowingly and voluntarily waives and releases any and all rights and benefits it may now have, or in the future may have, under Section 1542 of the California Civil Code (or any analogous law of any other state), which reads as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” Sponsor understands that Section 1542, or a comparable statute, rule, regulation or order of another jurisdiction, gives Sponsor the right not to release existing Claims of which Sponsor is not aware, unless Sponsor voluntarily chooses to waive this right. Having been so apprised, Sponsor nevertheless hereby voluntarily elects to and does waive any rights it may have that are described in Section 1542, or such other comparable statute, rule, regulation or order, and elects to assume all risks for Claims that exist, existed or may hereafter exist in its favor, known or unknown, suspected or unsuspected, arising out of or related to claims or other matters purported to be released pursuant to this Section 3, in each case, effective as of the Closing. Sponsor acknowledges and agrees that the foregoing waiver is an essential and material term of the release provided pursuant to this Section 3 and that, without such waiver, the Purchaser and the Company would not have agreed to the terms of this Agreement.
(c) The Supporting Holder acknowledges that heNotwithstanding the foregoing provisions of this Section 3 or anything to the contrary set forth herein, she the Releasing Parties do not release or it may executedischarge, and may have executedeach Releasing Party expressly does not release or discharge: (i) any Claims that arise under or are based upon the terms of (A) this Agreement, additional releases the Merger Agreement, any of the Ancillary Agreements, any Letter of Transmittal or any other document, certificate or Contract executed or delivered in connection with the MergerMerger Agreement; (B) the Insider Letter, and for (C) the avoidance Registration Rights Agreement; or (D) any underwriting agreement, business combination marketing agreement, financial advisory agreement, engagement letter or any similar agreement in respect of doubt, the Supporting Holder will be bound transactions contemplated by each release the Merger Agreement to which he, she or it is a Releasing Party may be a party and that (in each case) is expressly disclosed in the Purchaser Disclosure Schedules, as each such releases will agreement or instrument described in this clause (i) may be cumulative amended in accordance with its terms and not exclusive the terms set forth in (x) the Merger Agreement or (y) this Agreement or the other Ancillary Agreements (if and to one anotherthe extent applicable), (ii) any rights with respect to the capital stock or warrants of the Purchaser owned by such Releasing Party, or (iii) any Claims for indemnification, contribution, set-off, reimbursement or similar rights pursuant to any certificate of incorporation or bylaws of the Purchaser or any of its Subsidiaries or any indemnity or similar agreements by the Purchaser or any of its Subsidiaries with or for the benefit of a Releasing Party solely to the extent (in each case) set forth in the Purchaser Disclosure Schedule or as contemplated by Section 5.18 of the Merger Agreement.
(d) Notwithstanding the foregoing provisions of this Section 3, nothing contained in this Agreement shall be construed as an admission by any party hereto of any liability of any kind to any other party hereto.
Appears in 1 contract
Samples: Sponsor Support Agreement (Colombier Acquisition Corp.)
Waiver and Release of Claims. Each Supporting Holder Sponsor covenants and agrees, severally with respect to such Supporting Holder only and not with respect to any other Supporting Holder, agrees as follows:
(a) Effective upon as of the Closing, subject to the limitations set forth in consideration for the undersigned Supporting Holder’s portion of the Merger Considerationparagraph (c) below, such Supporting Holder, Sponsor on behalf of himselfitself and its Affiliates, herself or itselfsuccessors, assigns, representatives, administrators, executors and agents, and hisany other person or entity claiming by, her through, or its Affiliates under any of the foregoing (each a “Releasing Party” and, collectively, the “Releasing Parties”), does hereby unconditionally and equityholders (if irrevocably release, waive and forever discharge each of the Supporting Holder is an entity) Company, the Company’s Affiliates, SPAC, PubCo, Merger Sub 1 and Merger Sub 2 and each of their respective successors past and present directors, officers, employees, agents, predecessors, successors, assigns, hereby fullySubsidiaries, unconditionally and irrevocably waives, releases, acquits and forever discharges the SPAC Parties and the Company, and each Subsidiary and Affiliate of the foregoing and their respective Representatives and equityholders, and each of their respective successors and assigns (collectively, “Released Parties”) from any and all past or present claims, suits, demands, debts, accounts, covenants, contracts, arrangements, promises, obligations, damages, judgments, debts, dues, or causes of action and liabilities of any kind, actions, and causes of action of every kind and nature, or otherwise (including claims for damages, costs, expenses, and attorneys’, brokers’ and accountants’ fees and expenses), in law or equity (“Action”), which the Supporting Holder has or may have against any Released Partynature whatsoever, whether known or unknownnot known, suspected or unsuspectedclaimed, accrued arising directly or fixedindirectly from any act, absolute omission, event or contingent, matured transaction occurring (or unmatured, determined any circumstances existing) at or determinable, and that now exist or may hereafter exist (collectively, “Claims”) solely prior to the extent such Claims arise or relate to any inaccuracy or miscalculation in the portion of the Merger Consideration received by such Supporting Holder in connection with the Closing (each a “Claim” and, collectively, the “Released Claims”). The Supporting Holder shall refrain ; provided, however, that the release, waiver and discharge by Sponsor’s Affiliates is limited to Claims that arise from directly or indirectly asserting any claim or commencing (or causing to be commenced) any Action of any kind before any Governmental Authority against any Released Party based upon any Released Claim. The release contained herein is effective without regard to the legal nature of the claims raised and without regard to whether any such claims are based upon tort, equity, law, implied or express contract, discrimination of any sort or any other grounds. To the extent permitted by applicable Law, the undersigned Supporting Holder expressly waives the benefit of any Law, which, if applied to the release set forth herein, would otherwise exclude from its binding effect any claim not known on the date hereof to existTransactions.
(b) The Supporting Holder represents and acknowledges that: (i) he, she or it has read this release and understands its terms and has been given an opportunity to ask questions of the Company’s Representatives and (ii) in signing this release he, she or it does not rely, and has not relied, on any representation or statement not set forth in this release made by any Representative of the Company or anyone else with regard to the subject matter, basis or effect of this release or otherwise. The Supporting Holder further represents and Sponsor acknowledges that he, she or it may hereafter discover facts in addition to or different from those which the he, she or it now knows or believes to be true with respect to the subject matter hereinof this Agreement, and that he, she or it may hereafter come to have a different understanding of the Law law that may apply to potential claims which the undersigned it is releasing hereunder, but the undersigned it affirms that, except as is otherwise specifically provided aboveherein, it is his, her or its intention to fully, finally and forever settle and release any and all Released Claims. In furtherance of this intention, the Supporting Holder Sponsor acknowledges that the releases contained herein shall be and remain in effect as full and complete general releases notwithstanding the discovery or existence of any such additional facts or different understandings of Lawlaw.
