Authorization, Etc. Each of the Shareholders severally represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as follows: (a) Each of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder; (b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws); (c) Such Shareholder has all necessary legal capacity, right, power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and this Agreement constitutes a valid and binding obligation of such Shareholder enforceable in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity; (d) The execution and delivery of this Agreement by each such Shareholder and the consummation of the transactions contemplated hereby will not (A) violate or conflict with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound. (e) Each such Shareholder has not taken (and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code. (f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Date.
Appears in 2 contracts
Sources: Merger Agreement (Marchex Inc), Merger Agreement (Marchex Inc)
Authorization, Etc. Each of the Shareholders severally (a) Buyer hereby represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as followsSeller that:
(ai) Each of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder Buyer has all necessary legal capacity, right, power and full corporate authority to execute and deliver this Option Agreement and and, subject to Section 11(i), to consummate the transactions contemplated hereby;
(ii) such execution, delivery and consummation have been authorized by the Board of Directors, and no other corporate actions are necessary therefor;
(iii) this Option Agreement constitutes has been duly and validly executed and delivered and represents a valid and legally binding obligation of such Shareholder Buyer, enforceable against Buyer in accordance with its terms; and
(iv) Buyer has taken all necessary corporate action to authorize and reserve and, except subject to Section 11(i), permit it to issue and, at all times from the extent that enforceability may date hereof through the date of the exercise in full or the expiration or termination of the Option, shall have reserved for issuance upon exercise of the Option, 1,290,530 shares of Buyer Common Stock, all of which, upon issuance pursuant hereto, shall be limited by applicable bankruptcyduly authorized, reorganizationvalidly issued, insolvencyfully paid and nonassessable, moratorium or and shall be delivered free and clear of all claims, liens, encumbrances, restrictions (other laws affecting than federal and state securities restrictions) and security interests and not subject to any preemptive rights.
(b) Seller hereby represents and warrants to Buyer that:
(i) Seller has full corporate authority to execute and deliver this Option Agreement and, subject to Section 11(i), to consummate the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equitytransactions contemplated hereby;
(dii) The execution such execution, delivery and delivery consummation have been authorized by all requisite corporate action by Seller, and no other corporate proceedings are necessary therefor;
(iii) this Option Agreement has been duly and validly executed and delivered and represents a valid and legally binding obligation of this Agreement Seller, enforceable against Seller in accordance with its terms; and
(iv) any Buyer Common Stock or other securities acquired by each such Shareholder and the consummation Seller upon exercise of the transactions contemplated hereby Option will not (A) violate or conflict be taken with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant view to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound.
(e) Each such Shareholder has not taken (public distribution thereof and will not take) any action be transferred or failed to take any action that would cause otherwise disposed of except in compliance with the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the CodeSecurities Act.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Date.
Appears in 2 contracts
Sources: Option Agreement (America First Financial Fund 1987-a Limited Partnership), Option Agreement (Bay View Capital Corp)
Authorization, Etc. Each The Company has all necessary corporate power and authority and has taken all necessary corporate action required for the due authorization, execution, delivery and performance by the Company of this Agreement and the Investor Rights Agreement and any other agreements or instruments executed by the Company in connection herewith or therewith (collectively, the “Related Agreements”), and the consummation by the Company of the Shareholders severally represents transactions contemplated hereby and warrants thereby, the filing of the Certificate of Designation with the Secretary of State of the State of Delaware and for the due authorization, issuance, sale and delivery of the Purchased Shares and the Warrants and the reservation, issuance and delivery of the Conversion Shares and the Warrant Shares. The authorization, execution, delivery and performance by the Company of this Agreement and the Related Agreements to which it is or will be a party, and the Parentconsummation by the Company of the transactions contemplated hereby and thereby, First Acquisition Corp. including the filing of the Certificate of Designation and Second Acquisition Corp. as follows:
the issuance of the Purchased Shares, the Conversion Shares and the Warrant Shares do not and will not: (a) Each violate or result in the breach of any provision of the Shareholders is the sole certificate of incorporation and exclusive record and beneficial owner bylaws of the Common Stock set forth opposite his Company; or her name (b) with such exceptions that, individually or in Schedule 3.4 heretothe aggregate, free and clear are not reasonably likely to have a Material Adverse Effect, whether after the giving of notice or the lapse of time or both: (i) violate any provision of, constitute a breach of, or default under, or result in or permit the cancellation, termination or acceleration of any claimsmaterial judgment, liensorder, pledgeswrit, optionsdecree or contract required to be filed as an exhibit to one of the SEC Documents; (ii) other than in connection with or in compliance with the provisions of the HSR Act in connection with any exercise of the Warrants, rights violate any provision of, constitute a breach of, or default under, any applicable state, federal or local law, rule or regulation; or (iii) result in the creation of first refusal any Lien upon any assets of the Company or any of its Subsidiaries or the suspension, revocation, material impairment, forfeiture or nonrenewal of any franchise, permit, license or other encumbrances right granted by a governmental authority to the Company or restrictions any of any nature whatsoever (its Subsidiaries, other than restrictions on transfer imposed Liens under applicable federal or state securities laws). The issuance of the Purchased Shares does not require any further corporate action and is not subject to any preemptive right under the Company’s certificate of incorporation or any contract to which the Company is a party. This Agreement has been, and there are no agreements, arrangements or understandings each of the Related Agreements to which such Shareholder the Company will, at the Closing be party will be, duly executed and delivered by the Company. Assuming due execution and delivery thereof by each of the other parties thereto, this Agreement and the Related Agreements to which the Company is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to will each be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder has all necessary legal capacity, right, power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and this Agreement constitutes a valid and binding obligation of such Shareholder the Company enforceable against the Company in accordance with its terms, except to the extent that as such enforceability may be limited by applicable laws relating to bankruptcy, insolvency, reorganization, insolvency, moratorium or other laws similar legal requirement relating to or affecting the enforcement of creditors, ’ rights generally and by except as such enforceability is subject to general principles of equity, equity (regardless of whether such enforceability is considered in a proceeding in law equity or in equity;
(d) The execution and delivery of this Agreement by each such Shareholder and the consummation of the transactions contemplated hereby will not (A) violate or conflict with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any at law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound).
(e) Each such Shareholder has not taken (and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Date.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Thestreet Com), Securities Purchase Agreement (TCV Vi L P)
Authorization, Etc. Each of the Shareholders severally (a) Bancshares hereby represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as followsMercantile that:
(ai) Each Bancshares has full corporate authority to ex- ecute and deliver this Option Agreement and, subject to Section 11(i), to consummate the transactions contem- plated hereby;
(ii) such execution, delivery and consummation have been authorized by the Board of Directors of Bancshares, and no other corporate proceedings are necessary there- for;
(iii) this Option Agreement has been duly and val- idly executed and delivered and represents a valid and legally binding obligation of Bancshares, enforceable against Bancshares in accordance with its terms; and
(iv) Bancshares has taken all necessary corporate action to authorize and reserve and, subject to Section 11(i), permit it to issue and, at all times from the date hereof through the date of the Shareholders is exercise in full or the sole and exclusive record and beneficial owner expiration or termination of the Option, shall have reserved for issuance upon exercise of the Option, 3,261,522 shares of Bancshares Common Stock set forth opposite his or her name in Schedule 3.4 Stock, all of which, upon issuance pursuant hereto, shall be duly au- thorized, validly issued, fully paid and nonassessable, and shall be delivered free and clear of any all claims, liens, pledgesencumbrances, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable federal and state securities laws), restrictions) and there are no agreements, arrangements or understandings security inter- ests and not subject to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;any preemptive rights.
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution Mercantile hereby represents and delivery of this Agreement, execute and deliver warrants to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);Bancshares that:
(ci) Such Shareholder Mercantile has all necessary legal capacity, right, power and full corporate authority to execute ex- ecute and deliver this Option Agreement and and, subject to
Section 11(i) to consummate the transactions contemplated hereby;
(ii) such execution, delivery and consummation have been authorized by all requisite corporate action by Mer- cantile, and no other corporate proceedings are necessary therefor;
(iii) this Option Agreement constitutes has been duly and validly executed and delivered and represents a valid and legally binding obligation of such Shareholder Mercantile, enforceable against Mer- cantile in accordance with its terms, except ; and
(iv) any Bancshares Common Stock or other securities acquired by Mercantile upon exercise of the Option will not be taken with a view to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement public distribution there- of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity;
(d) The execution and delivery of this Agreement by each such Shareholder and the consummation of the transactions contemplated hereby will not (A) violate or conflict with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound.
(e) Each such Shareholder has not taken (and will not take) any action be transferred or failed to take any action that would cause otherwise disposed of except in compliance with the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the CodeSecurities Act.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Date.
Appears in 2 contracts
Sources: Stock Option Agreement (Mercantile Bancorporation Inc), Stock Option Agreement (Mark Twain Bancshares Inc/Mo)
Authorization, Etc. Each of the Shareholders severally represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as follows:
(a) Each of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder 3.2.1 Purchaser has all necessary legal capacity, right, full power and authority to execute and deliver enter into this Agreement and the agreements contemplated hereby to which Purchaser is a party and to consummate the transactions contemplated herebyhereby and thereby. The execution, delivery and performance of this Agreement and all other agreements and transactions contemplated hereby have been duly authorized by Purchaser, and no other corporate proceedings on their part are necessary to authorize this Agreement and the agreements contemplated hereby and the transactions contemplated hereby and thereby. This Agreement and all other agreements contemplated hereby to be entered into by Purchaser each constitutes a legal, valid and binding obligation of such Shareholder Purchaser enforceable against Purchaser in accordance with its terms, except to as the extent that enforceability same may be limited by applicable bankruptcy, reorganizationinsolvency, insolvencyrehabilitation, moratorium or similar laws, now or hereafter in effect, of general application relating to or affecting creditors’ rights, including, without limitation, the effect of statutory or other laws affecting regarding fraudulent conveyances and preferential transfers, and for the enforcement of creditors, rights generally and limitations imposed by general principles of equity.
3.2.2 Except as set forth in Schedule 3.2.2 attached hereto, regardless the execution, delivery and performance by Purchaser of whether such enforceability is considered this Agreement, and all other agreements contemplated hereby, and the fulfillment of and compliance with the respective terms hereof and thereof by Purchaser, do not and will not (a) conflict with or result in a proceeding breach of the terms, conditions or provisions of, (b) constitute a default or event of default under (whether with or without due notice, the passage of time or both), (c) result in law a violation of, or in equity;
(d) The execution require any authorization, consent, approval, exemption or other action by, notice to, or filing with any third party or Authority pursuant to, the organizational documents or operating agreement of Purchaser or any applicable Regulation, Order or Contract to which Purchaser or its properties are subject. Purchaser has complied in all material respects with all applicable Regulations and Orders in connection with the execution, delivery and performance of this Agreement by each such Shareholder Agreement, the agreements contemplated hereby and the consummation of the transactions contemplated hereby will not (A) violate or conflict with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be boundand thereby.
(e) Each such Shareholder has not taken (and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Date.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Modern Medical Modalities Corp), Asset Purchase Agreement (Modern Medical Modalities Corp)
Authorization, Etc. 2.5.1 Each of the Shareholders severally represents Seller Company and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as follows:
(a) Each of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder has all necessary legal capacity, right, have full power and authority to execute and deliver enter into this Agreement and the agreements, documents and transactions contemplated hereby to which Seller Companies or Parent are parties and to consummate the transactions contemplated herebyhereby and thereby. The execution, delivery and performance of this Agreement and all other agreements and transactions contemplated hereby have been duly authorized by Parent and the Board of Directors or the Board of Managers, as applicable, of each Seller Company, and no other corporate proceedings on their part are necessary to authorize this Agreement or any of the agreements, documents and transactions contemplated hereby and thereby, except as provided in Section 4.10 hereto. This Agreement and all other agreements contemplated hereby to be entered into by Seller Companies and/or Parent each constitutes a legal, valid and binding obligation of such Shareholder Seller Companies and/or Parent enforceable against each Seller Company and/or Parent in accordance with its terms, except to as the extent that enforceability same may be limited by applicable bankruptcy, reorganizationinsolvency, insolvencyrehabilitation, moratorium or similar laws, now or hereafter in effect, of general application relating to or affecting creditors’ rights, including, without limitation, the effect of statutory or other laws affecting regarding fraudulent conveyances and preferential transfers, and for the enforcement of creditors, rights generally and limitations imposed by general principles of equity.
2.5.2 Except as set forth in Schedule 2.5.2 attached hereto, regardless of whether such enforceability is considered in a proceeding in law or in equity;
(d) The execution the execution, delivery and delivery performance by Seller Companies and Parent of this Agreement by each such Shareholder Agreement, and all other agreements contemplated hereby, and the consummation fulfillment of and compliance with the transactions contemplated hereby respective terms hereof and thereof by Seller Companies and Parent, do not and will not (Aa) violate or conflict with any provision or result in a breach of any partnership agreementthe terms, operating agreement conditions or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability companyprovisions of, (Bb) breach, violate constitute a default or constitute an event of default under (whether with or an event which with without due notice, the lapse passage of time or the giving of notice or both would constitute an event of defaultboth), (c) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lienLien upon the Acquired Assets pursuant to, claim or encumbrance or other right of (d) give any third party of the right to modify, terminate or accelerate any kind whatsoever upon the properties or assets of such Shareholder pursuant to the terms of any such instrument or obligationobligation under, which breach, (e) result in a violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunderof, or (Cf) violate require any authorization, consent, approval, exemption or conflict other action by, notice to, or filing with any lawthird party or Authority pursuant to, statutethe charter, ordinancearticles of organization, code, rule, regulation, judgment, order, writ, injunction, decree bylaws or other instrument operating agreement (or similar constating documents) of any court Seller Company or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound.
(e) Each such Shareholder has not taken (and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp.as the case may be, or any applicable Regulation, Order or Contract to which any Seller Company, Parent or their respective affiliates, subsidiaries, predecessors, successors assets and assigns, properties (including the Acquired Assets) or the Equity Interests are subject. Parent and each of themSeller Company have complied with all applicable Regulations and Orders in connection with the execution, delivery and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach performance of this Agreement by any Parent Releasees or to any matter that arises after and the Closing Dateagreements and transaction contemplated hereby.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Modern Medical Modalities Corp), Asset Purchase Agreement (Modern Medical Modalities Corp)
Authorization, Etc. Each of the Shareholders severally (a) Seller hereby represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as followsBuyer that:
(ai) Each of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder Seller has all necessary legal capacity, right, power and full corporate authority to execute and deliver this Option Agreement and and, subject to Section 11(i), to consummate the transactions contemplated hereby;
(ii) such execution, delivery and consummation have been authorized by the Board of Directors of Seller, and no other corporate proceedings are necessary therefor;
(iii) this Option Agreement constitutes has been duly and validly executed and delivered and represents a valid and legally binding obligation of such Shareholder Seller, enforceable against Seller in accordance with its terms; and
(iv) Seller has taken all necessary corporate action to authorize and reserve and, except subject to Section 11(i), permit it to issue and, at all times from the extent that enforceability may date hereof through the date of the exercise in full or the expiration or termination of the Option, shall have reserved for is- suance upon exercise of the Option, 8,785,429 shares of Seller Common Stock, all of which, upon issuance pursuant hereto, shall be limited by applicable bankruptcyduly authorized, reorganizationvalidly issued, insolvencyfully paid and nonassessable, moratorium or and shall be delivered free and clear of all claims, liens, encumbrances, restrictions (other laws affecting than federal and state securities restrictions) and security interests and not subject to any preemptive rights.
(b) Buyer hereby represents and warrants to Seller that:
(i) Buyer has full corporate authority to execute and deliver this Option Agreement and, subject to Section 11(i), to consummate the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equitytransactions contemplated hereby;
(dii) The execution such execution, delivery and delivery consummation have been authorized by all requisite corporate action by Buyer, and no other corporate proceedings are necessary therefor;
(iii) this Option Agreement has been duly and validly executed and delivered and represents a valid and legally binding obligation of this Agreement Buyer, enforceable against Buyer in accordance with its terms; and
(iv) any Seller Common Stock or other securities ac- quired by each such Shareholder and the consummation Buyer upon exercise of the transactions contemplated hereby Option will not (A) violate or conflict be taken with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant view to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound.
(e) Each such Shareholder has not taken (public distribution thereof and will not take) any action be transferred or failed to take any action that would cause otherwise disposed of except in compliance with the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the CodeSecurities Act.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Date.
Appears in 2 contracts
Sources: Stock Option Agreement (Roosevelt Financial Group Inc), Stock Option Agreement (Mercantile Bancorporation Inc)
Authorization, Etc. Each of the Shareholders severally represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as follows:
(a) Each In the case of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 heretoFMC, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreementi) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder FMC has all necessary legal capacity, right, full corporate power and authority to execute and deliver this Agreement and the Transaction Documents to which it is a party and to carry out and consummate the transactions contemplated herebyhereby and thereby to be carried out and consummated by it and (ii) this Agreement and the Transaction Documents to which FMC is a party have been duly and validly authorized by FMC and no other corporate action or proceeding by FMC is necessary to authorize the execution, delivery and performance of this Agreement and the Transaction Documents by FMC.
(b) In the case of Solutia, subject to the Approval Order (with respect to the matters not covered by the Initial Relief Order) having been entered and still being in effect and not subject to any stay pending appeal at the time of the Closing, (i) Solutia has full corporate power and authority to execute and deliver this Agreement and the Transaction Documents to which it is a party and to carry out and consummate the transactions contemplated hereby and thereby to be carried out and consummated by it and (ii) this Agreement and the Transaction Documents to which Solutia is a party have been duly and validly authorized by Solutia and no other corporate action or proceeding by Solutia is necessary to authorize the execution, delivery and performance of this Agreement and the Transaction Documents by Solutia.
(c) This Agreement has been duly and validly executed by such Owner and, assuming this Agreement constitutes a the legal, valid and binding obligation agreement of ICL, the Buyer, the Seller and the other Owner, and, with respect to Solutia, assuming the entry of the Approval Order as a Final Order, it constitutes a legal, valid and binding agreement of such Shareholder Owner, enforceable against such Owner in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement . As of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity;
(d) The execution and delivery of this Agreement by each such Shareholder and the consummation of the transactions contemplated hereby will not (A) violate or conflict with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound.
(e) Each such Shareholder has not taken (and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code.
(f) Effective upon the Closing, each Transaction Document will be duly and validly executed by such Shareholder voluntarily releases Owner (to the extent such Owner is a party thereto) and, assuming such Transaction Document constitutes the legal, valid and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each binding agreement of the foregoing ICL, Buyer the Seller and/or the other Owner (any and all of which to the extent they are referred to as the “Parent Releasees”a party thereto), from all chargeswill constitute a legal, complaintsvalid and binding agreement of such Owner (to the extent such Owner is a party thereto), claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which enforceable against such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or Owner in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Dateaccordance with its terms.
Appears in 2 contracts
Sources: Asset Purchase Agreement (FMC Corp), Asset Purchase Agreement (Solutia Inc)
Authorization, Etc. Each of the Shareholders severally (a) RCSB hereby represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as followsCOFI that:
(ai) Each of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder RCSB has all necessary legal capacity, right, power and full corporate authority to execute and deliver this Option Agreement and and, subject to Section 11(i), to consummate the transactions contemplated hereby;
(ii) such execution, delivery and consummation have been authorized by its Board of Directors, and no other corporate actions are necessary therefor;
(iii) this Option Agreement constitutes has been duly and validly executed and delivered and represents a valid and legally binding obligation of such Shareholder RCSB, enforceable against RCSB in accordance with its terms; and
(iv) RCSB has taken all necessary corporate action to authorize and reserve and, except subject to Section 11(i), permit it to issue and, at all times from the extent that enforceability may date hereof through the date of the exercise in full or the expiration or termination of the Option, shall have reserved for issuance upon exercise of the Option, 2,880,944 shares of RCSB Common Stock, all of which, upon issuance pursuant hereto, shall be limited by applicable bankruptcyduly authorized, reorganizationvalidly issued, insolvencyfully paid and nonassessable, moratorium or and shall be delivered free and clear of all claims, liens, encumbrances, restrictions (other laws affecting than federal and state securities restrictions) and security interests and not subject to any preemptive rights.
(b) COFI hereby represents and warrants to RCSB that:
(i) COFI has full corporate authority to execute and deliver this Option Agreement and, subject to Section 11(i), to consummate the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equitytransactions contemplated hereby;
(dii) The execution such execution, delivery and delivery consummation have been authorized by all requisite corporate action by COFI, and no other corporate proceedings are necessary therefor;
(iii) this Option Agreement has been duly and validly executed and delivered and represents a valid and legally binding obligation of this Agreement COFI, enforceable against COFI in accordance with its terms; and
(iv) any RCSB Common Stock or other securities acquired by each such Shareholder and the consummation COFI upon exercise of the transactions contemplated hereby Option will not (A) violate or conflict be taken with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant view to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound.
(e) Each such Shareholder has not taken (public distribution thereof and will not take) any action be transferred or failed to take any action that would cause otherwise disposed of except in compliance with the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the CodeSecurities Act.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Date.
Appears in 2 contracts
Sources: Option Agreement (Charter One Financial Inc), Option Agreement (RCSB Financial Inc)
Authorization, Etc. Each of the Shareholders severally (a) Seller hereby represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as followsBuyer that:
(ai) Each of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder Seller has all necessary legal capacity, right, power and full corporate authority to execute and deliver this Option Agreement and and, subject to Section 11(i), to consummate the transactions contemplated hereby;
(ii) such execution, delivery and consummation have been authorized by the Board of Directors of Seller, and no other corporate proceedings are necessary therefor;
(iii) this Option Agreement constitutes has been duly and validly executed and delivered and represents a valid and legally binding obligation of such Shareholder Seller, enforceable against Seller in accordance with its terms; and
(iv) Seller has taken all necessary corporate action to authorize and reserve and, except subject to Section 11(i), permit it to issue and, at all times from the extent that enforceability may date hereof through the date of the exercise in full or the expiration or termination of the Option, shall have reserved for issuance upon exercise of the Option, 424,470 shares of Seller Common Stock, all of which, upon issuance pursuant hereto, shall be limited by applicable bankruptcyduly authorized, reorganizationvalidly issued, insolvencyfully paid and nonassessable, moratorium or and shall be delivered free and clear of all claims, liens, encumbrances, restrictions (other laws affecting than federal and state securities restrictions) and security interests and not subject to any preemptive rights.
(b) Buyer hereby represents and warrants to Seller that:
(i) Buyer has full corporate authority to execute and deliver this Option Agreement and, subject to Section 11(i), to consummate the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equitytransactions contemplated hereby;
(dii) The execution such execution, delivery and delivery consummation have been authorized by all requisite corporate action by Buyer, and no other corporate proceedings are necessary therefor;
(iii) this Option Agreement has been duly and validly executed and delivered and represents a valid and legally binding obligation of this Agreement Buyer, enforceable against Buyer in accordance with its terms; and
(iv) any Seller Common Stock or other securities acquired by each such Shareholder and the consummation Buyer upon exercise of the transactions contemplated hereby Option will not (A) violate or conflict be taken with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant view to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound.
(e) Each such Shareholder has not taken (public distribution thereof and will not take) any action be transferred or failed to take any action that would cause otherwise disposed of except in compliance with the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the CodeSecurities Act and applicable state law.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Date.
Appears in 2 contracts
Sources: Stock Option Agreement (Homecorp Inc), Stock Option Agreement (Mercantile Bancorporation Inc)
Authorization, Etc. Each of the Shareholders severally (a) Selling Stockholder hereby represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as followsBuyer that:
(ai) Each of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder Selling Stockholder has all necessary legal capacity, right, power and full partnership authority to execute and deliver this Option Agreement and and, subject to Section 11(i), to consummate the transactions contemplated hereby;
(ii) such execution, delivery and consummation have been authorized by the General Partner, and no other partnership proceedings are necessary therefor;
(iii) this Option Agreement constitutes has been duly and validly executed and delivered and represents a valid and legally binding obligation of such Shareholder Selling Stockholder, enforceable against Selling Stockholder in accordance with its terms; and (iv) Selling Stockholder has taken all necessary partnership action to authorize and reserve and, except subject to Section 11(i), permit it to issue and, at all times from the extent that enforceability may date hereof through the date of the exercise in full or the expiration or termination of the Option, shall have reserved for issuance upon exercise of the Option, 1,196,107 BUCs of Selling Stockholder, all of which, upon issuance pursuant hereto, shall be limited by applicable bankruptcyduly authorized, reorganizationvalidly issued, insolvencyfully paid and nonassessable, moratorium or and shall be delivered free and clear of all claims, liens, encumbrances, restrictions (other laws affecting than federal and state securities restrictions) and security interests and not subject to any preemptive rights.
(b) Buyer hereby represents and warrants to Selling Stockholder that:
(i) Buyer has full corporate authority to execute and deliver this Option Agreement and, subject to Section 11(i), to consummate the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equitytransactions contemplated hereby;
(dii) The execution such execution, delivery and delivery consummation have been authorized by all requisite corporate action by Buyer, and no other corporate proceedings are necessary therefor;
(iii) this Option Agreement has been duly and validly executed and delivered and represents a valid and legally binding obligation of this Agreement Buyer, enforceable against Buyer in accordance with its terms; and
(iv) any BUC or other securities acquired by each such Shareholder and the consummation Buyer upon exercise of the transactions contemplated hereby Option will not (A) violate or conflict be taken with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant view to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound.
(e) Each such Shareholder has not taken (public distribution thereof and will not take) any action be transferred or failed to take any action that would cause otherwise disposed of except in compliance with the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the CodeSecurities Act.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Date.
Appears in 2 contracts
Sources: Option Agreement (America First Financial Fund 1987-a Limited Partnership), Option Agreement (Bay View Capital Corp)
Authorization, Etc. Each of the Shareholders severally (a) Seller hereby represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as followsBuyer that:
(ai) Each of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder Seller has all necessary legal capacity, right, power and full corporate authority to execute and deliver this Option Agreement and and, subject to Section 11(i), to consummate the transactions contemplated hereby;
(ii) such execution, delivery and consummation have been authorized by the Board of Directors of Seller, and no other corporate proceedings are necessary therefor;
(iii) this Option Agreement constitutes has been duly and validly executed and delivered and represents a valid and legally binding obligation of such Shareholder Seller, enforceable against Seller in accordance with its terms; and
(iv) Seller has taken all necessary corporate action to authorize and reserve and, except subject to Section 11(i), permit it to issue and, at all times from the extent that enforceability may date hereof through the date of the exercise in full or the expiration or termination of the Option, shall have reserved for issuance upon exercise of the Option, 707,189 shares of Seller Common Stock, all of which, upon issuance pursuant hereto, shall be limited by applicable bankruptcyduly authorized, reorganizationvalidly issued, insolvencyfully paid and nonassessable, moratorium or and shall be delivered free and clear of all claims, liens, encumbrances, restrictions (other laws affecting than federal and state securities restrictions) and security interests and not subject to any preemptive rights.
(b) Buyer hereby represents and warrants to Seller that:
(i) Buyer has full corporate authority to execute and deliver this Option Agreement and, subject to Section 11(i), to consummate the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equitytransactions contemplated hereby;
(dii) The execution such execution, delivery and delivery consummation have been authorized by all requisite corporate action by Buyer, and no other corporate proceedings are necessary therefor;
(iii) this Option Agreement has been duly and validly executed and delivered and represents a valid and legally binding obligation of this Agreement Buyer, enforceable against Buyer in accordance with its terms; and
(iv) any Seller Common Stock or other securities acquired by each such Shareholder and the consummation Buyer upon exercise of the transactions contemplated hereby Option will not (A) violate or conflict be taken with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant view to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound.
(e) Each such Shareholder has not taken (public distribution thereof and will not take) any action be transferred or failed to take any action that would cause otherwise disposed of except in compliance with the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the CodeSecurities Act and applicable state law.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Date.
Appears in 1 contract
Sources: Stock Option Agreement (Mercantile Bancorporation Inc)
Authorization, Etc. Each of the Shareholders severally (a) Firstbank hereby represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as followsMercantile that:
(ai) Each of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder Firstbank has all necessary legal capacity, right, power and full corporate authority to execute and deliver this Option Agreement and and, subject to Section 11(i), to consummate the transactions contemplated hereby;
(ii) such execution, delivery and consummation have been authorized by the Board of Directors of Firstbank, and no other corporate proceedings are necessary therefor;
(iii) this Option Agreement constitutes has been duly and validly executed and delivered and represents a valid and legally binding obligation of such Shareholder Firstbank, enforceable against Firstbank in accordance with its terms; and
(iv) Firstbank has taken all necessary corporate action to authorize and reserve and, except subject to Section 11(i), permit it to issue and, at all times from the extent that enforceability may date hereof through the date of the exercise in full or the expiration or termination of the Option, shall have reserved for issuance upon exercise of the Option, 3,134,858 shares of Firstbank Common Stock, all of which, upon issuance pursuant hereto, shall be limited by applicable bankruptcyduly authorized, reorganizationvalidly issued, insolvencyfully paid and nonassessable, moratorium or and shall be delivered free and clear of all claims, liens, encumbrances, restrictions (other laws affecting than federal and state securities restrictions) and security interests and not subject to any preemptive rights.
(b) Mercantile hereby represents and warrants to Firstbank that:
(i) Mercantile has full corporate authority to execute and deliver this Option Agreement and, subject to Section 11(i), to consummate the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equitytransactions contemplated hereby;
(dii) The execution such execution, delivery and delivery consummation have been authorized by all requisite corporate action by Mercantile, and no other corporate proceedings are necessary therefor;
(iii) this Option Agreement has been duly and validly executed and delivered and represents a valid and legally binding obligation of this Agreement Mercantile, enforceable against Mercantile in accordance with its terms; and
(iv) any Firstbank Common Stock or other securities acquired by each such Shareholder and the consummation Mercantile upon exercise of the transactions contemplated hereby Option will not (A) violate or conflict be taken with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant view to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound.
(e) Each such Shareholder has not taken (public distribution thereof and will not take) any action be transferred or failed to take any action that would cause otherwise disposed of except in compliance with the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the CodeSecurities Act.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Date.