(c) The Supporting Holder acknowledges that heNotwithstanding the foregoing provisions of this Section 3 or anything to the contrary set forth herein, she the Releasing Parties do not release or it may executedischarge, and may have executedeach Releasing Party expressly does not release or discharge: (i) any Claims that arise under or are based upon the terms of (A) this Agreement, additional releases the Merger Agreement, any of the Ancillary Agreements, any Letter of Transmittal or any other document, certificate or Contract executed or delivered in connection with the MergerMerger Agreement; (B) the Insider Letter, (C) the Amended and Restated Forward Purchase Contract, dated as of , 2021, by and between Sponsor and PubCo, (D) the registration rights agreement, dated as of January 28, 2021, by and among SPAC, Sponsor and the other Holders party thereto, (E) the expense advancement agreement, dated as of January 28, 2021, by and between SPAC and Sponsor, the promissory note, dated as of January 28, 2021 by SPAC in favor of the Sponsor, and any other promissory notes and/or expense advance agreements entered into by and between SPAC and Sponsor prior to the Closing without violation of the terms of the Merger Agreement; or (F) any PIPE Subscription Agreement to which a Releasing Party may be a party, as each such agreement or instrument described in this clause (i) may be amended in accordance with its terms, (ii) any rights with respect to the capital stock or warrants of SPAC owned by such Releasing Party, or (iii) any Claims for indemnification, contribution, set-off, reimbursement or similar rights pursuant to any certificate of incorporation or bylaws of SPAC or any of its Subsidiaries or any indemnity or similar agreements by SPAC or any of its Subsidiaries with or for the avoidance benefit of doubta Releasing Party.
(d) Notwithstanding the foregoing provisions of this Section 3, nothing contained in this Agreement shall be construed as an admission by any party hereto of any liability of any kind to any other party hereto. Notwithstanding anything to the Supporting Holder will contrary contained herein, Sponsor and SPAC (and each of their respective Affiliates) shall be bound by deemed not to be Affiliates of each release to which he, she or it is a party and such releases will be cumulative and not exclusive to one anotherother for purposes of this Section 3.
Appears in 1 contract
Waiver and Release of Claims. Each Supporting Holder Sponsor covenants and agrees, severally with respect to such Supporting Holder only and not with respect to any other Supporting Holder, agrees as follows:
(a) Effective Subject to and conditioned upon the Closing, in consideration for the undersigned Supporting Holder’s portion effective as of the Merger ConsiderationClosing (and subject to the limitations set forth in paragraph (c) below), such Supporting HolderSponsor, on behalf of himself, herself or itself, itself and his, her or its Affiliates and equityholders its and their respective successors, assigns, representatives, administrators, executors and agents, and any other person or entity claiming by, through, or under any of the foregoing (if each a “Releasing Party” and, collectively, the Supporting Holder is an entity) “Releasing Parties,” provided, for the avoidance of doubt, that none of SPAC, ExchangeCo or CallCo shall be deemed a Releasing Party hereunder), does hereby unconditionally and irrevocably release, waive and forever discharge each of SPAC, ExchangeCo, CallCo and each of their respective successors past and present directors, officers, employees, agents, predecessors, successors, assigns, hereby fullyand Subsidiaries, unconditionally and irrevocably waives, releases, acquits and forever discharges the SPAC Parties and the Company, and each Subsidiary and Affiliate of the foregoing and their respective Representatives and equityholders, and each of their respective successors and assigns (collectively, “Released Parties”) from any and all past or present claims, suits, demands, debts, accounts, covenants, contracts, arrangements, promises, obligations, damages, judgments, debts, dues, or causes of action and liabilities of any kind, actions, and causes of action of every kind and nature, or otherwise (including claims for damages, costs, expenses, and attorneys’, brokers’ and accountants’ fees and expenses), in law or equity (“Action”), which the Supporting Holder has or may have against any Released Partynature whatsoever, whether known or unknownnot known, suspected or unsuspectedclaimed, accrued arising directly or fixedindirectly from any act, absolute omission, event or contingent, matured transaction occurring (or unmatured, determined any circumstances existing) at or determinable, and that now exist or may hereafter exist (collectively, “Claims”) solely prior to the extent such Claims arise or relate to any inaccuracy or miscalculation in the portion of the Merger Consideration received by such Supporting Holder in connection with the Closing (each a “Claim” and, collectively, the “Released Claims”). The Supporting Holder shall refrain from directly or indirectly asserting any claim or commencing (or causing to be commenced) any Action of any kind before any Governmental Authority against any Released Party based upon any Released Claim. The release contained herein is effective without regard to the legal nature of the claims raised and without regard to whether any such claims are based upon tort, equity, law, implied or express contract, discrimination of any sort or any other grounds. To the extent permitted by applicable Law, the undersigned Supporting Holder expressly waives the benefit of any Law, which, if applied to the release set forth herein, would otherwise exclude from its binding effect any claim not known on the date hereof to exist.
(b) The Supporting Holder represents and acknowledges that: (i) he, she or it has read this release and understands its terms and has been given an opportunity to ask questions of the Company’s Representatives and (ii) in signing this release he, she or it does not rely, and has not relied, on any representation or statement not set forth in this release made by any Representative of the Company or anyone else with regard to the subject matter, basis or effect of this release or otherwise. The Supporting Holder further represents and Sponsor acknowledges that he, she or it may hereafter discover facts in addition to or different from those which the he, she or it now knows or believes to be true with respect to the subject matter hereinof this Agreement, and that he, she or it may hereafter come to have a different understanding of the Law law that may apply to potential claims which the undersigned it is releasing hereunder, but the undersigned it affirms that, except as is otherwise specifically provided aboveherein, it is his, her or its intention to fully, finally and forever settle and release any and all Released Claims. In furtherance of this intention, the Supporting Holder Sponsor acknowledges that the releases contained herein shall be and remain in effect as full and complete general releases notwithstanding the discovery or existence of any such additional facts or different understandings of Lawlaw. Sponsor knowingly and voluntarily waives and releases any and all rights and benefits it may now have, or in the future may have, under Section 1542 of the California Civil Code (or any analogous law of any other state), which reads as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” Sponsor understands that Section 1542, or a comparable statute, rule, regulation or order of another jurisdiction, gives Sponsor the right not to release existing Claims of which Sponsor is not aware, unless Sponsor voluntarily chooses to waive this right. Having been so apprised, Sponsor nevertheless hereby voluntarily elects to and does waive the rights described in Section 1542, or such other comparable statute, rule, regulation or order, and elects to assume all risks for Claims that exist, existed or may hereafter exist in its favor, known or unknown, suspected or unsuspected, arising out of or related to claims or other matters purported to be released pursuant to this Section 3, in each case, effective as of the Closing. Sponsor acknowledges and agrees that the foregoing waiver is an essential and material term of the release provided pursuant to this Section 3 and that, without such waiver, SPAC and the Company would not have agreed to the terms of this Agreement.
(c) The Supporting Holder acknowledges that heNotwithstanding the foregoing provisions of this Section 3 or anything to the contrary set forth herein, she the Releasing Parties do not release or it may executedischarge, and may have executedeach Releasing Party expressly does not release or discharge: (i) any Claims that arise under or are based upon the terms of (A) this Agreement, additional releases the BCA, any of the Ancillary Agreements, any Letter of Transmittal or any other document, certificate or Contract executed or delivered in connection with the MergerBCA; (B) the Insider Letter, (C) the Forward Purchase Contract, (D) the Amended and Restated Registration Rights Agreement, (E) the expense advancement agreement, dated as of February 18, 2021, by and between SPAC and Sponsor, the promissory note, dated as of February 18, 2021 by SPAC in favor of the Sponsor, and for any other promissory notes and/or expense advance agreements entered into by and between SPAC and Sponsor prior to the avoidance Closing without violation of doubt, the Supporting Holder will be bound by each release terms of the BCA; (F) any PIPE Subscription Agreement to which hea Releasing Party may be a party, she or it is (G) any underwriting agreement, business combination marketing agreement, financial advisory agreement, PIPE placement agent agreement, engagement letter or any similar agreement in respect of the Transactions to which a Releasing Party may be a party and that (in each case) is disclosed in the SPAC Disclosure Letter, as each such releases will agreement or instrument described in this clause (i) may be cumulative amended in accordance with its terms and not exclusive the terms set forth in (x) the BCA or (y) this Agreement or the other Ancillary Agreements (if and to one anotherthe extent applicable), (ii) any rights with respect to the capital stock or warrants of SPAC owned by such Releasing Party, or (iii) any Claims for indemnification, contribution, set-off, reimbursement or similar rights pursuant to any certificate of incorporation or bylaws of SPAC or any of its Subsidiaries or any indemnity or similar agreements by SPAC or any of its Subsidiaries with or for the benefit of a Releasing Party solely to the extent (in each case) set forth in the SPAC Disclosure Letter or as contemplated by Section 6.7 of the BCA.
(d) Notwithstanding the foregoing provisions of this Section 3, nothing contained in this Agreement shall be construed as an admission by any party hereto of any liability of any kind to any other party hereto.
Appears in 1 contract
Samples: Sponsor Support Agreement (CF Acquisition Corp. VI)
Waiver and Release of Claims. Each Supporting Holder Sponsor covenants and agrees, severally with respect to such Supporting Holder only and not with respect to any other Supporting Holder, agrees as follows:
(a) Effective upon as of the Closing, subject to the limitations set forth in consideration for the undersigned Supporting Holder’s portion of the Merger Considerationparagraph (c) below, such Supporting Holder, Sponsor on behalf of himselfitself and its Affiliates, herself or itselfsuccessors, assigns, representatives, administrators, executors and agents, and hisany other person or entity claiming by, her through, or its Affiliates under any of the foregoing (each a “Releasing Party” and, collectively, the “Releasing Parties”), does hereby unconditionally and equityholders (if irrevocably release, waive and forever discharge each of the Supporting Holder is an entity) Company, the Company’s Affiliates, SPAC, PubCo, Merger Sub 1 and Merger Sub 2 and each of their respective successors past and present directors, officers, employees, agents, predecessors, successors, assigns, hereby fullySubsidiaries, unconditionally and irrevocably waives, releases, acquits and forever discharges the SPAC Parties and the Company, and each Subsidiary and Affiliate of the foregoing and their respective Representatives and equityholders, and each of their respective successors and assigns (collectively, “Released Parties”) from any and all past or present claims, suits, demands, debts, accounts, covenants, contracts, arrangements, promises, obligations, damages, judgments, debts, dues, or causes of action and liabilities of any kind, actions, and causes of action of every kind and nature, or otherwise (including claims for damages, costs, expenses, and attorneys’, brokers’ and accountants’ fees and expenses), in law or equity (“Action”), which the Supporting Holder has or may have against any Released Partynature whatsoever, whether known or unknownnot known, suspected or unsuspectedclaimed, accrued arising directly or fixedindirectly from any act, absolute omission, event or contingent, matured transaction occurring (or unmatured, determined any circumstances existing) at or determinable, and that now exist or may hereafter exist (collectively, “Claims”) solely prior to the extent such Claims arise or relate to any inaccuracy or miscalculation in the portion of the Merger Consideration received by such Supporting Holder in connection with the Closing (each a “Claim” and, collectively, the “Released Claims”). The Supporting Holder shall refrain ; provided, however, that the release, waiver and discharge by Sponsor’s Affiliates is limited to Claims that arise from directly or indirectly asserting any claim or commencing (or causing to be commenced) any Action of any kind before any Governmental Authority against any Released Party based upon any Released Claim. The release contained herein is effective without regard to the legal nature of the claims raised and without regard to whether any such claims are based upon tort, equity, law, implied or express contract, discrimination of any sort or any other grounds. To the extent permitted by applicable Law, the undersigned Supporting Holder expressly waives the benefit of any Law, which, if applied to the release set forth herein, would otherwise exclude from its binding effect any claim not known on the date hereof to existTransactions.
(b) The Supporting Holder represents and acknowledges that: (i) he, she or it has read this release and understands its terms and has been given an opportunity to ask questions of the Company’s Representatives and (ii) in signing this release he, she or it does not rely, and has not relied, on any representation or statement not set forth in this release made by any Representative of the Company or anyone else with regard to the subject matter, basis or effect of this release or otherwise. The Supporting Holder further represents and Sponsor acknowledges that he, she or it may hereafter discover facts in addition to or different from those which the he, she or it now knows or believes to be true with respect to the subject matter hereinof this Agreement, and that he, she or it may hereafter come to have a different understanding of the Law law that may apply to potential claims which the undersigned it is releasing hereunder, but the undersigned it affirms that, except as is otherwise specifically provided aboveherein, it is his, her or its intention to fully, finally and forever settle and release any and all Released Claims. In furtherance of this intention, the Supporting Holder Sponsor acknowledges that the releases contained herein shall be and remain in effect as full and complete general releases notwithstanding the discovery or existence of any such additional facts or different understandings of Lawlaw.
(c) The Supporting Holder acknowledges that heNotwithstanding the foregoing provisions of this Section 3 or anything to the contrary set forth herein, she the Releasing Parties do not release or it may executedischarge, and may have executedeach Releasing Party expressly does not release or discharge: (i) any Claims that arise under or are based upon the terms of (A) this Agreement, additional releases the Merger Agreement, any of the Ancillary Agreements, any Letter of Transmittal or any other document, certificate or Contract executed or delivered in connection with the MergerMerger Agreement; (B) the Insider Letter, (C) the Amended and Restated Forward Purchase Contract, dated as of ________, 2021, by and between Sponsor and PubCo, (D) the registration rights agreement, dated as of January 28, 2021, by and among SPAC, Sponsor and the other Holders party thereto, (E) the expense advancement agreement, dated as of January 28, 2021, by and between SPAC and Sponsor, the promissory note, dated as of January 28, 2021 by SPAC in favor of the Sponsor, and any other promissory notes and/or expense advance agreements entered into by and between SPAC and Sponsor prior to the Closing without violation of the terms of the Merger Agreement; or (F) any PIPE Subscription Agreement to which a Releasing Party may be a party, as each such agreement or instrument described in this clause (i) may be amended in accordance with its terms, (ii) any rights with respect to the capital stock or warrants of SPAC owned by such Releasing Party, or (iii) any Claims for indemnification, contribution, set-off, reimbursement or similar rights pursuant to any certificate of incorporation or bylaws of SPAC or any of its Subsidiaries or any indemnity or similar agreements by SPAC or any of its Subsidiaries with or for the avoidance benefit of doubta Releasing Party.