Appears in 1 contract
Sources: Stock Option Agreement (Mercantile Bancorporation Inc)
Authorization, Etc. Each of the Shareholders severally represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as follows:
(a) Each The Company, and each Subsidiary of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder Company that is a party (other than this Agreement) involving the purchasethereto, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder has all necessary legal capacitycorporate, rightlimited liability company, partnership or other applicable entity power and authority to execute and deliver this Agreement and to the Registration Rights Agreement, the Articles of Amendment, the Put Option Agreements, the Pledge Agreement, the Director Indemnification Agreements and the Darkstone LLC Agreement (collectively, the “Related Agreements”), carryout its obligations hereunder and thereunder and consummate the transactions contemplated herebyhereby and thereby (including duly filing the Articles of Amendment with the Secretary of State of the State of Colorado, duly and this Agreement constitutes a valid validly issuing, selling and binding obligation of such Shareholder enforceable in accordance with its termsdelivering the Purchased Shares and duly and validly reserving, except to issuing and delivering the extent that enforceability may be limited Conversion Shares). The execution, delivery and performance by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity;
(d) The execution and delivery Company of this Agreement and by each such Shareholder the Company and its Subsidiaries of the Related Agreements and the consummation of the transactions contemplated hereby and thereby (including the due filing of the Articles of Amendment with the Secretary of State of the State of Colorado, the due and valid authorization, issuance, sale and delivery of the Purchased Shares and the due and valid reservation, issuance and delivery of the Conversion Shares) have been duly authorized by all necessary corporate, limited liability, partnership or other applicable entity action on the part of the Company and its Subsidiaries, and no further approval or authorization is required therefor on the part of the Company or its Subsidiaries. The authorization, execution, delivery and performance by the Company of this Agreement, and by the Company and its Subsidiaries of the Related Agreements, and the consummation by the Company and such Subsidiaries of the transactions contemplated hereby and thereby, including the filing of the Articles of Amendment and the issuance of the Purchased Shares and the Conversion Shares: (a) do not and will not violate, conflict with, or result in the breach of any term, condition or provision of the Articles of Incorporation or Bylaws or any organizational documents of the Company’s Subsidiaries; and (b) with such exceptions that have not had, and would not be reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, do not and will not (A) violate whether with or conflict with any provision of any partnership agreement, operating agreement without notice or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving both) (i) violate any provision of notice or both would constitute an event of default) or result in a breach or default under, give rise to the termination of, acceleration of the performance required by, or result in any payment obligations under, or result in a right of termination, cancellation, modification acceleration or acceleration under or require any consent or the giving of any notice payment under, any material mortgage, credit or loan agreement, note, bond, indenture, mortgagedeed of trust, security agreementlicense, lease, license, franchise, permit, agreement contract or other instrument or obligation to which such Shareholder the Company or any of its Subsidiaries is a partyparty or is bound, or to which the Company or any of its Subsidiaries or any of the properties or assets of the Company or any of its Subsidiaries may be subject, including as a result of any change of control or similar provision; (ii) violate any provision of any judgment, ruling, order, writ, injunction or decree applicable to the Company or any of its Subsidiaries; (iii) violate any provision of any applicable state, federal or local law, rule or regulation; or (iv) result in the creation of any lien, claim security interest, charge or encumbrance or other right upon any of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant the Company or any of its Subsidiaries or the suspension, revocation, impairment, non-renewal or forfeiture of any franchise, permit or license or other right granted by any Governmental Authority to the terms Company or any of any such instrument or obligation, which breach, violation or event of default would its Subsidiaries. This Agreement has been duly executed and delivered by the Company and the Related Agreements have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or been duly executed and delivered by which Common Stock held by such Shareholder may be bound.
(e) Each such Shareholder has not taken (the Company and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) Subsidiaries of the Code.
(f) Effective upon the Closing, each such Shareholder voluntarily releases Company party thereto. Assuming due execution and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of delivery thereof by each of the foregoing other parties (any and all of which are referred to as other than the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. Company or any other Parent Releaseesof its Subsidiaries) hereto or thereto, whether arising under federal or state law this Agreement and whether as the Related Agreements will each be a Shareholder or employee valid and binding obligation of the Company or a Subsidiary of the Company enforceable against the Company or such Subsidiary in any accordance with its terms, except as such enforceability may be limited by applicable laws relating to bankruptcy, insolvency, reorganization, moratorium or other capacity; provided, however, similar legal requirement relating to or affecting creditors’ rights generally and except as such release shall not apply enforceability is subject to any breach general principles of this Agreement by any Parent Releasees equity (regardless of whether enforceability is considered in a proceeding in equity or to any matter that arises after the Closing Dateat law).
Appears in 1 contract
Authorization, Etc. Each (a) The Parent Company hereby irrevocably authorizes each of the Shareholders severally represents Administrative Agent, the Lenders and warrants the other Secured Creditors, in each case, without the consent of the Parent Company, and without any notice to the ParentParent Company or demand upon the Parent Company (except such as shall be required by Applicable Law and cannot be waived), First Acquisition Corp. and Second Acquisition Corp. as followswithout affecting or impairing any of the Obligations or other liabilities of the Parent Company under its Guaranty, from time to time to:
(ai) Each change the manner, place or terms of payment of, and/or change or extend the time of payment of, or renew, increase, accelerate or alter, all or any part of the Shareholders is Guaranteed Obligations (including any increase or decrease in the sole rate of interest thereon), any Collateral or other security therefor, or any liability incurred directly or indirectly in respect thereof, and exclusive record and beneficial owner the Guaranty of the Common Stock set forth opposite his Parent Company herein made shall apply to the Guaranteed Obligations as so changed, extended, renewed or her name altered from time to time;
(ii) take and hold any security for the payment of all or any part of the Guaranteed Obligations, and/or sell, exchange, release, surrender, realize upon or otherwise deal with in Schedule 3.4 heretoany manner and in any order any Property by whomsoever at any time pledged or mortgaged to secure, free and clear or howsoever securing, all or any part of the Guaranteed Obligations or any other liabilities (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof;
(iii) exercise or refrain from exercising any rights or remedies against the Borrower, any other guarantor, any other Credit Party or any other Person;
(iv) settle or compromise all or any part of the Guaranteed Obligations, any Collateral or other security therefor or any liability (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, or subordinate the payment of all or any part thereof to the payment of any claimsliability of the Borrower or of any other Credit Party to any of its creditors;
(v) apply any sums by whomsoever paid or howsoever realized to any liability or liabilities of the Borrower or of any other Credit Party to the Secured Creditors regardless of what Guaranteed Obligations of the Borrower or of any other Credit Party shall then remain unpaid;
(vi) release or substitute any one or more endorsers, liensguarantors, pledgesthe Borrower, optionsany other Credit Parties or any other obligors;
(vii) consent to or waive any breach of any act, rights omission or default under this Agreement, any of first refusal the other Loan Documents or any of the Instruments referred to herein or therein, or otherwise amend, modify, supplement, terminate or cancel any provision of this Agreement, any of the other Loan Documents or any of such other Instruments; and/or
(viii) take any other action which would, under otherwise Applicable Law, give rise to a legal or equitable discharge of the Parent Company from any of its Obligations or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed liabilities under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;its Guaranty.
(b) Each The Obligations of the Shareholders Parent Company under its Guaranty are absolute, unconditional and irrevocable in every respect and shall remain in full force and effect without regard to, and shall not be released, suspended, discharged, terminated or otherwise impaired or affected by, any of the circumstances or occurrences described or referred to in PARAGRAPH (Aa) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy SECTION 7.5 or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor CLAUSES (i) through (x) of SECTION 17(a) of the Mergers Pledge Agreement. The Parent Company hereby absolutely, unconditionally and irrevocably waives all suretyship and other similar defenses to the adoption of this Agreement payment and performance by the Company, Parent Company of any of its Obligations and (B) at the Effective Time, deliver or cause to be delivered other liabilities to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate Administrative Agent or to be duly endorsed for transfer and free and clear any of any claims, liens, pledges, options, rights of first refusal or the other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed Secured Creditors under applicable securities laws);its Guaranty.
(c) Such Shareholder has all necessary legal capacity, right, power The agreements and authority Obligations of the Parent Company under its Guaranty are separate and independent from and in addition to the agreements and Obligations of each of the other Guarantors and shall be enforceable by the Administrative Agent against the Parent Company notwithstanding (i) the failure of any other Guarantor to execute and deliver this Agreement and to consummate a counterpart of the transactions contemplated herebySubsidiary Guaranty, and this Agreement constitutes a valid and binding obligation (ii) the invalidity, unenforceability or inadmissibility in evidence of such Shareholder enforceable in accordance with its termsthe Subsidiary Guaranty against any one or more of the Subsidiary Guarantors, except (iii) the release by the Administrative Agent of all or any of the Subsidiary Guarantors from all or any part of their Obligations under the Subsidiary Guaranty, or the release by the Administrative Agent of all or any part of the Collateral granted by all or any of the other Guarantors to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity;
(d) The execution and delivery of this Agreement by each such Shareholder and the consummation Administrative Agent under any of the transactions contemplated hereby will not (A) violate or conflict with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunderLoan Documents, or (Civ) violate any waiver, termination or conflict with cancellation by the Administrative Agent of, or any lawconsent by the Administrative Agent to any departure from, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree any of the agreements or other instrument obligations of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound.
(e) Each such Shareholder has not taken (and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code.
(f) Effective upon Subsidiary Guarantors under the ClosingSubsidiary Guaranty on any occasion or occasions, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and or any failure by the current and former officers, directors, stockholders, employees, and agents of each Administrative Agent to enforce any of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts agreements or Obligations of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company Subsidiary Guarantors under the Subsidiary Guaranty on any occasion or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Dateoccasions.
Appears in 1 contract
Authorization, Etc. Each CP&I has full power and authority and the Seller has full capacity to enter into this Agreement, the Employment Agreement, the Escrow Agreement, the Management Agreement, the Trust Agreement, the Option Agreement and the agreements and documents contemplated hereby to which CP&I or the Seller is a party, and perform their respective obligations hereunder and thereunder. The execution, delivery and performance of this Agreement, the Shareholders severally represents Employment Agreement, the Escrow Agreement, the Management Agreement, the Trust Agreement, the Option Agreement and warrants all other agreements and transactions contemplated hereby have been duly authorized by the Board of Directors of CP&I and no other corporate proceedings on its part are necessary to authorize this Agreement and the Parentother agreements and transactions contemplated hereby. The Seller is entering into this Agreement, First the Employment Agreement, the Escrow Agreement, the Trust Agreement, the Acquisition Corp. Agreement and Second Acquisition Corp. as follows:
(a) Each of the Shareholders is Option Agreement on the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 heretoSeller's own volition, free and clear of from any claims, liens, pledges, options, rights of first refusal undue influence or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s coercion. Upon execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers Employment Agreement, the Escrow Agreement, the Management Agreement, the Trust Agreement, the Option Agreement and the adoption of this Acquisition Agreement by the Companyparties hereto this Agreement, and (B) at the Effective TimeEmployment Agreement, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such ShareholderEscrow Agreement, each such certificate to be duly endorsed for transfer and free and clear of any claimsthe Management Agreement, liensthe Trust Agreement, pledgesthe Option Agreement, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder has all necessary legal capacity, right, power and authority to execute and deliver this the Acquisition Agreement and to consummate all other agreements contemplated hereby shall constitute the transactions contemplated herebylegal, and this Agreement constitutes a valid and binding obligation of each of CP&I and the Seller party hereto, enforceable against each such Shareholder enforceable party in accordance with its their respective terms, except to the extent that enforceability the enforcement thereof may be limited by applicable (i) bankruptcy, reorganization, insolvency, moratorium or other and similar laws affecting the enforcement of creditors, ' rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity;
(dii) The execution and delivery of this Agreement by each such Shareholder and the consummation of the transactions contemplated hereby will not (A) violate or conflict with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be boundequitable principles.
(e) Each such Shareholder has not taken (and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Date.
Appears in 1 contract
Authorization, Etc. Each of the Shareholders severally represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as follows:
(a) Each of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal Such Purchaser has all corporate or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder has all necessary legal capacity, right, entity power and authority to execute and deliver this Agreement Agreement, carryout its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance by such Purchaser of this Agreement, and the consummation of the transactions contemplated hereby, have been duly authorized by all necessary corporate or other entity action on the part of such Purchaser, and no further approval or authorization is required on the part of such Purchaser. The authorization, execution, delivery and performance by such Purchaser of this Agreement constitutes and the consummation by such Purchaser of the transactions contemplated hereby do not: (a) violate, conflict with, or result in the breach of any term, condition or provision of the certificate of incorporation and bylaws (or similar organizational document) of such Purchaser; and (b) with such exceptions that have not had, and would not reasonably expected to have, individually or in the aggregate, a material adverse effect on its ability to perform its obligations under this Agreement do not (whether with or without notice or lapse of time or both) (i) violate any provision of any judgment, ruling, order, writ, injunction or decree applicable to such Purchaser; or (ii) violate any provision of any state, federal or local law, rule or regulation applicable to such Purchaser. This Agreement has been duly executed and delivered by such Purchaser. Assuming due execution and delivery thereof by the other parties hereto, this Agreement is a valid and binding obligation of such Shareholder Purchaser enforceable against such Purchaser in accordance with its terms, except to the extent that as such enforceability may be limited by applicable laws relating to bankruptcy, insolvency, reorganization, insolvency, moratorium or other laws similar legal requirement relating to or affecting the enforcement of creditors, ’ rights generally and by except as such enforceability is subject to general principles of equity, equity (regardless of whether such enforceability is considered in a proceeding in law equity or in equity;
(d) The execution and delivery of this Agreement by each such Shareholder and the consummation of the transactions contemplated hereby will not (A) violate or conflict with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any at law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound).
(e) Each such Shareholder has not taken (and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Date.
Appears in 1 contract
Authorization, Etc. Each of the Shareholders severally represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as follows:
(a) Each of the Shareholders is the sole OnMoney and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder Merger Sub has all necessary legal capacity, right, full corporate power and authority to execute execute, deliver and deliver perform this Agreement and each of the other Transaction Documents and to consummate the transactions contemplated hereby, hereby and this Agreement constitutes thereby except where the failure to have such power and authority would not have a valid Material Adverse Effect on either of OnMoney or Merger Sub. The Board of Directors of each of OnMoney and binding obligation of such Shareholder enforceable in accordance with its terms, except Merger Sub has taken all action required to authorize the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity;
(d) The execution and delivery of this Agreement by each such Shareholder and the consummation other Transaction Documents, the performance of OnMoney or Merger Sub's obligations hereunder and thereunder and the transactions contemplated hereby will not (A) violate and thereby. No other corporate proceedings on the part of Merger Sub or conflict with any provision OnMoney are necessary to authorize the execution, delivery and performance by Merger Sub or OnMoney of any partnership agreement, operating this Agreement or the other Transaction Documents. This Agreement is a valid and binding agreement or other constitutional documents of each such Shareholder of OnMoney and Merger Sub, enforceable against it in accordance with its terms except (a) as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to creditors' rights generally and (b) that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event the remedy of default (or an event which with the lapse specific performance and injunctive and other forms of time or the giving of notice or both would constitute an event of default) under, give rise equitable relief may be subject to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant equitable defenses and to the terms discretion of the court before which any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder proceeding therefor may be boundbrought.
(eb) Each such Shareholder has not taken Upon approval by the Board of Directors of Ameritrade, (i) Ameritrade will have full corporate power and will not take) any action or failed authority to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code.
(f) Effective upon the Closingexecute, each such Shareholder voluntarily releases deliver and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, perform this Agreement and each of them, the other Transaction Documents and to consummate the current transactions contemplated hereby and former officers, directors, stockholders, employees, and agents of each of thereby except where the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed failure to have had against such power and authority would not have a Material Adverse Effect on Ameritrade, (ii) Ameritrade will have taken all action required to authorize the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law execution and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach delivery of this Agreement and the other Transaction Documents, the performance of Ameritrade's obligations hereunder and thereunder and the transactions contemplated hereby and thereby, and (iii) no other corporate proceedings on the part of Ameritrade will be necessary to authorize the execution, delivery and performance by Ameritrade of this Agreement or the other Transaction Documents. Upon approval by the Board of Directors of Ameritrade, this Agreement will be a valid and binding agreement of Ameritrade, enforceable against it in accordance with its terms except (x) as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to creditors' rights generally and (y) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any Parent Releasees or to any matter that arises after the Closing Dateproceedings therefor may be brought.