(d) Notwithstanding the foregoing provisions of this Section 3, nothing contained in this Agreement shall be construed as an admission by any party hereto of any liability of any kind to any other party hereto. Notwithstanding anything to the Supporting Holder will contrary contained herein, Sponsor and SPAC (and each of their respective Affiliates) shall be bound by deemed not to be Affiliates of each release to which he, she or it is a party and such releases will be cumulative and not exclusive to one anotherother for purposes of this Section 3.
Appears in 1 contract
Waiver and Release of Claims. Each Supporting Holder covenants and agrees, severally with respect to such Supporting Holder only and not with respect to any other Supporting Holder, as follows:
(a) Effective upon the Closing, in consideration for the undersigned Supporting Holder’s portion Borrower and each Guarantor signing below (each of the Merger Considerationforegoing being a “Releasing Party”) hereby releases, such Supporting Holder, on behalf of himself, herself or itselfacquits, and hisdischarges Bank and Bank’s employees, her or its Affiliates and equityholders (if the Supporting Holder is an entity) and each of their respective agents, representative, consultants, attorneys, fiduciaries, servants, officers, directors, partners, predecessors, successors and assigns, hereby fullysubsidiary corporations, unconditionally and irrevocably waives, releases, acquits and forever discharges the SPAC Parties and the Companyparent corporations, and each Subsidiary and Affiliate related corporate divisions (all of the foregoing and their respective Representatives and equityholders, and each of their respective successors and assigns (collectively, hereinafter called the “Released Parties”) ), from any claimsall actions and causes of action, judgments, executions, suits, debts, claims, demands, debts, accounts, covenants, contracts, arrangements, promisesliabilities, obligations, damages, judgments, debts, dues, or liabilities and expenses of any kindand every character, actions, and causes of action of every kind and nature, or otherwise (including claims for damages, costs, expenses, and attorneys’, brokers’ and accountants’ fees and expenses), in law or equity (“Action”), which the Supporting Holder has or may have against any Released Party, whether known or unknown, suspected direct and/or indirect, at law or unsuspectedin equity, accrued of whatsoever kind or fixednature, absolute whether heretofore or contingenthereafter arising, matured for or unmaturedbecause of any matter or things done, determined omitted or determinablesuffered to be done by any of the Released Parties prior to and including the date of execution hereof, and that now exist in any way directly or may hereafter exist (collectivelyindirectly arising out of or in any way connect to this Agreement and the Existing Loan Documents, “Claims”) solely to the extent such Claims arise or relate including, but not limited to, claims relating to any inaccuracy or miscalculation in the portion settlement negotiation (all of the Merger Consideration received by such Supporting Holder foregoing hereinafter called the “Released Matters”). Each Releasing Party acknowledges that the agreements in this section are intended to be in full satisfaction of all or any alleged injuries or damages arising in connection with the Closing (collectively, the “Released Claims”). The Supporting Holder shall refrain from directly or indirectly asserting any claim or commencing (or causing to be commenced) any Action of any kind before any Governmental Authority against any Released Party based upon any Released Claim. The release contained herein is effective without regard to the legal nature of the claims raised and without regard to whether any such claims are based upon tort, equity, law, implied or express contract, discrimination of any sort or any other grounds. To the extent permitted by applicable Law, the undersigned Supporting Holder expressly waives the benefit of any Law, which, if applied to the release set forth herein, would otherwise exclude from its binding effect any claim not known on the date hereof to existMatters.
(b) The Supporting Holder represents and Each Releasing Party acknowledges that: (i) he, she or that it has read this release and understands its terms and has been given an opportunity to ask questions of the Company’s Representatives and (ii) in signing this release he, she or it does not rely, and has not relied, on any representation or statement not in executing the release set forth in this release made section, upon any representations, warranties, or conditions by Bank or any Representative of the Company or anyone else with regard to the subject matter, basis or effect of this release or otherwise. The Supporting Holder further represents and acknowledges that he, she or it may hereafter discover facts in addition to or different from those which the he, she or it now knows or believes to be true with respect to the subject matter herein, and that he, she or it may hereafter come to have a different understanding of the Law that may apply to potential claims which the undersigned is releasing hereunder, but the undersigned affirms that, other entity except as is otherwise are specifically provided above, it is his, her or its intention to fully, finally and forever settle and release any and all Released Claims. In furtherance of set forth in this intention, the Supporting Holder acknowledges that the releases contained herein shall be and remain in effect as full and complete general releases notwithstanding the discovery or existence of any such additional facts or different understandings of LawAgreement.
(c) The Supporting Holder acknowledges Nothing contained herein shall be construed at any time as an admission by Bank of any liability to Borrower or any other entity.
(d) Each Releasing Party warrants to Bank that heit has not purported to transfer, she assign, or it may executeotherwise convey any right, title or interest of such Releasing Party in any Released Matter to any other entity, and may have executed, additional releases in connection with that the Merger, foregoing constitutes a full and for the avoidance complete release of doubt, the Supporting Holder will be bound by each release to which he, she or it is a party and such releases will be cumulative and not exclusive to one anotherall Released Matters.