Appears in 1 contract
Authorization, Etc. Each of the Shareholders severally (a) The Company hereby represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as follows:
Parent that: (ai) Each of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder Company has all necessary legal capacity, right, power and full corporate authority to execute and deliver this Option Agreement and and, subject to Section 11(i), to consummate the transactions contemplated hereby; (ii) such execution, delivery and consummation have been authorized by the Board of Directors of the Company, and no other corporate proceedings are necessary therefor; (iii) this Option Agreement constitutes a valid has been duly and binding obligation validly executed and delivered; and (iv) the Company has taken all necessary corporate action to authorize and reserve and, subject to Section 11(i), permit it to issue and, at all times from the date hereof through the date of such Shareholder enforceable the exercise in accordance with its termsfull or the expiration or termination of the Option, except shall have reserved for issuance upon exercise of the Option, that number of shares of Company Common Stock equal to the extent that enforceability may maximum number of shares of Company Common Stock at any time and from time to time issuable hereunder, all of which, upon issuance pursuant hereto, shall be limited by applicable bankruptcyduly authorized, reorganizationvalidly issued, insolvencyfully paid and nonassessable, moratorium or and shall be delivered free and clear of all claims, liens, encumbrances, restrictions (other laws affecting than federal and state securities restrictions and other than as set forth in Section C of Article Fourth of the enforcement Company's Certificate of creditors, rights generally Incorporation) and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity;security interests and not subject to any preemptive rights.
(db) The execution Parent hereby represents and delivery of warrants to the Company that: (i) the Parent has full corporate authority to execute and deliver this Option Agreement by each such Shareholder and the consummation of and, subject to Section 11(i), to consummate the transactions contemplated hereby hereby; (ii) such execution, delivery and consummation have been authorized by all requisite corporate action by the Parent and no other corporate proceedings are necessary therefor; (iii) this Option Agreement has been duly and validly executed and delivered; and (iv) any Company Common Stock or other securities acquired by the Parent upon exercise of the Option will not (A) violate or conflict be taken with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant view to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound.
(e) Each such Shareholder has not taken (public distribution thereof and will not take) any action be transferred or failed to take any action that would cause otherwise disposed of except in compliance with the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the CodeSecurities Act. 6.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Date.
Appears in 1 contract
Sources: Stock Option Agreement (First Palm Beach Bancorp Inc)
Authorization, Etc. Each of the Shareholders severally represents The Practice has full corporate power and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as follows:
(a) Each of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws)authority, and there are no agreementsthe Sellers have full power and authority, arrangements or understandings to which such Shareholder is a party (other than enter into this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers Agreement and the adoption other agreements and documents contemplated hereby (including, without limitation, the Termination and Release Agreements, the Merger Agreement and the Employment Agreements) and to perform their respective obligations hereunder and thereunder. The execution, delivery and performance of this Agreement and all other agreements and transactions contemplated hereby have been duly authorized by the Companyboard of directors and stockholders of the Practice and no other corporate proceedings on the part of the Practice are necessary to authorize, adopt and approve this Agreement or any other document or agreement contemplated hereby, or the transactions contemplated hereby and thereby. No other actions or proceeding on the part of the Sellers are necessary to authorize, adopt and approve this Agreement or any other document or agreement contemplated hereby, or the transactions contemplated hereby and thereby. The Sellers are authorized to sell the Shares in accordance with this Agreement. The Sellers are entering into this Agreement (Band any other agreement contemplated hereby) at the Effective Timeon their own volition, deliver free from any undue influence or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholdercoercion. The execution, each such certificate to be duly endorsed for transfer delivery and free and clear performance of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder has all necessary legal capacity, right, power and authority to execute and deliver this Agreement and all other agreements and transactions contemplated hereby have been duly authorized by the trustees of the S▇▇▇▇▇▇▇ Trust and no other proceedings on the part of the Stobach Trust are necessary to consummate authorize, adopt and approve this Agreement or any other document or agreement contemplated hereby, or the transactions contemplated hereby, hereby and this Agreement constitutes a valid and binding obligation of such Shareholder enforceable in accordance with its terms, except thereby to be executed or performed by the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity;
(d) The S▇▇▇▇▇▇▇ Trust. Upon execution and delivery of this Agreement (and the other agreements and documents contemplated hereby) by the parties hereto, this Agreement and all other such agreements shall constitute the legal, valid and binding obligations of the Practice and the Sellers (to the extent each is a party to such other agreements), enforceable against each such Shareholder and the consummation of the transactions contemplated hereby will not (A) violate party or conflict parties in accordance with any provision of any partnership agreementtheir respective terms, operating agreement except as such enforceability may be qualified by equitable principles or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant to laws affecting the terms enforceability of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholdercreditor’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be boundrights.
(e) Each such Shareholder has not taken (and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Date.
Appears in 1 contract
Authorization, Etc. Each of the Shareholders severally represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as follows:
(a) Each of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder Purchaser has all necessary legal capacity, right, limited partnership or other entity power and authority to execute and deliver this Agreement and the Related Agreements to which it is a party, carryout its obligations hereunder and thereunder and consummate the transactions contemplated herebyhereby and thereby. The execution, delivery and this Agreement constitutes a valid and binding obligation of performance by such Shareholder enforceable in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity;
(d) The execution and delivery Purchaser of this Agreement by each such Shareholder and the Related Agreements to which it is a party, and the consummation of the transactions contemplated hereby will not (A) violate or conflict with any provision of any partnership agreementand thereby, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or have been duly authorized by all necessary limited partnership or limited liability companyother entity action on the part of such Purchaser, (B) breachand no further approval or authorization is required therefor on the part of such Purchaser. The authorization, violate or constitute an event execution, delivery and performance by such Purchaser of default (or an event which with this Agreement, and the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation Related Agreements to which such Shareholder it is a party, and the consummation by such Purchaser of the transactions contemplated hereby and thereby do not and will not: (a) violate, conflict with, or result in the creation breach of any lienterm, claim condition or encumbrance provision of the certificate of limited partnership and limited partnership agreement (or other right of any third party of any kind whatsoever upon the properties or assets similar organizational document) of such Shareholder pursuant Purchaser; and (b) with such exceptions that have not had, and would not reasonably expected to have, individually or in the terms of any such instrument or obligationaggregate, which breach, violation or event of default would have a material adverse effect on such Shareholder’s its ability to perform such Shareholder’s its obligations hereunder, under this Agreement and the Related Agreements to which it is a party do not and will not (whether with or without notice or lapse of time or both) (Ci) violate or conflict with any lawprovision of any judgment, statute, ordinance, code, rule, regulation, judgmentruling, order, writ, injunction, injunction or decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder Purchaser; or by which Common Stock held by (ii) violate any provision of any state, federal or local law, rule or regulation applicable to such Shareholder may be bound.
(e) Each such Shareholder has not taken (and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of themPurchaser. This Agreement, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred Related Agreements to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder hasPurchaser is a party, claims to havehave been duly executed and delivered by such Purchaser. Assuming due execution and delivery thereof by the other parties hereto or thereto, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement and the Related Agreements will each be a valid and binding obligation of such Purchaser enforceable against such Purchaser in accordance with its terms, except as such enforceability may be limited by any Parent Releasees applicable laws relating to bankruptcy, insolvency, reorganization, moratorium or other similar legal requirement relating to any matter that arises after the Closing Dateor affecting creditors’ rights generally and except as such enforceability is subject to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law).
Appears in 1 contract
Authorization, Etc. Each of the Shareholders severally represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as follows:
(a) Each of VIA has the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder has all necessary legal capacity, right, corporate power and authority to execute and deliver this Agreement the JV Transaction Agreements to which it will be a party, to perform fully its obligations thereunder, and to consummate the transactions contemplated hereby, and this Agreement constitutes a valid and binding obligation of such Shareholder enforceable in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity;
(d) thereby. The execution and delivery by VIA of this Agreement by each such Shareholder and the consummation of the transactions contemplated hereby have been, and on the Closing Date the execution and delivery by VIA of the JV Transaction Agreements to which it will not (A) violate or conflict be a party and the consummation of the transactions contemplated thereby will have been, duly authorized by all requisite corporate action of VIA. VIA has duly executed and delivered this Agreement and on the Closing Date will have duly executed and delivered the other JV Transaction Agreements to which it will be a party. This Agreement is, and on the Closing Date each JV Transaction Agreement to which VIA is a party will be, a legal, valid and binding obligation of VIA enforceable against it in accordance with any provision its respective terms, except as may be limited by bankruptcy, insolvency, reorganization and similar Applicable Laws affecting creditors generally and by the availability of any partnership agreement, operating agreement or other constitutional documents equitable remedies. Neither the execution and delivery of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time this Agreement or the giving JV Transaction Agreements, nor the consummation of notice the transactions contemplated hereby or both would constitute an event thereby, is required to be approved by the stockholders of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result S3. The factual assumptions recited by S3's counsel in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant to the terms of any such instrument or obligation, which breach, violation or event of default would have a opinion attached hereto as Exhibit 13 are true and correct in all material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be boundrespects.
(eb) Each such Shareholder has not taken (VIA is a corporation duly organized, validly existing and will not take) any action or failed to take any action that would cause in good standing under the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) laws of the Codejurisdiction of its incorporation, with full corporate power and authority to carry on its businesses.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Date.
Appears in 1 contract
Sources: Investment Agreement (Sonicblue Inc)
Authorization, Etc. Each of the Shareholders severally represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as follows:
(a) Each of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder The Seller has all necessary legal capacity, right, full power and authority to execute and deliver enter into this Agreement and the agreements contemplated hereby to which the Seller is a party and to consummate the transactions contemplated herebyhereby and thereby and to deliver the Shares and the certificates evidencing such Shares to the Purchaser as provided for herein, free and clear of all Liens, Claims and Orders. The execution, delivery and performance of this Agreement and all other agreements and transactions contemplated hereby have been duly authorized by the Board of Directors and ▇▇. ▇▇▇▇▇ in accordance with all Regulations and no other corporate proceedings on their part are necessary to authorize this Agreement and the agreements contemplated hereby and the transactions contemplated hereby and thereby. This Agreement and all other agreements contemplated hereby to be entered into by the Seller each constitutes a legal, valid and binding obligation of such Shareholder the Seller enforceable against the Seller in accordance with its terms, except terms subject to the extent that enforceability may be limited limitations on enforcement imposed by applicable bankruptcy, reorganization, insolvency, moratorium reorganization or other laws affecting the enforcement of creditors, the rights generally of creditors and by general principles others and to the extent that equitable remedies such as specific performance and injunctions are only available in the discretion of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity;the court from which they are sought.
(db) The execution ▇▇. ▇▇▇▇▇ has full power and authority to enter into this Agreement and the agreements contemplated hereby. This Agreement and all other agreements contemplated hereby to be entered into by ▇▇. ▇▇▇▇▇ each constitute a legal, valid and binding obligation of ▇▇. ▇▇▇▇▇ enforceable against ▇▇. ▇▇▇▇▇ in accordance with its terms subject to limitations on enforcement imposed by bankruptcy, insolvency, reorganization or other laws affecting the enforcement of the rights of creditors and others and to the extent that equitable remedies such as specific performance and injunctions are only available in the discretion of the court from which they are sought.
(c) Except as set forth in Schedule 2.6(c) hereto, the execution, delivery and performance by the Seller and ▇▇. ▇▇▇▇▇ of this Agreement by each such Shareholder Agreement, and all other agreements contemplated hereby, and the consummation fulfillment of and compliance with the transactions contemplated hereby respective terms hereof and thereof by the Seller and ▇▇. ▇▇▇▇▇, do not and will not (Aa) violate or conflict with any provision or result in a breach of any partnership agreementthe terms, operating agreement conditions or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability companyprovisions of, (Bb) breach, violate constitute a default or constitute an event of default under (whether with or an event which with without due notice, the lapse passage of time or the giving of notice or both would constitute an event of defaultboth), (c) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lienLien upon the Corporations’ shares or assets pursuant to, claim or encumbrance or other right of (d) give any third party of the right to modify, terminate or accelerate any kind whatsoever upon the properties or assets of such Shareholder pursuant to the terms of any such instrument or obligationobligation under, which breach, (e) result in a violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunderof, or (Cf) violate require any authorization, consent, approval, exemption or conflict other action by, written notice to, or filing with any lawthird party or Authority pursuant to, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound.
(e) Each such Shareholder has not taken (and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) constating documents of the Code.
(f) Effective upon Corporations or any applicable Regulation, Order or material Contract to which the ClosingCorporations, each such Shareholder voluntarily releases and discharges Parentthe Seller, First Acquisition Corp. and Second Acquisition Corp., ▇▇. ▇▇▇▇▇ or their respective affiliatesproperties or the Shares are subject. The Seller and ▇▇. ▇▇▇▇▇ have complied with all applicable Regulations and Orders in connection with the execution, subsidiariesdelivery and performance of this Agreement, predecessors, successors and assigns, and each of them, the agreements contemplated hereby and the current transactions contemplated hereby and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Datethereby.
Appears in 1 contract
Sources: Stock Purchase Agreement (Securus Technologies, Inc.)
Authorization, Etc. Each The Purchaser has all necessary power and authority and has taken all necessary entity action required for the due authorization, execution, delivery and performance by the Purchaser of this Agreement and the Registration Rights Agreement and the consummation by the Purchaser of the Shareholders severally represents transactions contemplated hereby and warrants to thereby. The authorization, execution, delivery and performance by the ParentPurchaser of this Agreement and the Registration Rights Agreement, First Acquisition Corp. and Second Acquisition Corp. as follows:
the consummation by the Purchaser of the transactions contemplated hereby and thereby do not and will not: (a) Each violate or result in the breach of any provision of the Shareholders is the sole and exclusive record and beneficial owner organizational documents of the Common Stock set forth opposite his Purchaser; or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of with the Shareholders shall exceptions that are not reasonably likely to have, individually or in the aggregate, a material adverse effect on its ability to perform its obligations under this Agreement and the Registration Rights Agreement: (Ai) simultaneously with such Shareholder’s violate any provision of, constitute a breach of, or default under, any judgment, order, writ, or decree applicable to the Purchaser or any material contract to which the Purchaser is a party; or (ii) violate any provision of, constitute a breach of, or default under, any applicable state, federal or local Law. This Agreement has been, and the Registration Rights Agreement will be at the Closing, duly executed and delivered by the Purchaser. Assuming due execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement thereof by the Companyother parties hereto or thereto, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder has all necessary legal capacity, right, power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and this Registration Rights Agreement constitutes will each be a valid and binding obligation of such Shareholder the Purchaser enforceable against the Purchaser in accordance with its terms, except to as the extent that enforceability may be limited by applicable laws relating to bankruptcy, insolvency, reorganization, insolvency, moratorium or other laws similar legal requirement relating to or affecting the enforcement of creditors, ’ rights generally and by except as the enforceability is subject to general principles of equity, equity (regardless of whether such enforceability is considered in a proceeding in law equity or in equity;
(d) The execution and delivery of this Agreement by each such Shareholder and the consummation of the transactions contemplated hereby will not (A) violate or conflict with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any at law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound).
(e) Each such Shareholder has not taken (and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Date.
Appears in 1 contract
Sources: Securities Purchase Agreement (Upland Software, Inc.)