Appears in 1 contract
Samples: Loan Modification and Forbearance Agreement (Comdial Corp)
Waiver and Release of Claims. Each Supporting Holder covenants and agrees, severally with respect to such Supporting Holder only and not with respect to any other Supporting Holder, as follows:
(a) Effective upon the Closing, in consideration for the undersigned Supporting Holder’s portion of the Merger Consideration, such Supporting Holder, on behalf of himself, herself or itselfparty hereto, and hisanyone claiming by, her through or under such party (each, a “Releasing Party”) hereby waives its Affiliates right to recover from and equityholders (if the Supporting Holder is an entity) and each of their respective successors and assigns, hereby fully, unconditionally finally, absolutely, and irrevocably waivesreleases each other party hereto and such other parties’ officers, releasesdirectors, acquits and forever discharges the SPAC Parties and the Companyemployees, representatives, agents, affiliates, and each Subsidiary such parties’ direct and Affiliate of the foregoing and their respective Representatives and equityholdersindirect constituent owners, and each of their respective the foregoing parties’ successors and assigns (collectively, the “Released Parties”) from any and all claims of any and every character that a Releasing Party may now have against any of the Released Parties for any cost, loss, liability, damage, expense, demand, fine, penalty, action or cause of action arising from or related to the Loan, the Loan Documents, or any matters related thereto (collectively, “Released Claims”), excluding any obligation of a Released Party arising under this Agreement; provided, however, (y) in no event shall Borrower or Guarantor be released from, nor shall the foregoing waiver and release provisions apply to, any of the Continuing Obligations, and (z) in the event that any Releasing Party brings any action against a Released Party seeking payment on, or any other relief with respect to, any Released Claim, the foregoing waiver and release of such Releasing Party by such Released Party shall be of no force or effect. The foregoing waiver and release includes claims of which the Releasing Party is presently unaware or which the Releasing Party does not presently suspect to exist which, if known by the Releasing Party, would materially affect the Releasing Party’s release of the Released Parties, and including any and all claims that are direct and/or indirect, contingent or matured, of whatever kind or nature, for or because of any matter or things done, omitted or permitted to be done by any of the Released Parties, at law or in equity. Each Releasing Party understands, acknowledges and agrees that (a) the waiver and release set forth above may be pleaded as a full and complete defense and may be used as a basis for an injunction against any action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the provisions of such release, (b) no fact, event, circumstance, evidence, or transaction which could now be asserted or which may hereafter be discovered shall affect in any manner the final, absolute and unconditional nature of the waiver and release set forth above, (c) it realizes and acknowledges that factual matters now unknown to it may have given or may hereafter give rise to causes of action, claims, suits, demands, debts, accountscontroversies, covenants, contracts, arrangements, promises, obligations, damages, judgments, debts, dues, or liabilities of any kind, actions, and causes of action of every kind and nature, or otherwise (including claims for damages, costs, expenseslosses and expenses which are presently unknown, unanticipated and unsuspected, and attorneys’it further agrees, brokers’ represents and accountants’ fees warrants that this release has been negotiated and expenses), agreed upon in law or equity (“Action”), which the Supporting Holder has or may have against any Released Party, whether known or unknown, suspected or unsuspected, accrued or fixed, absolute or contingent, matured or unmatured, determined or determinable, light of that realization and that now exist or may hereafter exist (collectivelyit nevertheless hereby intends to release, “Claims”) solely to discharge and acquit the extent such Claims arise or relate to any inaccuracy or miscalculation in the portion of the Merger Consideration received by such Supporting Holder in connection with the Closing (collectively, the “Released Claims”). The Supporting Holder shall refrain Parties from directly or indirectly asserting any claim or commencing (or causing to be commenced) any Action of any kind before any Governmental Authority against any Released Party based upon any Released Claim. The release contained herein is effective without regard to the legal nature of the claims raised and without regard to whether any such claims are based upon tort, equity, law, implied or express contract, discrimination of any sort or any other grounds. To the extent permitted by applicable Law, the undersigned Supporting Holder expressly waives the benefit of any Law, which, if applied to the release set forth herein, would otherwise exclude from its binding effect any claim not known on the date hereof to exist.
(b) The Supporting Holder represents and acknowledges that: (i) he, she or it has read this release and understands its terms and has been given an opportunity to ask questions of the Company’s Representatives and (ii) in signing this release he, she or it does not rely, and has not relied, on any representation or statement not set forth in this release made by any Representative of the Company or anyone else with regard to the subject matter, basis or effect of this release or otherwise. The Supporting Holder further represents and acknowledges that he, she or it may hereafter discover facts in addition to or different from those which the he, she or it now knows or believes to be true with respect to the subject matter herein, and that he, she or it may hereafter come to have a different understanding of the Law that may apply to potential claims which the undersigned is releasing hereunder, but the undersigned affirms that, except as is otherwise specifically provided above, it is his, her or its intention to fully, finally and forever settle and release any and all Released Claimssuch unknown causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses which in any way arise out of, are connected with, or relate to, the Loan, (d) it understands and acknowledges the significance and consequences of the foregoing release and waiver and each has been advised by independent legal counsel concerning the same. In furtherance of this intention, each Releasing Party expressly waive any and all rights conferred upon it by the Supporting Holder acknowledges provisions of California Civil Code Section 1542, and expressly consents that the releases contained herein this Release shall be given full force and remain effect according to each and all of its express terms and provisions. Section 1542 provides: Each Releasing Party hereby understands and acknowledges the significance and consequences of such release and specific waiver of Section 1542 and has been advised by independent legal counsel concerning the same. By: By: By: Borrower’s Initials Guarantor’s Initials Lender’s Initials Each Releasing Party hereby represents and warrants that (i) it owns all of the purported claims, rights, demands and causes of action that it is releasing by the foregoing release and that no other person or entity has any interest in effect as full and complete general releases notwithstanding the discovery said claims, rights, demands or existence causes of action by reason of any contract or dealing with such additional facts or different understandings of Law.
(c) The Supporting Holder acknowledges that he, she or it may executeReleasing Party, and may have executed(ii) it has not assigned to any other person or entity all or any part of such claims, additional releases in connection with the Mergerrights, and for the avoidance demands or causes of doubt, the Supporting Holder will be bound by each release to which he, she or it is a party and such releases will be cumulative and not exclusive to one anotheraction.
Appears in 1 contract
Samples: Discounted Payoff Agreement (Zhone Technologies Inc)
Waiver and Release of Claims. Each Supporting Holder Sponsor covenants and agrees, severally with respect to such Supporting Holder only and not with respect to any other Supporting Holder, agrees as follows:
(a) Effective upon as of the Closing, subject to the limitations set forth in consideration for the undersigned Supporting Holder’s portion of the Merger Considerationparagraph (c) below, such Supporting HolderSponsor, on behalf of himselfitself and its successors, herself or itselfassigns, representatives, administrators, executors and agents, and hisany other person or entity claiming by, her through, or its Affiliates under any of the foregoing (each a “Releasing Party” and, collectively, the “Releasing Parties”), does hereby unconditionally and equityholders (if irrevocably release, waive and forever discharge each of the Supporting Holder is an entity) Company, Acquiror, Merger Sub and each of their respective successors past and present directors, officers, employees, agents, predecessors, successors, assigns, hereby fullySubsidiaries, unconditionally and irrevocably waives, releases, acquits and forever discharges the SPAC Parties and the Company, and each Subsidiary and Affiliate of the foregoing and their respective Representatives and equityholders, and each of their respective successors and assigns (collectively, “Released Parties”) from any and all past or present claims, suits, demands, debts, accounts, covenants, contracts, arrangements, promises, obligations, damages, judgments, debts, dues, or causes of action and liabilities of any kind, actions, and causes of action of every kind and nature, or otherwise (including claims for damages, costs, expenses, and attorneys’, brokers’ and accountants’ fees and expenses), in law or equity (“Action”), which the Supporting Holder has or may have against any Released Partynature whatsoever, whether known or unknownnot known, suspected or unsuspectedclaimed, accrued arising directly or fixedindirectly from any act, absolute omission, event or contingent, matured transaction occurring (or unmatured, determined any circumstances existing) at or determinable, and that now exist or may hereafter exist (collectively, “Claims”) solely prior to the extent such Claims arise or relate to any inaccuracy or miscalculation in the portion of the Merger Consideration received by such Supporting Holder in connection with the Closing (each a “Claim” and, collectively, the “Released Claims”). The Supporting Holder shall refrain from directly , including any and all Claims arising out of or indirectly asserting relating to (i) a Releasing Party’s capacity as a current or former stockholder, officer or director, manager, employee or agent of Acquiror or any claim of its predecessors or commencing Affiliates (or causing to be commencedits capacity as a current or former trustee, director, officer, manager, employee or agent of any other entity in which capacity it is or was serving at the request of Acquiror or any of its Subsidiaries) or (ii) any Action Contract with Acquiror or any of any kind before any Governmental Authority against any Released Party based upon any Released Claim. The release contained herein is effective without regard its Subsidiaries entered into or established prior to the legal nature Closing, with the effect that any such Contract, including any provision purporting to survive termination of the claims raised such Contract and without regard to whether any such claims are based upon tortnotice requirement thereunder, equity, law, implied or express contract, discrimination of any sort or any other grounds. To the extent permitted by applicable Law, the undersigned Supporting Holder expressly waives the benefit of any Law, which, if applied is hereby terminated in its entirety with respect to the release set forth herein, would otherwise exclude from its binding effect any claim not known on the date hereof to existSponsor.