Authorization, Etc. Each of the Shareholders severally represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as follows:
(a) Each of Hatteras Seller has full limited liability company right, authority and power under the Shareholders is the sole applicable Organizational Documents and exclusive record Applicable Laws to enter into each Transaction Document executed and beneficial owner of the Common Stock set forth opposite his delivered, or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned executed and delivered, by such Shareholderit pursuant to, each such certificate to be duly endorsed for transfer and free and clear of any claimsor as contemplated by, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder has all necessary legal capacity, right, power and authority to execute and deliver this Agreement and to consummate carry out the transactions contemplated herebyhereby and thereby. The execution, delivery and performance by each Hatteras Seller of each Transaction Document to which it is a party has been duly authorized by all necessary action of such Hatteras Seller and the shareholders, partners and/or members thereof and no other action on the part of such Hatteras Seller is required in connection therewith. Each Transaction Document executed and delivered by each Hatteras Seller pursuant to, or as contemplated by, this Agreement constitutes constitutes, or when executed and delivered will constitute, a valid and binding obligation of such Shareholder the applicable Hatteras Seller, enforceable against them in accordance with its terms, except to the extent that as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, insolvency, moratorium or other similar laws affecting the enforcement of creditors, ’ rights generally and by general principles equitable principles, including those limiting the availability of equityspecific performance, regardless of whether such enforceability is considered in a proceeding in law or in equity;
(d) injunctive relief and other equitable remedies and those providing for equitable defenses. The execution execution, delivery and delivery of this Agreement performance by each such Shareholder Hatteras Seller (including after giving effect to the Closing) of each Transaction Document to which it is a party and the consummation of the transactions contemplated hereby and thereby:
(i) Do not and will not (A) violate or conflict with any provision of its Organizational Documents;
(ii) Do not and will not violate any partnership agreementApplicable Law applicable to such Hatteras Seller or its assets or employees or require such Hatteras Seller to obtain any approval, operating agreement consent or other constitutional documents waiver of, or make any filing with, any person or entity (governmental or otherwise) that has not been obtained or made, except as specifically identified in Schedule 4.2(a), which approvals, consents and waivers identified in such schedule will, when obtained and as of each such Shareholder that is constituted the Closing, conform in all material respects to, and otherwise satisfy in all material respects, all contractual requirements and all Applicable Law applicable thereto; and
(iii) Except as identified on Schedule 4.2(a), do not and will not result in a general or limited partnership or limited liability companybreach of, (B) breach, violate or constitute an event of a default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, accelerate any obligation under, or give rise to any a right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice undertermination of, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement of its Organizational Documents or other instrument or obligation to which such Shareholder is a partyany material Business Contract, or result in the creation or imposition of any lien, claim or encumbrance or other right Encumbrance on any of any third party of any kind whatsoever upon the properties or respective assets of such Shareholder pursuant to the terms Hatteras Seller or of any Person’s interests in such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound.
(e) Each such Shareholder has not taken (and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacityHatteras Seller; provided, however, such release that the representations in the immediately preceding clauses (ii) and (iii) shall not apply to any breach Investment Advisory Agreements to the extent that the assignment of this Agreement by any Parent Releasees such Investment Advisory Agreements requires the receipt of consents from a party to such agreement or terminates such Investment Advisory Agreements under the Investment Company Act or the Investment Advisers Act (as applicable) and is separately provided for in Section 6.3.
(b) At the Closing, the Hatteras Sellers will hold the entire legal, equitable and beneficial title and interest to any matter that arises after the Closing Dateassets of the Business, and will transfer to Purchaser good title to the Assets, free and clear of all Encumbrances, other than Permitted Encumbrances.
Appears in 1 contract
Authorization, Etc. Each of the Shareholders severally (a) Seller hereby represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as followsBuyer that:
(ai) Each of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder Seller has all necessary legal capacity, right, power and full corporate authority to execute and deliver this Option Agreement and and, subject to Sec-
(i) to consummate the transactions contemplated hereby;
(ii) such execution, delivery and consummation have been authorized by the Board of Directors of Seller, and no other corporate proceedings are necessary therefor;
(iii) this Option Agreement constitutes has been duly and val- idly executed and delivered and represents a valid and legally binding obligation of such Shareholder Seller, enforceable against Seller in accordance with its terms; and
(iv) Seller has taken all necessary corporate ac- tion to authorize and reserve and, except subject to Section 11(i), permit it to issue and, at all times from the extent that enforceability may date hereof through the date of the exercise in full or the expiration or termination of the Option, shall have reserved for issuance upon exercise of the Option, shares of Seller Common Stock, all of which, upon issuance pursuant hereto, shall be limited by applicable bankruptcyduly authorized, reorganizationvalidly issued, insolvencyfully paid and nonassessable, moratorium or and shall be delivered free and clear of all claims, liens, encum- brances, restrictions (other laws affecting than federal and state se- curities restrictions) and security interests and not subject to any preemptive rights.
(b) Buyer hereby represents and warrants to Seller that:
(i) Buyer has full corporate authority to execute and deliver this Option Agreement and, subject to Sec- tion 11(i), to consummate the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equitytransactions contemplated hereby;
(dii) The execution such execution, delivery and delivery consummation have been authorized by all requisite corporate action by Buyer, and no other corporate proceedings are necessary therefor;
(iii) this Option Agreement has been duly and val- idly executed and delivered and represents a valid and legally binding obligation of this Agreement Buyer, enforceable against Buyer in accordance with its terms; and
(iv) any Seller Common Stock or other securities acquired by each such Shareholder and the consummation Buyer upon exercise of the transactions contemplated hereby Option will not (A) violate or conflict be taken with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant view to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound.
(e) Each such Shareholder has not taken (public distribution thereof and will not take) any action be transferred or failed to take any action that would cause otherwise disposed of ex- cept in compliance with the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the CodeSecurities Act.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Date.
Appears in 1 contract
Sources: Stock Option Agreement (Mercantile Bancorporation Inc)
Authorization, Etc. Each of the Shareholders severally (a) Owen hereby represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as followsCardinal that:
(ai) Each of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder Owen has all necessary legal capacity, right, power and full corporate authority to execute and deliver this deliv▇▇ ▇his Option Agreement and to consummate the transactions contemplated hereby;
(ii) such execution, delivery and consummation have been authorized by the Board of Directors of Owen, and no other corporate proceedings are necessary ▇▇▇refor;
(iii) this Option Agreement constitutes has been duly and validly executed and delivered by Owen and represents a valid and legally binding obliga▇▇▇▇ of Owen, enforceable against Owen in accordance with its ▇▇▇▇s; and
(iv) Owen has taken all necessary corporate action to autho▇▇▇▇ and reserve and permit it to issue and, at all times from the date hereof through the date of the exercise in full or the expiration or termination of the Option, shall have reserved for issuance upon exercise of the Option, 3,396,750 shares of Owen Common Stock (subject to adjustment as provided herein), all of which, upon issuance in accordance with the terms of this Option Agreement, shall be duly authorized, validly issued, fully paid and nonassessable, and shall be delivered free and clear of all claims, liens, encumbrances and security interests and not subject to any preemptive rights of any shareholder of Owen.
(b) Cardinal hereby represents and warrants ▇▇ ▇wen that:
(i) Cardinal has full corporate ▇▇▇▇ority to execute and deliver this Option Agreement and to consummate the transactions contemplated hereby;
(ii) such execution, delivery and consummation have been authorized by all requisite corporate action by Cardinal, and no other corporate proceedings are necessary therefor;
(iii) this Option Agreement has been duly and validly executed and delivered by Cardinal and represents a valid and legally binding obligation of such Shareholder Cardinal, enforceable against Cardinal in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity;
(div) The execution any Owen Common Stock acquired by Cardinal upon exercise o▇ ▇▇e Option will be acquired for its own account and delivery of this Agreement by each such Shareholder and the consummation of the transactions contemplated hereby will not (A) violate or conflict be taken with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant view to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound.
(e) Each such Shareholder has not taken (public distribution thereof and will not takebe transferred or otherwise disposed of except in compliance with the Securities Act; and
(v) any action Option Shares acquired by Cardinal upon exercise of the Option will be acquired for its own account and not with a view to the sale or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” distribution thereof within the meaning of Section 368(a) the Securities Act. Cardinal has received copies of, or its officers and directors have had an opportunity to examine, all reports filed by Owen pursuant to Sections 12, 13 or 14 of the Code.
(f) Effective upon Exchange ▇▇▇ in the Closingpreceding twelve months and Cardinal's employees, each such Shareholder voluntarily releases officers and discharges Parent, First Acquisition Corp. directors have had an opportunity to ask questions concerning the Option Shares and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors business and assignsfinancial affairs of Owen, and each to receive answers concerning the same, from ▇▇▇resentatives of them, Owen. The officers and directors of Cardinal have such knowledge and experience in business and financial matters as to be capable of utilizing the current information which is available to them to evaluate the merits and former officers, directors, stockholders, employees, risks of an investment by Cardinal in the Option Shares and agents Cardinal is able to bear the economic risks of each any investment in the Option Shares which Cardinal may acquire upon exercise of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing DateOption.
Appears in 1 contract
Authorization, Etc. Each of The Practice has full corporate power and authority and the Shareholders severally represents Sellers have full power and warrants capacity to enter into this Agreement and the Parentother agreements and documents contemplated hereby (including, First Acquisition Corp. without limitation, the Termination and Second Acquisition Corp. as follows:
(a) Each of Release Agreement and the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Employment Agreement) involving the purchaseand to perform its or his obligations hereunder and thereunder. The execution, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution delivery and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption performance of this Agreement and all other agreements and transactions contemplated hereby have been duly authorized by the Companyboard of directors and stockholders of the Practice and no other corporate proceedings on the part of the Practice are necessary to authorize, adopt and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder has all necessary legal capacity, right, power and authority to execute and deliver approve this Agreement and to consummate or any other document or agreement contemplated hereby, or the transactions contemplated hereby and thereby. No other actions or proceeding on the part of the Sellers are necessary to authorize, adopt and approve this Agreement or any other document or agreement contemplated hereby, or the transactions contemplated hereby and this Agreement constitutes a valid and binding obligation of such Shareholder enforceable thereby. The Sellers are authorized to sell the NY Shares in accordance with its termsthis Agreement. Each Seller is entering into this Agreement (and any other agreement contemplated hereby) on his own volition, except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium free from any undue influence or other laws affecting the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity;
(d) The coercion. Upon execution and delivery of this Agreement (and the other agreements and documents contemplated hereby) by the parties hereto, this Agreement and all other such agreements shall constitute the legal, valid and binding obligations of the Practice and the Sellers (to the extent each is a party to such other agreements), enforceable against each such Shareholder and the consummation of the transactions contemplated hereby will not (A) violate party in accordance with their respective terms, except as such enforceability may be qualified by equitable principles or conflict with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant to laws affecting the terms enforceability of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholdercreditor’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be boundrights.
(e) Each such Shareholder has not taken (and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Date.
Appears in 1 contract
Sources: Merger Agreement (Ameripath Inc)
Authorization, Etc. Each of the Shareholders severally (a) Allegiance hereby represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as followsCardinal that:
(ai) Each of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder Allegiance has all necessary legal capacity, right, power and full corporate authority to execute and deliver this Option Agreement and to consummate the transactions contemplated hereby;
(ii) such execution, delivery and consummation have been authorized by the Board of Directors of Allegiance, and no other corporate proceedings are necessary therefor;
(iii) this Option Agreement constitutes has been duly and validly executed and delivered by Allegiance and represents a valid and legally binding obligation of such Shareholder Allegiance, enforceable against Allegiance in accordance with its terms; and
(iv) Allegiance has taken all necessary corporate action to authorize and reserve and permit it to issue and, except at all times from the date hereof through the date of the exercise in full or the expiration or termination of the Option, shall have reserved for issuance upon exercise of the Option, 22,284,538 shares of Allegiance Common Stock (subject to adjustment as provided herein), all of which, upon issuance in accordance with the terms of this Option Agreement, shall be duly authorized, validly issued, fully paid and nonassessable, and shall be delivered free and clear of all claims, liens, encumbrances and security interests and not subject to any preemptive rights of any stockholder of Allegiance.
(b) Allegiance hereby agrees that, prior to the extent termination of the Option pursuant to Section 3(a) hereof, Allegiance shall not take, or allow to be taken, any action that enforceability may could result in the representations and warranties set forth in Section 5(a) hereof becoming false or inaccurate.
(c) Cardinal hereby represents and warrants to Allegiance that:
(i) Cardinal has full corporate authority to execute and deliver this Option Agreement and to consummate the transactions contemplated hereby;
(ii) such execution, delivery and consummation have been authorized by all requisite corporate action by Cardinal, and no other corporate proceedings are necessary therefor;
(iii) this Option Agreement has been duly and validly executed and delivered by Cardinal and represents a valid and legally binding obligation of Cardinal, enforceable against Cardinal in accordance with its terms; and
(iv) any Allegiance Common Stock acquired by Cardinal upon exercise of the Option will be limited by applicable bankruptcy, reorganization, insolvency, moratorium acquired for its own account and not be taken with a view to the public distribution thereof and will not be transferred or other laws affecting otherwise disposed of except in compliance with the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity;Securities Act.
(d) The execution and delivery of this Agreement by each such Shareholder and Cardinal hereby agrees that, prior to the consummation termination of the transactions contemplated hereby will Option pursuant to Section 3(a) hereof, Cardinal shall not (A) violate take, or conflict with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise allow to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice underbe taken, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or action that could result in the creation of any lien, claim representations and warranties set forth in Section 5(c) hereof becoming false or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be boundinaccurate.
(e) Each such Shareholder has not taken (and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Date.
Appears in 1 contract
Authorization, Etc. Each of the Shareholders severally represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as follows:
(a) Each of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder The Company has all necessary legal capacity, right, corporate power and authority to execute and deliver this Agreement and to the other Transaction Documents, carry out its obligations hereunder and thereunder and consummate the transactions contemplated herebyhereby and thereby (including duly filing the Certificate of Designation with the Secretary of State of the State of Delaware, duly and this Agreement constitutes a valid validly issuing, selling and binding obligation of such Shareholder enforceable in accordance with its termsdelivering the Purchased Shares and duly and validly reserving, except to issuing and delivering the extent that enforceability may be limited Conversion Shares (as defined below)). The execution, delivery and performance by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity;
(d) The execution and delivery Company of this Agreement by each such Shareholder and the other Transaction Documents and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company, and no further approval or authorization is required therefor on the part of the Company. The authorization, execution, delivery and performance by the Company of this Agreement and the other Transaction Documents and the consummation by the Company of the transactions contemplated hereby and thereby: (a) do not and will not violate, conflict with, or result in the breach of any term, condition or provision of the Company’s Restated Certificate of Incorporation, as amended (the “Charter”), the Certificate of Designation or the Bylaws or the certificate of incorporation, charter, bylaws or other governing instrument of any Subsidiary of the Company; (b) with such exceptions that were not, and would not reasonably be expected, individually or in the aggregate, to be, material, do not and will not (A) violate whether with or conflict with any provision of any partnership agreement, operating agreement without notice or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving both) (i) violate any provision of notice or both would constitute an event of default) or result in a breach or default under, give rise to the termination of, acceleration of the performance required by, or result in any payment obligations under, or result in a right of termination, cancellation, modification acceleration or acceleration under or require any consent or the giving of any notice payment under, any Material Contract, or material mortgage, credit or loan agreement, note, bond, indenture, mortgagedeed of trust, security agreementlicense, lease, license, franchise, permit, agreement contract or other instrument or obligation to which such Shareholder the Company or any of its Subsidiaries is a partyparty or is bound, or to which the Company or any of its Subsidiaries or any of the properties or assets of the Company or any of its Subsidiaries may be subject, including as a result of any change of control or similar provision; or (ii) result in the creation of any lien, claim security interest, charge or encumbrance or other right upon any of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant the Company or any of its Subsidiaries or the suspension, revocation, impairment, non-renewal or forfeiture of any franchise, permit or license or other right granted by any Governmental Authority to the terms Company or any of its Subsidiaries; and (c) do not and will not (whether without notice or lapse of time or both) (i) violate any provision of any such instrument or obligationjudgment, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgmentruling, order, writ, injunction, injunction or decree applicable to the Company or other instrument any of its Subsidiaries; or (ii) violate any provision of any court Applicable Law. This Agreement has been and the other Transaction Documents (other than the Certificate of Designation) have or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound.
(e) Each such Shareholder has not taken (and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code.
Initial Closing) will have been duly executed and delivered by the Company. The Certificate of Designation has been duly executed and has been or (fas of the Initial Closing) Effective upon will have been filed with the Closing, each such Shareholder voluntarily releases Secretary of State of the State of Delaware. Assuming due execution and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of delivery thereof by each of the foregoing other applicable parties (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against other than the Company) hereto or thereto, Parent, First Acquisition Corp., Second Acquisition Corp. or any this Agreement and the other Parent Releasees, whether arising under federal or state law Transaction Documents will each be a valid and whether as a Shareholder or employee binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by Applicable Laws relating to bankruptcy, insolvency, reorganization, moratorium or other similar legal requirement relating to or affecting creditors’ rights generally and except as such enforceability is subject to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law). The Company has exercised reasonable care to determine whether any other capacityCompany Covered Person (as defined below) is subject to any of the “bad actor” disqualifications described in Rule 506(d)(1)(i) through (viii), as modified by Rules 506(d)(2) and (d)(3), under the Securities Act (“Disqualification Events”). To the Company’s Knowledge, no Company Covered Person is subject to a Disqualification Event. For purposes of this Agreement, “Company Covered Persons” are those persons specified in Rule 506(d)(1) under the Securities Act; provided, however, such release shall not apply to any breach that for purposes of this Agreement Company Covered Persons do not include (a) the Investor, (b) any person or entity that is deemed to be an affiliated issuer of the Company solely as a result of the relationship between the Company and the Investor, or (c) any director of the Company that has been designated by any Parent Releasees or to any matter that arises after the Closing DateInvestor.
Appears in 1 contract
Authorization, Etc. Each of the Shareholders severally represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as follows:
(a) Each of The Corporation has full power and authority to enter into this Agreement and the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings agreements contemplated hereby to which such Shareholder the Corporation is a party (and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance of this Agreement and all other than this Agreement) involving agreements and transactions contemplated hereby have been duly authorized by the purchase, sale or other acquisition or disposition Board of Directors and prior to the Closing will be authorized by the shareholders of the Common Stock owned Corporation and no other corporate proceedings on their part are necessary to authorize this Agreement and the agreements contemplated hereby and the transactions contemplated hereby and thereby. This Agreement and all other agreements contemplated hereby to be entered into by such Shareholder;the Corporation each constitutes a legal, valid and binding obligation of the Corporation enforceable against the Corporation in accordance with its terms.
(b) Each Seller is the sole owner of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder has all necessary legal capacity, full right, power and authority to execute sell and deliver vote the Shares set forth opposite the signature line for such Seller's name below. Each Seller has full power and authority to enter into this Agreement and the agreements contemplated hereby and to consummate deliver the transactions Shares and the certificates evidencing such Shares to the Purchaser as provided for herein, free and clear of all Liens. This Agreement and all other agreements contemplated herebyhereby to be entered into by the Sellers each constitute a legal, and this Agreement constitutes a valid and binding obligation of the Seller who is a party thereto enforceable against such Shareholder enforceable Seller in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity;.
(dc) The execution Except as set forth in Schedule 2.6 attached hereto, the execution, delivery and delivery performance by the Corporation and the Sellers of this Agreement by each such Shareholder Agreement, and all other agreements contemplated hereby, and the consummation fulfillment of and compliance with the transactions contemplated hereby respective terms hereof and thereof by the Corporation and the Sellers, do not and will not (Aa) violate or conflict with any provision or result in a breach of any partnership agreementthe terms, operating agreement conditions or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability companyprovisions of, (Bb) breach, violate constitute a default or constitute an event of default under (whether with or an event which with without due notice, the lapse passage of time or the giving of notice or both would constitute an event of defaultboth), (c) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lienLien upon the Corporation's capital stock or assets pursuant to, claim or encumbrance or other right of (d) give any third party of the right to modify, terminate or accelerate any kind whatsoever upon the properties or assets of such Shareholder pursuant to the terms of any such instrument or obligationobligation under, which breach, (e) result in a violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunderof, or (Cf) violate require any authorization, consent, approval, exemption or conflict other action by, notice to, or filing with any lawthird party or Authority pursuant to, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree the charter or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound.
(e) Each such Shareholder has not taken (and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) bylaws of the Code.
(f) Effective upon Corporation or any applicable Regulation, Order or Contract to which the ClosingCorporation, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., the Sellers or their respective affiliates, subsidiaries, predecessors, successors and assigns, and each properties or the Shares are subject. Each of them, the Sellers and the current Corporation has complied with all applicable Regulations and former officersOrders in connection with the execution, directors, stockholders, employees, delivery and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach performance of this Agreement by any Parent Releasees or to any matter that arises after Agreement, the Closing Dateagreements contemplated hereby and the transactions contemplated hereby and thereby.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Synthesis Energy Systems Inc)
Authorization, Etc. Each of the Shareholders severally represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as follows:
(a) Each Acquiror and each other Buyer is a corporation or other legal entity duly organized, validly existing and in good standing (in such jurisdictions where such concept is applicable) under the laws of the Shareholders is jurisdiction of its incorporation or organization. Acquiror has the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder has all necessary legal capacity, right, corporate power and authority to execute and deliver this Agreement and each Ancillary Agreement to which it will be a party, to perform fully its obligations thereunder, and to consummate the transactions contemplated herebythereby. Each Buyer has the corporate or other entity power and authority, or applicable to execute and deliver each Ancillary Agreement to which it will be a party, to perform fully its obligations thereunder, and this Agreement constitutes a valid and binding obligation of such Shareholder enforceable in accordance with its terms, except to consummate the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity;transactions contemplated thereby.
(db) The execution and delivery by Acquiror of this Agreement by and each such Shareholder Ancillary Agreement to which it will be a party and the consummation of the transactions contemplated hereby will not (A) violate or conflict with any provision thereby have been duly authorized by all requisite corporate action of any partnership agreement, operating agreement or other constitutional documents of Acquiror. Acquiror has duly executed and delivered this Agreement and each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation Ancillary Agreement to which such Shareholder is it will be a party, or result and this Agreement and each Ancillary Agreement to which it will be a party is the legal, valid and binding obligation of Acquiror, enforceable against it in the creation of any lienaccordance with its respective terms, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of except as such Shareholder pursuant to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder enforceability may be boundlimited by bankruptcy, insolvency, reorganization and similar laws affecting creditors generally and by the availability of equitable remedies.
(ec) Each such Shareholder has not taken (On the Closing Date, the execution and delivery by each Buyer of each Ancillary Agreement to which it will not take) any action or failed to take any action that would cause be a party, and the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) consummation of the Code.
(f) Effective upon transactions contemplated thereby, will have been duly authorized by all requisite corporate or other entity action, or applicable of such Buyer. On the ClosingClosing Date, each such Shareholder voluntarily releases Buyer will have duly executed and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assignsdelivered each Ancillary Agreement to which it will be a party, and each such agreement will be the legal, valid and binding obligation of themsuch Buyer, enforceable against such Buyer in accordance with its respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization and similar laws, affecting creditors generally and by the current and former officers, directors, stockholders, employees, and agents availability of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Dateequitable remedies.
Appears in 1 contract
Sources: Acquisition Agreement (Weatherford International PLC)
Authorization, Etc. Each of the Shareholders severally (a) The Company hereby represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as followsAcquiror that:
(ai) Each of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder Company has all necessary legal capacity, right, power and full corporate authority to execute and deliver this Option Agreement and to consummate the transactions contemplated hereby;
(ii) such execution, delivery and consummation have been authorized by the Board of Directors of the Company, and no other corporate proceedings are necessary therefor;
(iii) this Option Agreement constitutes has been duly and validly executed and delivered by the Company and represents a valid and legally binding obligation of such Shareholder the Company, enforceable against the Company in accordance with its terms; and
(iv) the Company has taken all necessary corporate action to authorize and reserve and permit it to issue and, except at all times from the date hereof through the date of the exercise in full or the expiration or termination of the Option, shall have reserved for issuance upon exercise of the Option, 772,243 shares of the Company's Common Stock (subject to adjustment as provided herein), all of which, upon issuance in accordance with the terms of this Option Agreement, shall be duly authorized, validly issued, fully paid and nonassessable, and shall be delivered free and clear of all claims, liens, encumbrances and security interests and not subject to any preemptive rights of any shareholder of the Company.
(b) The Acquiror hereby represents and warrants to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting Company that:
(i) the enforcement of creditors, rights generally Acquiror has full corporate authority to execute and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equitydeliver this Option Agreement and to consummate the transactions contemplated hereby;
(dii) The execution such execution, delivery and delivery of consummation have been authorized by all requisite corporate action by the Acquiror, and no other corporate proceedings are necessary therefor;
(iii) this Option Agreement has been duly and validly executed and delivered by each such Shareholder the Acquiror and the consummation represents a valid and legally binding obligation of the transactions contemplated hereby will not Acquiror, enforceable against the Acquiror in accordance with its terms; and
(Aiv) violate or conflict with any provision shares of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Company's Common Stock held acquired by such Shareholder may the Acquiror upon exercise of the Option will be bound.
(e) Each such Shareholder has not taken (acquired for its own account and will not take) any action be taken with a view to the public distribution thereof and will not be transferred or failed to take any action that would cause otherwise disposed of except in compliance with the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code1933 Act.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Date.
Appears in 1 contract
Authorization, Etc. Each of the Shareholders severally (a) Seller hereby represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as followsBuyer that:
(ai) Each of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder Seller has all necessary legal capacity, right, power and full corporate authority to execute and deliver this Option Agreement and and, subject to Section 11(i), to consummate the transactions contemplated hereby;
(ii) such execution, delivery and consummation have been authorized by the Board of Directors of Seller, and no other corporate proceedings are necessary therefor;
(iii) this Option Agreement constitutes has been duly and validly executed and delivered and represents a valid and legally binding obligation of such Shareholder Seller, enforceable against Seller in accordance with its terms; and
(iv) Seller has taken all necessary corporate action to authorize and reserve and, except subject to Section 11(i), permit it to issue and, at all times from the extent that enforceability may date hereof through the date of the exercise in full or the expiration or termination of the Option, shall have reserved for issuance upon exercise of the Option, 1,564,662 shares of Seller Common Stock, all of which, upon issuance pursuant hereto, shall be limited by applicable bankruptcyduly authorized, reorganizationvalidly issued, insolvencyfully paid and nonassessable, moratorium or and shall be delivered free and clear of all claims, liens, encumbrances, restrictions (other laws affecting than federal and state securities restrictions) and security interests and not subject to any preemptive rights.
(b) Buyer hereby represents and warrants to Seller that:
(i) Buyer has full corporate authority to execute and deliver this Option Agreement and, subject to Section 11(i), to consummate the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equitytransactions contemplated hereby;
(dii) The execution such execution, delivery and delivery consummation have been authorized by all requisite corporate action by Buyer, and no other corporate proceedings are necessary therefor;
(iii) this Option Agreement has been duly and validly executed and delivered and represents a valid and legally binding obligation of this Agreement Buyer, enforceable against Buyer in accordance with its terms; and
(iv) any Seller Common Stock or other securities acquired by each such Shareholder and the consummation Buyer upon exercise of the transactions contemplated hereby Option will not (A) violate or conflict be taken with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant view to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound.
(e) Each such Shareholder has not taken (public distribution thereof and will not take) any action be transferred or failed to take any action that would cause otherwise disposed of except in compliance with the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the CodeSecurities Act and applicable state law.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Date.
Appears in 1 contract
Sources: Stock Option Agreement (Mercantile Bancorporation Inc)
Authorization, Etc. Each of the Shareholders severally represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as follows:
(a) Each The Purchaser has all necessary limited partnership or other entity power and authority and the Purchaser and its general partner have taken all necessary partnership or other entity action required for the due authorization, execution, delivery and performance by the Purchaser of this Agreement and the Registration Rights Agreement and the consummation by the Purchaser of the Shareholders is the sole transactions contemplated hereby and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;thereby.
(b) Each The authorization, execution, delivery and performance by the Purchaser of this Agreement and the Registration Rights Agreement, and the consummation by the Purchaser of the Shareholders shall transactions contemplated hereby and thereby do not and will not: (Aa) simultaneously violate or result in the breach of any provision of the certificate of limited partnership and limited partnership agreement (or similar organizational document) of the Purchaser; or (b) with such Shareholder’s the exceptions that are not reasonably likely to have, individually or in the aggregate, a material adverse effect on its ability to perform its obligations under this Agreement and the Registration Rights Agreement: (i) violate any provision of, constitute a breach of, or default under, any judgment, order, writ, or decree applicable to the Purchaser or any material contract to which the Purchaser is a party; or (ii) violate any provision of, constitute a breach of, or default under, any applicable state, federal or local law, rule or regulation. This Agreement has been, and the Registration Rights Agreement will, at the Closing be, duly executed and delivered by the Purchaser. Assuming due execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement thereof by the Companyother parties hereto or thereto, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder has all necessary legal capacity, right, power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and this Registration Rights Agreement constitutes will each be a valid and binding obligation of such Shareholder the Purchaser enforceable against the Purchaser in accordance with its terms, except to as the extent that enforceability may be limited by applicable laws relating to bankruptcy, insolvency, reorganization, insolvency, moratorium or other laws similar legal requirement relating to or affecting the enforcement of creditors, ’ rights generally and by except as the enforceability is subject to general principles of equity, equity (regardless of whether such enforceability is considered in a proceeding in law equity or in equity;
(d) The execution and delivery of this Agreement by each such Shareholder and the consummation of the transactions contemplated hereby will not (A) violate or conflict with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any at law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound).
(e) Each such Shareholder has not taken (and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Date.
Appears in 1 contract
Authorization, Etc. Each of The Owners are the Shareholders severally represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as follows:
(a) Each of the Shareholders is the sole and exclusive record and beneficial owner owners of all of the Common Stock outstanding shares of capital stock or membership interests, as the case may be, in the Companies as set forth opposite his or her name in Schedule 3.4 on EXHIBIT B hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) . Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder Owner has all necessary full legal capacity, right, power and authority to execute and deliver this Agreement and each of the Acquisition Documents and to consummate perform all of the transactions contemplated herebyobligations of such Owner hereunder and thereunder. Each of the Companies has full legal right, power and authority to execute and deliver this Agreement constitutes a valid and binding obligation the Acquisition Documents, to perform its obligations hereunder and thereunder, and, subject to obtaining the consents disclosed on SCHEDULES 3.11(a), 3.11(b) AND 3.23 attached hereto, to sell, assign, transfer, convey and deliver its Assets and its Doctor's Assets pursuant hereto and thereto. The Managers or Board of such Shareholder enforceable in accordance with Directors, as the case may be, of each of the Companies has taken, or will take before the Closing Date, all actions required by law, its termsrespective Articles of Organization, except to the extent that enforceability may be limited by applicable bankruptcyArticles of Incorporation, reorganizationOperating Agreement, insolvency, moratorium By-Laws or other laws affecting similar governing documents or otherwise to authorize the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity;
(d) The execution and delivery of this Agreement by each such Shareholder and the consummation of the transactions contemplated hereby will not (A) violate or conflict with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound.