(b) The Supporting Holder represents and acknowledges that: (i) he, she or it has read this release and understands its terms and has been given an opportunity to ask questions of the Company’s Representatives and (ii) in signing this release he, she or it does not rely, and has not relied, on any representation or statement not set forth in this release made by any Representative of the Company or anyone else with regard to the subject matter, basis or effect of this release or otherwise. The Supporting Holder further represents and Sponsor acknowledges that he, she or it may hereafter discover facts in addition to or different from those which the he, she or it now knows or believes to be true with respect to the subject matter hereinof this Agreement, and that he, she or it may hereafter come to have a different understanding of the Law law that may apply to potential claims which the undersigned it is releasing hereunder, but the undersigned it affirms that, except as is otherwise specifically provided aboveherein, it is his, her or its intention to fully, finally and forever settle and release any and all Released Claims. In furtherance of this intention, the Supporting Holder Sponsor acknowledges that the releases contained herein shall be and remain in effect as full and complete general releases notwithstanding the discovery or existence of any such additional facts or different understandings of Lawlaw. Sponsor knowingly and voluntarily waives and releases any and all rights and benefits it may now have, or in the future may have, under Section 1542 of the California Civil Code (or any analogous law of any other state), which reads as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” Sponsor understands that Section 1542, or a comparable statute, rule, regulation or order of another jurisdiction, gives Sponsor the right not to release existing Claims of which Sponsor is not aware, unless Sponsor voluntarily chooses to waive this right. Having been so apprised, Sponsor nevertheless hereby voluntarily elects to and does waive the rights described in Section 1542, or such other comparable statute, rule, regulation or order, and elects to assume all risks for Claims that exist, existed or may hereafter exist in its favor, known or unknown, suspected or unsuspected, arising out of or related to claims or other matters purported to be released pursuant to this Section 3(b), in each case, effective as of the Closing. Sponsor acknowledges and agrees that the foregoing waiver is an essential and material term of the release provided pursuant to this Section 3(b) and that, without such waiver, Acquiror and the Company would not have agreed to the terms of this Agreement.
(c) The Supporting Holder acknowledges that heNotwithstanding the foregoing provisions of this Section 3 or anything to the contrary set forth herein, she the Releasing Parties do not release or it may executedischarge, and may have executedeach Releasing Party expressly does not release or discharge: (i) any Claims that arise under or are based upon the terms of (A) this Agreement, additional releases the Merger Agreement, any of the Ancillary Agreements, any Letter of Transmittal or any other document, certificate or Contract executed or delivered in connection with the MergerMerger Agreement; (B) the Insider Letter, (C) the Registration Rights Agreement, dated as of August 26, 2020, by and among Acquiror, Sponsor and the other Holders party thereto, (D) the Expense Advancement Agreement, dated as of August 26, 2020, by and between Acquiror and Sponsor, and the Promissory Note, dated as of August 26, 2020, by Acquiror in favor of Sponsor, and any other promissory notes and/or expense advance agreements entered into by and between Acquiror and Sponsor prior to the Closing without violation of the terms of the Merger Agreement, or (E) any PIPE Subscription Agreements to which a Releasing Party may be a party, as each such agreement or instrument described in this clause (i) may be amended in accordance with its terms; (ii) any rights with respect to the capital stock or warrants of Acquiror owned by such Releasing Party, or (iii) any Claims for indemnification, contribution, set-off, reimbursement or similar rights pursuant to any certificate of incorporation or bylaws of Acquiror or any of its Subsidiaries or any indemnity or similar agreements by Acquiror or any of its Subsidiaries with or for the avoidance benefit of doubta Releasing Party.
(d) Notwithstanding the foregoing provisions of this Section 3, nothing contained in this Agreement shall be construed as an admission by any party hereto of any liability of any kind to any other party hereto. Notwithstanding anything to the Supporting Holder will contrary contained herein, Sponsor and Acquiror (and each of their respective Affiliates) shall be bound by deemed not to be Affiliates of each release to which he, she or it is a party and such releases will be cumulative and not exclusive to one anotherother for purposes of this Section 3.
Appears in 1 contract
Samples: Sponsor Support Agreement (CF Finance Acquisition Corp II)
Waiver and Release of Claims. Each Supporting Holder Shareholder covenants and agrees, severally with respect to such Supporting Holder Shareholder only and not with respect to any other Supporting HolderShareholder, as follows:
(a) Effective Subject to and conditioned upon the Closing, in consideration for the undersigned Supporting Holder’s portion effective as of the Merger ConsiderationClosing (and subject to the limitations set forth in paragraph (c) below), such Supporting Holdereach Shareholder, on behalf of himself, herself or itself, such Shareholder and his, her or its Affiliates and equityholders (if the Supporting Holder is an entity) and each of their his, her or its respective successors and successors, assigns, representatives, administrators, executors and agents, and any other person or entity claiming by, through, or under any of the foregoing (provided, for the avoidance of doubt, that none of the Company or any of its Subsidiaries shall be deemed to release, waive or discharge any of the following Persons), does hereby fully, unconditionally and irrevocably waivesrelease, releases, acquits waive and forever discharges the SPAC Parties and the Company, and discharge each Subsidiary and Affiliate of the foregoing Company and their respective Representatives and equityholdersits Subsidiaries, and each of their respective successors predecessors, successors, assigns, Subsidiaries and assigns (collectivelyAffiliates, “Released Parties”) and each of the respective past and present directors, officers, employees and agents of the foregoing, from any and all past or present claims, suits, demands, debts, accounts, covenants, contracts, arrangements, promises, obligations, damages, judgments, debts, dues, or causes of action and liabilities of any kind, actions, and causes of action of every kind and nature, or otherwise (including claims for damages, costs, expenses, and attorneys’, brokers’ and accountants’ fees and expenses), in law or equity (“Action”), which the Supporting Holder has or may have against any Released Partynature whatsoever, whether known or unknownnot known, suspected or unsuspectedclaimed, accrued arising directly or fixedindirectly from any act, absolute omission, event or contingenttransaction occurring (or any circumstances existing) at or prior to the Closing (each a “Claim” and, matured or unmatured, determined or determinable, and that now exist or may hereafter exist (collectively, the “Claims”) solely arising out of or relating to the extent such Claims arise Shareholder’s capacity as a current or relate former shareholder or holder of options, warrants or other equity securities of the Company. Notwithstanding the foregoing, the phrase “arising out of or relating to any inaccuracy the Shareholder’s capacity as a current or miscalculation former shareholder or holder of options, warrants or other equity securities of the Company” in the portion immediately preceding sentence shall be disregarded in the case of the Merger Consideration received release given by such Supporting Holder in connection with the Closing (collectively, the “Released Claims”). The Supporting Holder shall refrain from directly or indirectly asserting any claim or commencing (or causing Key Individual pursuant to be commenced) any Action of any kind before any Governmental Authority against any Released Party based upon any Released Claim. The release contained herein is effective without regard to the legal nature of the claims raised and without regard to whether any such claims are based upon tort, equity, law, implied or express contract, discrimination of any sort or any other grounds. To the extent permitted by applicable Law, the undersigned Supporting Holder expressly waives the benefit of any Law, which, if applied to the release set forth herein, would otherwise exclude from its binding effect any claim not known on the date hereof to existthis Section 5.
(b) The Supporting Holder represents and acknowledges that: (i) he, she or it has read this release and understands its terms and has been given an opportunity to ask questions of the Company’s Representatives and (ii) in signing this release he, she or it does not rely, and has not relied, on any representation or statement not set forth in this release made by any Representative of the Company or anyone else with regard to the subject matter, basis or effect of this release or otherwise. The Supporting Holder further represents and Each Shareholder acknowledges that he, she or it may hereafter discover facts in addition to or different from those which the he, she or it now knows or believes to be true with respect to the subject matter hereinof this Agreement, and that he, she or it may hereafter come to have a different understanding of the Law law that may apply to potential claims which the undersigned he, she or it is releasing hereunder, but the undersigned he, she or it affirms that, except as is otherwise specifically provided aboveherein, it is his, her or its intention to fully, finally and forever settle and release any and all Released Claims. In furtherance of this intention, each of the Supporting Holder Shareholders acknowledges that the releases contained herein shall be and remain in effect as full and complete general releases notwithstanding the discovery or existence of any such additional facts or different understandings of Law.
(c) The Supporting Holder acknowledges law. Each Shareholder knowingly and voluntarily waives and releases any and all rights and benefits arising out of or relating to such Shareholder’s capacity as a holder of equity securities of the Company that he, she or it may executenow have, or in the future may have, under Section 1542 of the California Civil Code (or any analogous Law of any other jurisdiction), which reads as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” Notwithstanding the foregoing, the phrase “arising out of or relating to such Shareholder’s capacity as a holder of equity securities of the Company” in the immediately preceding sentence shall be disregarded in the case of the release given by the Key Individual pursuant to this Section 5. Each Shareholder understands that Section 1542, or a comparable Law of another jurisdiction, gives such Shareholder the right not to release existing claims of which the Shareholder is not aware, unless the Shareholder voluntarily chooses to waive this right. Having been so apprised, each Shareholder nevertheless hereby voluntarily elects to and does waive the rights described in Section 1542, or such other comparable Law, and elects to assume all risks for claims that exist, existed or may hereafter exist in its favor, known or unknown, suspected or unsuspected, arising out of or related to claims or other matters purported to be released pursuant to this Section 5, in each case, effective at the Closing. Each Shareholder acknowledges and agrees that the foregoing waiver is an essential and material term of the release provided pursuant to this Section 5 and that, without such waiver, SPAC would not have executedagreed to the terms of this Agreement.
(c) Notwithstanding the foregoing provisions of this Section 5 or anything to the contrary set forth herein, additional no Shareholder or any of his, her or its Family Members or Affiliates releases or discharges, and each Shareholder (for himself, herself or itself and on behalf of his, her or its Family Members and Affiliates) expressly does not release or discharge, any Claims: (i) that arise under or are based upon the terms of the BCA, this Agreement or any of the other Ancillary Agreements, any Letter of Transmittal or any other document, certificate or Contract executed or delivered in connection with the MergerBCA, the Arrangement (including the Share Exchanges) or the other Transactions; (ii) for indemnification, contribution, set-off, reimbursement or similar rights pursuant to any certificate of incorporation, indemnification agreement, shareholders agreement or equivalent document of the Company or any of its Subsidiaries with respect to such Shareholder, or any of his, her or its Affiliates or their respective designated members of the board of directors of the Company or any of its Subsidiaries, in each case, solely to the extent contemplated by Section 6.7 of the BCA; (iii) for compensation or benefits payable to such Shareholder in his, her or its capacity as an officer, director, employee, consultant or contractor of the Company or any of its Subsidiaries that are (x) in the Ordinary Course or (y) otherwise on arms’ length terms and approved by the Company Board or any committee thereof; (iv) for obligations pursuant to, or other rights set forth in, any employment or similar agreement (to the extent such agreement is an Ancillary Agreement or disclosed in the Company Disclosure Letter) between such Shareholder, on the one hand, and for the avoidance Company or any Subsidiary of doubtthe Company, on the Supporting Holder will other hand, together with any other agreements, documents, instruments or certificates contemplated by the foregoing, as well as any other employment-related rights that such Shareholder has by Contract or pursuant to applicable Law or (v) that arise under or are based upon any of the Surviving Rights.
(d) Notwithstanding the foregoing provisions of this Section 5, nothing contained in this Agreement shall be bound construed as an admission by each release any party hereto of any liability of any kind to which he, she or it is a any other party and such releases will be cumulative and not exclusive to one anotherhereto.