(e) Each such Shareholder has not taken (and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of themDocuments, and the current performance of its obligations hereunder and former officers, directors, stockholders, employees, thereunder. This Agreement has been duly executed and agents delivered by the Companies and the Owners and upon the execution and delivery of the remaining Acquisition Documents by a duly authorized officer of each of the foregoing Companies and the Owners (any and all of with respect to each such document to which are referred to as the “Parent Releasees”it is a party), from all charges, complaints, claims, promises, agreements, causes the remaining Acquisition Documents will have been duly executed and delivered by each of action, damagesthe Companies and the Owners (with respect to each such document to which it is a party), and debts this Agreement is and such other Acquisition Documents will be, upon due execution and delivery thereof, the legal, valid, and binding obligations of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee each of the Company or in any other capacity; provided, however, Companies and the Owners (with respect to each such release shall not apply document to any breach which it is a party) enforceable against each of this Agreement by any Parent Releasees or them according to any matter that arises after the Closing Datetheir terms.
Appears in 1 contract
Sources: Master Asset Purchase Agreement (Eye Care Centers of America Inc)
Authorization, Etc. Each of The Purchaser has the Shareholders severally represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as follows:
(a) Each of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder has all necessary legal capacity, right, corporate power and authority to execute and deliver this Agreement and the Ancillary Agreements, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated herebyhereby and thereby. The execution, delivery and this Agreement constitutes a valid and binding obligation of such Shareholder enforceable in accordance with its terms, except to the extent that enforceability may be limited performance by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity;
(d) The execution and delivery Purchaser of this Agreement by each such Shareholder and the Ancillary Agreements and the consummation of the transactions contemplated hereby will not (A) violate or conflict with any provision and thereby have been duly authorized by the board of any partnership agreement, operating agreement or other constitutional documents directors of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant to the terms of any such instrument or obligationPurchaser, which breach, violation or event of default would have a material adverse effect constitutes all necessary corporate action on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound.
(e) Each such Shareholder has not taken (and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) part of the Code.
(f) Effective upon the Closing, each Purchaser for such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assignsauthorization. This Agreement has been, and each of themthe Ancillary Agreements when executed and delivered will be, duly executed and delivered by the Purchaser and constitute the valid and binding obligations of the Purchaser, enforceable against the Purchaser in accordance with its terms, except as limited by laws affecting the enforcement of creditors' rights generally or by general equitable principles. In the event Purchaser assigns its rights hereunder to one or more Subsidiary Purchasers:
(i) such Subsidiary Purchaser will have the corporate power and authority to assume the obligations of Purchaser hereunder, to execute and deliver the Ancillary Agreements to which it becomes a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby;
(ii) the assumption of the obligations of the Purchaser hereunder, the execution, delivery and performance by such Subsidiary Purchaser of the Ancillary Agreements to which it is a party and the current consummation of the transactions contemplated hereby and former officers, directors, stockholders, employees, and agents thereby will have been duly authorized by all necessary corporate action on the part of such Subsidiary Purchaser; and
(iii) each of the foregoing (any Ancillary Agreements, when executed and all delivered by such Subsidiary Purchaser, will be duly executed and delivered by such Subsidiary Purchaser and will constitute, together with this Agreement, the valid and binding obligations of which are referred to such Subsidiary Purchaser, enforceable against such Subsidiary Purchaser in accordance with its terms, except as limited by laws affecting the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes enforcement of action, damages, and debts of any nature whatsoever, known creditors' rights generally or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Dategeneral equitable principles.
Appears in 1 contract
Sources: Stock Purchase Agreement (Aavid Thermal Technologies Inc)
Authorization, Etc. Each of the Shareholders severally The Shareholder represents and warrants to the Parent, First Acquisition Corp. Parent and Second Acquisition Corp. as follows:
(ai) Each of the Shareholders The Shareholder is the sole and exclusive record and beneficial owner of the Common Company Capital Stock of the Company set forth opposite his or her name in Schedule 3.4 SCHEDULE 3.4(A) hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and and, except as set forth on SCHEDULE 3.4(B) hereto, there are no agreements, arrangements or understandings to which such the Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Company Capital Stock owned by such the Shareholder;
(bii) Each of the Shareholders Shareholder shall (A) simultaneously concurrently with such the Shareholder’s 's execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or a written consent in which such the Shareholder voted all Common Company Capital Stock owned by such the Shareholder in favor of the Mergers Merger and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Company Capital Stock owned by such the Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(ciii) Such the Shareholder has all necessary legal capacity, right, power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and this Agreement constitutes a valid and binding obligation of such the Shareholder enforceable in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity;; and
(div) The the execution and delivery of this Agreement by each such the Shareholder and the consummation of the transactions contemplated hereby will not (A) violate or conflict with any provision of any partnership agreement, operating agreement or other constitutional documents of each such the Shareholder that is constituted as a general or limited partnership or limited liability companypartnership, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such the Shareholder is a party, or by which the Shareholder or the Company Capital Stock held by the Shareholder may be bound, or result in the creation of any material lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such the Shareholder pursuant to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such the Shareholder’s 's ability to perform such the Shareholder’s 's obligations hereunder, or (C) to the Shareholder's knowledge, violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such the Shareholder or by which Common such the Company Capital Stock held by such the Shareholder may be bound.
(e) Each such Shareholder has not taken (and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Date.
Appears in 1 contract
Authorization, Etc. Each of the Shareholders severally represents and warrants to Sellers has the Parent, First Acquisition Corp. and Second Acquisition Corp. as follows:
(a) Each of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder has all necessary legal capacity, right, corporate power and authority to execute and deliver this Agreement, along with the Local Purchase Agreements and the Target Asset Purchase Agreement (as defined in Section 4.10, together with the Local Purchase Agreements and any instruments of transfer and similar instruments contemplated herein required to be executed and delivered by it pursuant to this Agreement in order to consummate the transactions contemplated hereby, the "ANCILLARY AGREEMENTS"), to which it is or will be a party, to perform its obligations hereunder and this Agreement constitutes a valid thereunder and binding obligation of such Shareholder enforceable in accordance with its termsto consummate the transactions contemplated hereby and thereby. The execution, except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors, rights generally delivery and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity;
(d) The execution and delivery performance of this Agreement by each such Shareholder and the Ancillary Agreements and the consummation of the transactions contemplated hereby will not (A) violate or conflict with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with and thereby have been duly authorized by the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third Sellers party of any kind whatsoever upon the properties or assets of such Shareholder pursuant to the terms of any such instrument or obligationhereto and thereto, which breach, violation or event of default would have a material adverse effect constitutes all necessary corporate action on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound.
(e) Each such Shareholder has not taken (and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) part of the Code.
(f) Effective upon the Closing, each Sellers for such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assignsauthorization. This Agreement has been, and each of themthe Ancillary Agreements when executed and delivered will be, duly executed and delivered by the Sellers party hereto and thereto, and constitute the current valid and former officersbinding obligations of the Sellers, directorsenforceable against each of them in accordance with their terms, stockholdersexcept as limited by laws affecting the enforcement of creditors' rights generally or by general equitable principles. The Purchaser has previously been furnished with complete and correct copies of the certificate or articles of incorporation or association, employeesmemorandum of association, by-laws and other organizational documents (the "ORGANIZATIONAL DOCUMENTS") of each Target Company and its respective subsidiaries (collectively, the "TARGET COMPANY GROUP"). Such Organizational Documents are in full force and effect, and agents neither the Sellers nor any member of the Target Company Group are in violation of any of the provisions of their respective Organizational Documents. The stock certificate books, the stock record books and/or other statutory books of each member of the foregoing (any Target Company Group are correct and complete in all material respects, and all actions required to be approved by the directors and/or stockholders of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee each member of the Target Company Group under applicable law have been so approved, except where the failure to obtain such approval will not (I) adversely affect the ability of Purchaser to conduct the Business in all material respects as currently conducted or (II) result in any other capacity; provided, however, a liability to such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing DateTarget Company Group member.
Appears in 1 contract
Sources: Stock Purchase Agreement (Aavid Thermal Technologies Inc)
Authorization, Etc. Each of the Shareholders severally (a) Company hereby represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as followsParent that:
(ai) Each of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder Company has all necessary legal capacity, right, power and full corporate authority to execute and deliver this Option Agreement and to consummate the transactions contemplated hereby;
(ii) such execution, delivery and consummation have been authorized by the Board of Directors of Company, and no other corporate proceedings are necessary therefor;
(iii) this Option Agreement constitutes has been duly and validly executed and delivered and represents a valid and legally 3 binding obligation of such Shareholder Company, enforceable against Company in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors, rights generally Bankruptcy Exception and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equitysubject to the Equity Exception;
(div) The Company has taken all necessary corporate action to authorize and reserve and permit it to issue and, at all times from the date hereof through the date of the exercise in full or the expiration or termination of the Option, shall have reserved for issuance upon exercise of the Option, a number of shares of Common Stock equal to 19.9% of the outstanding shares of Common Stock on the date hereof (as such number may be adjusted pursuant to Section 6 hereof or because of any increase in the number of outstanding shares of Common Stock after the date hereof) all of which, upon issuance pursuant hereto, shall be duly authorized, validly issued, fully paid and nonassessable, and shall be delivered free and clear of all claims, liens, encumbrances, restrictions, security interests and preemptive rights; and
(v) except as otherwise required by the Antitrust Laws and other than any filings required under applicable securities and blue sky laws, the execution and delivery of this Option Agreement by each such Shareholder Company and the consummation by it of the transactions contemplated hereby do not require the consent, waiver, approval or authorization of or any filing with any person or public authority and will not (A) violate violate, result in a breach of or conflict with the acceleration of any obligation under, or constitute a default under, any provision of any partnership agreement, operating agreement charter or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bondbylaw, indenture, mortgage, security agreementlien, lease, licenseagreement, franchisecontract, permitinstrument, agreement or other instrument or obligation to which such Shareholder is a partyorder, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, orderordinance, writor decree, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or restriction by which Common Stock held by such Shareholder may be Company or any of its Subsidiaries or any of their respective properties or assets is bound.
(eb) Each Parent hereby represents and warrants to Company that:
(i) Parent has full corporate authority to execute and deliver this Option Agreement and to consummate the transactions contemplated hereby;
(ii) such Shareholder execution, delivery and consummation have been authorized by all requisite corporate action by Parent, and no other corporate proceedings are necessary therefor;
(iii) this Option Agreement has been duly and validly executed and delivered and represents a valid and legally binding obligation of Parent, enforceable against Parent in accordance with its terms, except that enforcement may be limited by the Bankruptcy Exception and is subject to the Equity Exception;
(iv) any Common Stock or other securities acquired by Parent upon exercise of the Option will not be taken (with a view to the public distribution thereof and will not takebe
(v) except as otherwise required by the Antitrust Laws and other than any action or failed to take any action that would cause filings required under applicable securities and blue sky laws, the Mergers to fail to qualify as a “reorganization” within execution and delivery of this Option Agreement by Parent and the meaning of Section 368(a) consummation by it of the Code.
(f) Effective upon transactions contemplated hereby do not require the Closingconsent, each such Shareholder voluntarily releases waiver, approval or authorization of or any filing with any person or public authority and discharges Parentwill not violate, First Acquisition Corp. and Second Acquisition Corp.result in a breach of or the acceleration of any obligation under, or constitute a default under, any provision of any charter or by- law, indenture, mortgage, lien, lease, agreement, contract, instrument, order, law, rule, regulation, judgment, ordinance, or decree, or restriction by which Parent or any of its Subsidiaries or any of their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known properties or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Dateassets is bound.
Appears in 1 contract
Sources: Company Option Agreement (Ballard Medical Products)
Authorization, Etc. Each of the Shareholders severally represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as follows:
(a) Each The Corporation has full power and authority to enter into this Agreement, and the Transaction Documents to which the Corporation is a party, and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance of this Agreement, the Transaction Documents and the transactions contemplated hereby and thereby have been duly authorized by the board of directors and the stockholders of the Shareholders is Corporation and no other corporate proceedings on their part are necessary to authorize this Agreement, the sole Transaction Documents and exclusive record the transactions contemplated hereby and beneficial owner thereby. This Agreement and the Transaction Documents to be entered into by the Corporation each constitutes a legal, valid and binding obligation of the Common Stock set forth opposite his or her name Corporation, enforceable against the Corporation in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;accordance with its terms.
(b) Each Seller is the sole owner of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder has all necessary legal capacity, full right, power and authority to sell and vote the Stock set forth opposite the signature line for such Seller's name below. Each Seller has the requisite power and authority to execute and deliver this Agreement and to consummate the transactions contemplated herebyTransaction Documents, and to perform his or her obligations hereunder and thereunder, and to sell, assign, transfer and convey the shares of Stock, and the certificates evidencing such Stock, so owned by such Seller to the Purchaser pursuant to this Agreement, free and clear of all Liens, Claims and Orders. This Agreement constitutes and the Transaction Documents to be entered into by the Sellers each constitute a legal, valid and binding obligation of such Shareholder each Seller who is a party thereto, enforceable against each Seller in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity;.
(dc) The execution execution, delivery and delivery performance by the Corporation and the Sellers of this Agreement by each such Shareholder and the consummation Transaction Documents, and the fulfillment of and compliance with the transactions contemplated hereby respective terms hereof and thereof by the Corporation and the Sellers, do not and will not (Aa) violate or conflict with any provision or result in a breach of any partnership agreementthe terms, operating agreement conditions or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability companyprovisions of, (Bb) breach, violate constitute a default or constitute an event of default under (whether with or an event which with without due notice, the lapse passage of time or the giving of notice or both would constitute an event of defaultboth), (c) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lienLien upon the Corporation's capital stock or assets pursuant to, claim or encumbrance or other right of (d) give any third party of the right to modify, terminate or accelerate any kind whatsoever upon the properties or assets of such Shareholder pursuant to the terms of any such instrument or obligationobligation under, which breach, (e) result in a violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunderof, or (Cf) violate require any authorization, consent, approval, exemption or conflict other action by, notice to, or filing with any lawthird party or Authority pursuant to, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree the charter or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound.
(e) Each such Shareholder has not taken (and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) bylaws of the Code.
(f) Effective upon Corporation or any applicable Regulation, Order or Contract to which the ClosingCorporation, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., the Sellers or their respective affiliates, subsidiaries, predecessors, successors and assigns, and each properties or the Stock are subject. Each of them, the Sellers and the current Corporation has complied with all applicable Regulations and former officersOrders in connection with the execution, directors, stockholders, employees, delivery and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach performance of this Agreement by any Parent Releasees or to any matter that arises after Agreement, the Closing DateTransaction Documents and the transactions contemplated hereby and thereby.
Appears in 1 contract
Authorization, Etc. Each of the Shareholders severally represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as follows:
(a) Each of The Corporation has full power and authority to enter into this Agreement and the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings agreements contemplated hereby to which such Shareholder the Corporation is a party (and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance of this Agreement and all other than this Agreement) involving agreements and transactions contemplated hereby have been duly authorized by the purchase, sale or other acquisition or disposition Board of Directors and prior to the Closing will be authorized by the shareholders of the Common Stock owned Corporation and no other corporate proceedings on their part are necessary to authorize this Agreement and the agreements contemplated hereby and the transactions contemplated hereby and thereby. This Agreement and all other agreements contemplated hereby to be entered into by such Shareholder;the Corporation each constitutes a legal, valid and binding obligation of the Corporation enforceable against the Corporation in accordance with its terms.
(b) Each Seller is the sole owner of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder has all necessary legal capacity, full right, power and authority to execute sell and deliver vote the Shares set forth opposite the signature line for such Seller’s name below. Each Seller has full power and authority to enter into this Agreement and the agreements contemplated hereby and to consummate deliver the transactions Shares and the certificates evidencing such Shares to the Purchaser as provided for herein, free and clear of all Liens. This Agreement and all other agreements contemplated herebyhereby to be entered into by the Sellers each constitute a legal, and this Agreement constitutes a valid and binding obligation of the Seller who is a party thereto enforceable against such Shareholder enforceable Seller in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity;.