Appears in 1 contract
Samples: Shareholder Support Agreement (CF Acquisition Corp. VI)
Waiver and Release of Claims. Each Supporting Holder Sponsor covenants and agrees, severally with respect to such Supporting Holder only and not with respect to any other Supporting Holder, agrees as follows:
(a) Effective upon as of the Closing, subject to the limitations set forth in consideration for the undersigned Supporting Holder’s portion of the Merger Considerationparagraph (c) below, such Supporting HolderSponsor, on behalf of himselfitself and its successors, herself or itselfassigns, representatives, administrators, executors and agents, and hisany other person or entity claiming by, her through, or its Affiliates under any of the foregoing (each a “Releasing Party” and, collectively, the “Releasing Parties”), does hereby unconditionally and equityholders (if irrevocably release, waive and forever discharge each of the Supporting Holder is an entity) Company, Acquiror, Merger Sub and each of their respective successors past and present directors, officers, employees, agents, predecessors, successors, assigns, hereby fullySubsidiaries, unconditionally and irrevocably waives, releases, acquits and forever discharges the SPAC Parties and the Company, and each Subsidiary and Affiliate of the foregoing and their respective Representatives and equityholders, and each of their respective successors and assigns (collectively, “Released Parties”) from any and all past or present claims, suits, demands, debts, accounts, covenants, contracts, arrangements, promises, obligations, damages, judgments, debts, dues, or causes of action and liabilities of any kind, actions, and causes of action of every kind and nature, or otherwise (including claims for damages, costs, expenses, and attorneys’, brokers’ and accountants’ fees and expenses), in law or equity (“Action”), which the Supporting Holder has or may have against any Released Partynature whatsoever, whether known or unknownnot known, suspected or unsuspectedclaimed, accrued arising directly or fixedindirectly from any act, absolute omission, event or contingent, matured transaction occurring (or unmatured, determined any circumstances existing) at or determinable, and that now exist or may hereafter exist (collectively, “Claims”) solely prior to the extent such Claims arise or relate to any inaccuracy or miscalculation in the portion of the Merger Consideration received by such Supporting Holder in connection with the Closing (each a “Claim” and, collectively, the “Released Claims”). The Supporting Holder shall refrain from directly , including any and all Claims arising out of or indirectly asserting relating to (i) a Releasing Party’s capacity as a current or former stockholder, officer or director, manager, employee or agent of Acquiror or any claim of its predecessors or commencing Subsidiaries (or causing to be commencedits capacity as a current or former trustee, director, officer, manager, employee or agent of any other entity in which capacity it is or was serving at the request of Acquiror or any of its Subsidiaries) or (ii) any Action Contract with Acquiror or any of any kind before any Governmental Authority against any Released Party based upon any Released Claim. The release contained herein is effective without regard its Subsidiaries entered into or established prior to the legal nature Closing, with the effect that any such Contract, including any provision purporting to survive termination of the claims raised such Contract and without regard to whether any such claims are based upon tortnotice requirement thereunder, equity, law, implied or express contract, discrimination of any sort or any other grounds. To the extent permitted by applicable Law, the undersigned Supporting Holder expressly waives the benefit of any Law, which, if applied is hereby terminated in its entirety with respect to the release set forth herein, would otherwise exclude from its binding effect any claim not known on the date hereof to existSponsor.
(b) The Supporting Holder represents and acknowledges that: (i) he, she or it has read this release and understands its terms and has been given an opportunity to ask questions of the Company’s Representatives and (ii) in signing this release he, she or it does not rely, and has not relied, on any representation or statement not set forth in this release made by any Representative of the Company or anyone else with regard to the subject matter, basis or effect of this release or otherwise. The Supporting Holder further represents and Sponsor acknowledges that he, she or it may hereafter discover facts in addition to or different from those which the he, she or it now knows or believes to be true with respect to the subject matter hereinof this Agreement, and that he, she or it may hereafter come to have a different understanding of the Law law that may apply to potential claims which the undersigned it is releasing hereunder, but the undersigned it affirms that, except as is otherwise specifically provided aboveherein, it is his, her or its intention to fully, finally and forever settle and release any and all Released Claims. In furtherance of this intention, the Supporting Holder Sponsor acknowledges that the releases contained herein shall be and remain in effect as full and complete general releases notwithstanding the discovery or existence of any such additional facts or different understandings of Lawlaw. Sponsor knowingly and voluntarily waives and releases any and all rights and benefits it may now have, or in the future may have, under Section 1542 of the California Civil Code (or any analogous law of any other state), which reads as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” Sponsor understands that Section 1542, or a comparable statute, rule, regulation or order of another jurisdiction, gives Sponsor the right not to release existing Claims of which Sponsor is not aware, unless Sponsor voluntarily chooses to waive this right. Having been so apprised, Sponsor nevertheless hereby voluntarily elects to and does waive the rights described in Section 1542, or such other comparable statute, rule, regulation or order, and elects to assume all risks for Claims that exist, existed or may hereafter exist in its favor, known or unknown, suspected or unsuspected, arising out of or related to claims or other matters purported to be released pursuant to this Section 3(b), in each case, effective as of the Closing. Sponsor acknowledges and agrees that the foregoing waiver is an essential and material term of the release provided pursuant to this Section 3(b) and that, without such waiver, Acquiror and the Company would not have agreed to the terms of this Agreement.
(c) The Supporting Holder acknowledges that heNotwithstanding the foregoing provisions of this Section 3 or anything to the contrary set forth herein, she the Releasing Parties do not release or it may executedischarge, and may have executedeach Releasing Party expressly does not release or discharge: (i) any Claims that arise under or are based upon the terms of (A) this Agreement, additional releases the Merger Agreement (including with respect to any Acquiror Transaction Expenses), any of the Ancillary Agreements, any Letter of Transmittal or any other document, certificate or Contract executed or delivered in connection with the MergerMerger Agreement; (B) the Insider Letter, (C) the Registration Rights Agreement, dated as of November 12, 2020, by and among Acquiror, Sponsor and the other Holders party thereto, (D) the Expense Advancement Agreement, dated as of November 12, 2020, by and between Acquiror and Sponsor, the promissory note, dated as of November 12, 2020 by Acquiror in favor of the Sponsor, and any other promissory notes and/or expense advance agreements entered into by and between Acquiror and Sponsor prior to the Closing without violation of the terms of the Merger Agreement, or (E) any PIPE Subscription Agreements to which a Releasing Party may be a party, as each such agreement or instrument described in this clause (i) may be amended in accordance with its terms; (ii) any rights with respect to the capital stock or warrants of Acquiror owned by such Releasing Party, or (iii) any Claims for indemnification, contribution, set-off, reimbursement or similar rights pursuant to any certificate of incorporation or bylaws of Acquiror or any of its Subsidiaries or any indemnity or similar agreements by Acquiror or any of its Subsidiaries with or for the avoidance benefit of doubta Releasing Party.
(d) Notwithstanding the foregoing provisions of this Section 3, nothing contained in this Agreement shall be construed as an admission by any party hereto of any liability of any kind to any other party hereto. Notwithstanding anything to the Supporting Holder will contrary contained herein, Sponsor and Acquiror (and each of their respective Affiliates) shall be bound by deemed not to be Affiliates of each release to which he, she or it is a party and such releases will be cumulative and not exclusive to one anotherother for purposes of this Section 3.
Appears in 1 contract
Samples: Sponsor Support Agreement (CF Finance Acquisition Corp. III)