(dc) The execution Except as set forth in Schedule 2.6 attached hereto, the execution, delivery and delivery performance by the Corporation and the Sellers of this Agreement by each such Shareholder Agreement, and all other agreements contemplated hereby, and the consummation fulfillment of and compliance with the transactions contemplated hereby respective terms hereof and thereof by the Corporation and the Sellers, do not and will not (Aa) violate or conflict with any provision or result in a breach of any partnership agreementthe terms, operating agreement conditions or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability companyprovisions of, (Bb) breach, violate constitute a default or constitute an event of default under (whether with or an event which with without due notice, the lapse passage of time or the giving of notice or both would constitute an event of defaultboth), (c) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lienLien upon the Corporation’s capital stock or assets pursuant to, claim or encumbrance or other right of (d) give any third party of the right to modify, terminate or accelerate any kind whatsoever upon the properties or assets of such Shareholder pursuant to the terms of any such instrument or obligationobligation under, which breach, (e) result in a violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunderof, or (Cf) violate require any authorization, consent, approval, exemption or conflict other action by, notice to, or filing with any lawthird party or Authority pursuant to, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree the charter or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound.
(e) Each such Shareholder has not taken (and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) bylaws of the Code.
(f) Effective upon Corporation or any applicable Regulation, Order or Contract to which the ClosingCorporation, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., the Sellers or their respective affiliates, subsidiaries, predecessors, successors and assigns, and each properties or the Shares are subject. Each of them, the Sellers and the current Corporation has complied with all applicable Regulations and former officersOrders in connection with the execution, directors, stockholders, employees, delivery and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach performance of this Agreement by any Parent Releasees or to any matter that arises after Agreement, the Closing Dateagreements contemplated hereby and the transactions contemplated hereby and thereby.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Synthesis Energy Systems Inc)
Authorization, Etc. Each of the Shareholders severally represents Parent and warrants Buyer has all requisite authority and corporate power to the Parent, First Acquisition Corp. execute and Second Acquisition Corp. as follows:
(a) Each of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than deliver this Agreement) involving , the purchaseSupply Agreement, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of Escrow Agreement and the Shareholders shall (A) simultaneously with such Shareholder’s Note, to carry out the transactions contemplated hereby and thereby and to own, lease and operate the IGC-Advanced Superconductor Division Assets and to conduct the Business. The execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers Supply Agreement, the Escrow Agreement and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder has all necessary legal capacity, right, power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and this Agreement constitutes a valid and binding obligation of such Shareholder enforceable in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity;
(d) The execution and delivery of this Agreement by each such Shareholder Note and the consummation of the transactions contemplated hereby will not (A) violate or conflict with any provision and thereby have been duly and validly authorized by the Board of any partnership agreement, operating agreement or other constitutional documents Directors of each such Shareholder that is constituted as a general or limited partnership or limited liability companyof Parent and Buyer and no other corporate proceedings are necessary to authorize the execution and delivery of this Agreement, (B) breachthe Supply Agreement, violate or constitute an event of default (or an event which with the lapse of time Escrow Agreement and the Note or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound.
(e) Each such Shareholder has not taken (and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) consummation of the Code.
(f) Effective upon the Closing, each such Shareholder voluntarily releases transactions contemplated hereby and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assignsthereby. This Agreement has been, and each of themthe Supply Agreement, the Escrow Agreement and the current Note will be, duly and former officersvalidly executed and delivered by Parent and Buyer and constitutes, directorsor will constitute, stockholdersa valid and binding agreement of Parent and Buyer, employeesenforceable against Parent and Buyer in accordance with its terms, except that (a) rights to indemnification may be limited by law (including rules and agents regulations promulgated thereunder) or (***) The omitted information has been filed separately with the Commission and is the subject of each a confidential treatment request. public policy, (b) such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium (whether general or specific) or other similar laws now or hereafter in effect relating to creditors' rights generally and (c) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the foregoing (court before which any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Dateproceeding therefor may be brought.
Appears in 1 contract
Authorization, Etc. Each of the Shareholders severally (a) Issuer hereby represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as followsGrantee that:
(ai) Each of the Shareholders is the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder Issuer has all necessary legal capacity, right, power and full corporate authority to execute and deliver this Option Agreement and to consummate the transactions contemplated hereby;
(ii) such execution, delivery and consummation have been authorized by the board of directors of Issuer, and no other corporate proceedings are necessary therefor;
(iii) this Option Agreement constitutes has been duly and validly executed and delivered by Issuer and represents a valid and legally binding obligation of such Shareholder Issuer, enforceable against Issuer in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity;
(div) The Issuer has taken all necessary corporate action to authorize and reserve and permit it to issue and, at all times from the date hereof through the date of the exercise in full or the expiration or termination of the Option, shall have reserved for issuance upon exercise of the Option, 5,188,913 shares of Issuer Common Stock (subject to adjustment as provided herein), all of which, upon issuance in accordance with the terms of this Option Agreement, shall be duly authorized, validly issued, fully paid and nonassessable, and shall be delivered free and clear of all claims, liens, encumbrances and security interests and not subject to any preemptive rights of any stockholder of Issuer;
(v) Issuer's board of directors has taken all appropriate and necessary actions such that Section 203 of the Delaware General Corporation Law is inapplicable to the execution and delivery of this Option Agreement by each such Shareholder and to the consummation of the transactions contemplated hereby hereby;
(vi) no other "fair price," "moratorium," "control share acquisition" or other similar anti-takeover statute or regulation as in effect on the date hereof is applicable to the execution and delivery of this Option Agreement, the Issuer Common Stock issuable hereunder or to the other transactions contemplated by this Option Agreement;
(vii) no anti-takeover provision contained in the Issuer's certificate of incorporation or its by-laws prohibits or restricts the execution and delivery of this Option Agreement or, at the time of any exercise of the Option, will prohibit or restrict the issuance of Issuer Common Stock hereunder or the consummation of the other transactions contemplated by this Option Agreement;
(viii) the execution, delivery and performance by Issuer of and under this Option Agreement does not (A) violate or conflict with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under breach or require any consent or the giving of approval under any notice underlaw or any contract, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permitinstrument, agreement or other instrument or obligation arrangement to which such Shareholder Issuer is a partyparty or by which Issuer is bound, except for any consent or approval under any applicable law required in order for Issuer to issue the Option Shares.
(ix) none of Grantee or any of its affiliates shall become responsible or obligated, contingently or otherwise, for any obligations of any nature of Issuer or any of its affiliates by virtue of the grant of this Option.
(b) Issuer hereby agrees that, prior to the termination of the Option pursuant to Section 2(b), Issuer shall not take, or allow to be taken, any action that could result in the creation of any lien, claim representations and warranties set forth in Section 6(a) becoming false or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be boundinaccurate.
(ec) Each Grantee hereby represents and warrants to Issuer that:
(i) Grantee has full corporate authority to execute and deliver this Option Agreement and to consummate the transactions contemplated hereby;
(ii) such Shareholder execution, delivery and consummation have been authorized by all requisite corporate action by Grantee, and no other corporate proceedings are necessary therefor;
(iii) this Option Agreement has been duly and validly executed and delivered by Grantee and represents a valid and legally binding obligation of Grantee, enforceable against Grantee in accordance with its terms; and
(iv) any Issuer Common Stock acquired by Grantee upon exercise of the Option will be acquired for its own account and not be taken (with a view to the public distribution thereof and will not be transferred or otherwise disposed of except in compliance with the Securities Act.
(d) Grantee hereby agrees that, prior to the termination of the Option pursuant to Section 2(b), Grantee shall not take) any action , or failed allow to take be taken, any action that would cause could result in the Mergers to fail to qualify as a “reorganization” within the meaning of representations and warranties set forth in Section 368(a6(c) of the Codebecoming false or inaccurate.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Date.
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Authorization, Etc. Each The Company has all necessary corporate power and authority and has taken all necessary corporate action required for the due authorization, execution, delivery and performance by the Company of this Subscription Agreement and the consummation by the Company of the Shareholders severally represents transactions contemplated hereby and warrants thereby, and for the due authorization, issuance, sale and delivery of the Subscription Shares. The authorization, execution, delivery and performance by the Company of this Subscription Agreement and the consummation by the Company of the transactions contemplated hereby and thereby, including the issuance of the Subscription Shares do not and will not: (i) violate or result in the breach of any provision of the organizational documents of the Company; or (ii) with such exceptions that have not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (x) violate any provision of, constitute a breach of, or default under, any judgment, order, writ, or decree applicable to the ParentCompany or any of its Subsidiaries or any material mortgage, First Acquisition Corp. and Second Acquisition Corp. as follows:
credit agreement or contract to which the Company or any of its Subsidiaries is a party; (ay) Each violate any provision of, constitute a breach of, or default under, any applicable state, federal or local law, rule or regulation; or (z) result in the creation of any lien upon any assets of the Shareholders is Company or any of its Subsidiaries or the sole and exclusive record and beneficial owner of the Common Stock set forth opposite his suspension, revocation or her name in Schedule 3.4 hereto, free and clear forfeiture of any claimsfranchise, lienspermit or license granted by a Governmental Authority to the Company or any of its Subsidiaries, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed liens under applicable federal or state securities laws), . This Subscription Agreement has been duly executed and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving delivered by the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s Company. Assuming due execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned thereof by such Shareholder in favor each of the Mergers and the adoption of other parties hereto or thereto, this Subscription Agreement by the Company, and (B) at the Effective Time, deliver or cause to will be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities laws);
(c) Such Shareholder has all necessary legal capacity, right, power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and this Agreement constitutes a valid and binding obligation of such Shareholder the Company enforceable against the Company in accordance with its terms, except to the extent that as such enforceability may be limited by applicable laws relating to bankruptcy, insolvency, reorganization, insolvency, moratorium or other laws similar legal requirement relating to or affecting the enforcement of creditors, ’ rights generally and by except as such enforceability is subject to general principles of equity, equity (regardless of whether such enforceability is considered in a proceeding in law equity or in equity;
(d) The execution and delivery of this Agreement by each such Shareholder and the consummation of the transactions contemplated hereby will not (A) violate or conflict with any provision of any partnership agreement, operating agreement or other constitutional documents of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any at law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Common Stock held by such Shareholder may be bound).
(e) Each such Shareholder has not taken (and will not take) any action or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Code.
(f) Effective upon the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each of them, and the current and former officers, directors, stockholders, employees, and agents of each of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall not apply to any breach of this Agreement by any Parent Releasees or to any matter that arises after the Closing Date.
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Sources: Subscription Agreement (Charlotte's Web Holdings, Inc.)
Authorization, Etc. Each of the Shareholders severally represents and warrants to the Parent, First Acquisition Corp. and Second Acquisition Corp. as follows:
(a) Each of Paging Partners and Newco has the Shareholders is necessary corporate power and authority to enter into this Agreement and, to the sole extent required by the Financing, the BAP Debt Agreements and exclusive record to carry out its obligations hereunder and beneficial owner of thereunder (except for the Common Stock set forth opposite his or her name in Schedule 3.4 hereto, free approval and clear of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions on transfer imposed under applicable securities laws), and there are no agreements, arrangements or understandings to which such Shareholder is a party (other than this Agreement) involving the purchase, sale or other acquisition or disposition of the Common Stock owned by such Shareholder;
(b) Each of the Shareholders shall (A) simultaneously with such Shareholder’s execution and delivery of this Agreement, execute and deliver to Parent an irrevocable proxy or written consent in which such Shareholder voted all Common Stock owned by such Shareholder in favor of the Mergers and the adoption of this Agreement by the Company, and (B) at the Effective Time, deliver or cause to be delivered to the Parent certificates representing all Common Stock owned by such Shareholder, each such certificate to be duly endorsed for transfer and free and clear stockholders of any claims, liens, pledges, options, rights of first refusal or other encumbrances or restrictions of any nature whatsoever (other than restrictions imposed under applicable securities lawsPaging Partners);
(c) Such Shareholder has all necessary legal capacity, right, power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, and this Agreement constitutes a valid and binding obligation of such Shareholder enforceable in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors, rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding in law or in equity;
(d) . The execution and delivery of this Agreement and, to the extent required by the Financing, the BAP Debt Agreements, by Paging Partners and Newco, the performance by Paging Partners and Newco of their obligations hereunder and thereunder, and the consummation by Paging Partners and Newco 25 of 122 of the transactions contemplated hereby and thereby have been duly and validly authorized by the board of directors of each such Shareholder of Paging Partners and Newco, and no other corporate proceedings on the part of Paging Partners and Newco are necessary to authorize and approve this Agreement and the BAP Debt Agreements and the consummation of the transactions contemplated hereby will not and thereby (A) violate or conflict with any provision except for the approval and adoption of any partnership agreementthis Agreement by the stockholders of Paging Partners). As of the date hereof, operating agreement there are no agreements, arrangements or other constitutional documents requirements that require that the transactions contemplated by this Agreement, considered together in a single vote, be approved by more than a majority of each such Shareholder that is constituted as a general or limited partnership or limited liability company, (B) breach, violate or constitute an event the outstanding shares of default (or an event which with the lapse of time or the giving of notice or both would constitute an event of default) under, give rise to any right of termination, cancellation, modification or acceleration under or require any consent or the giving of any notice under, any note, bond, indenture, mortgage, security agreement, lease, license, franchise, permit, agreement or other instrument or obligation to which such Shareholder is a party, or result in the creation of any lien, claim or encumbrance or other right of any third party of any kind whatsoever upon the properties or assets of such Shareholder pursuant to the terms of any such instrument or obligation, which breach, violation or event of default would have a material adverse effect on such Shareholder’s ability to perform such Shareholder’s obligations hereunder, or (C) violate or conflict with any law, statute, ordinance, code, rule, regulation, judgment, order, writ, injunction, decree or other instrument of any court or governmental or regulatory body, agency or authority applicable to such Shareholder or by which Paging Partners Common Stock held by such Shareholder may be boundStock.
(eb) Each such Shareholder This Agreement has not taken been duly and validly executed and delivered by each of Paging Partners and Newco, and assuming the due authorization, execution and delivery hereof by BAP, is a legal, valid and binding obligation of each of Paging Partners and Newco enforceable against each of Paging Partners and Newco in accordance with its terms, except as enforceability thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally or by general principles of equity (and will not take) any action regardless of whether enforceability is considered in a proceeding at law or failed to take any action that would cause the Mergers to fail to qualify as a “reorganization” within the meaning of Section 368(a) of the Codein equity).
(fc) Effective upon The respective Boards of Directors of Paging Partners and Newco have taken all appropriate and necessary action such that the Closing, each such Shareholder voluntarily releases and discharges Parent, First Acquisition Corp. and Second Acquisition Corp., their respective affiliates, subsidiaries, predecessors, successors and assigns, and each provisions of them, and the current and former officers, directors, stockholders, employees, and agents of each Section 203 of the foregoing (any and all of which are referred to as the “Parent Releasees”), from all charges, complaints, claims, promises, agreements, causes of action, damages, and debts of any nature whatsoever, known or unknown, which such Shareholder has, claims to have, ever had, or ever claimed to have had against the Company, Parent, First Acquisition Corp., Second Acquisition Corp. or any other Parent Releasees, whether arising under federal or state law and whether as a Shareholder or employee of the Company or in any other capacity; provided, however, such release shall DGCL will not apply to any breach of the transactions contemplated by this Agreement, including without limitation the voting of the shares of Paging Partners Common Stock pursuant to the Voting 26 of 122 Agreement and the Merger. No other anti-takeover or similar statute or regulation applies or purports to apply to the transactions contemplated by any Parent Releasees or to any matter that arises after the Closing Datethis Agreement.
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