Representations and Warranties and Covenants. Each Covered Person severally represents and warrants or agrees, as applicable, for himself that: (a) Such Covered Person has (and, with respect to shares of Common Stock to be acquired, will have) good, valid and marketable title to the shares of Common Stock subject to the transfer restrictions in Section 6.1, if applicable, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind, other than pursuant to this Agreement, an agreement with APAM by which such Covered Person is bound and to which the shares of Common Stock are subject or as permitted by the policies of APAM in effect from time to time; (b) Such Covered Person has (and, with respect to shares of Common Stock to be acquired, will have) the right to vote pursuant to Section 2.1 of this Agreement all shares of Common Stock of which the Covered Person is the Sole Beneficial Owner; and (c) If the Covered Person is not a natural person: (i) such Covered Person is duly organized and validly existing in good standing under the laws of the jurisdiction of such Covered Person’s formation; (ii) such Covered Person has full right, power and authority to enter into and perform this Agreement; (iii) the execution and delivery of this Agreement and the performance of the transactions contemplated herein have been duly authorized, and no further proceedings on the part of such Covered Person are necessary to authorize the execution, delivery and performance of this Agreement; and this Agreement has been duly executed by such Covered Person; (iv) the Person signing this Agreement on behalf of such Covered Person has been duly authorized by such Covered Person to do so; (d) this Agreement constitutes the legal, valid and binding obligation of such Covered Person, enforceable against such Covered Person in accordance with its terms (subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles); (e) neither the execution and delivery of this Agreement by such Covered Person nor the consummation of the transactions contemplated herein conflicts with or results in a breach of any of the terms, conditions or provisions of any agreement or instrument to which such Covered Person is a party or by which the assets of such Covered Person are bound (including without limitation the organizational documents of such Covered Person, if such Covered Person is other than a natural person), or constitutes a default under any of the foregoing, or violates any law or regulation; (f) such Covered Person has obtained all authorizations, consents, approvals and clearances of all courts, governmental agencies and authorities, and any other Person, if any (including the consent of the spouse of such Covered Person with respect to the interest of such spouse in the shares of Common Stock of such Covered Person if the consent of such spouse is required; such consent in substantially the form of Exhibit C hereto), required to permit such Covered Person to enter into this Agreement and to consummate the transactions contemplated herein; (g) there are no actions, suits or proceedings pending, or, to the knowledge of such Covered Person, threatened against or affecting such Covered Person or such Covered Person’s assets in any court or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality which, if adversely determined, would impair the ability of such Covered Person to perform this Agreement; (h) the performance of this Agreement will not violate any order, writ, injunction, decree or demand of any court or federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality to which such Covered Person is subject; and (i) no statement, representation or warranty made by such Covered Person in this Agreement, nor any information provided by such Covered Person for inclusion in a registration statement filed by APAM in connection with the IPO contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements, representations or warranties contained herein or information provided therein not misleading. (j) Each Covered Person severally, and not jointly, agrees for himself that the foregoing provision of this Article VII shall be a continuing representation and covenant by him during the period that he shall be a Covered Person, and he shall take all actions as shall from time to time be necessary to cure any breach or violation and to obtain any authorizations, consents, approvals and clearances in order that such representations shall be true and correct during that period.
Appears in 3 contracts
Sources: Stockholders Agreement (Artisan Partners Asset Management Inc.), Stockholders Agreement (Artisan Partners Asset Management Inc.), Stockholders Agreement (Artisan Partners Asset Management Inc.)
Representations and Warranties and Covenants. 3.1 Each Covered Person severally of the parties hereto represents and warrants or agrees, as applicable, for himself to the other parties that:
(a) Such Covered Person such party has (and, with respect all requisite corporate or other authority and power necessary to shares of Common Stock to be acquired, will have) good, valid execute and marketable title to the shares of Common Stock subject to the transfer restrictions in Section 6.1, if applicable, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind, other than pursuant to deliver this Agreement, an agreement with APAM by which such Covered Person is bound Agreement and to which consummate the shares of Common Stock are subject or as permitted by the policies of APAM in effect from time to timetransactions contemplated hereby;
(b) Such Covered Person has (and, with respect to shares of Common Stock to be acquired, will have) the right to vote pursuant to Section 2.1 of this Agreement all shares of Common Stock of which the Covered Person is the Sole Beneficial Owner; and
(c) If the Covered Person is not a natural person:
(i) such Covered Person is duly organized and validly existing in good standing under the laws of the jurisdiction of such Covered Person’s formation;
(ii) such Covered Person has full right, power and authority to enter into and perform this Agreement;
(iii) the execution and delivery of this Agreement and the performance consummation of the transactions contemplated herein hereby have been duly authorized, and validly authorized by all required corporate or other action on the part of such party and no further other proceedings on the part of such Covered Person party are necessary to authorize the execution, delivery and performance of this Agreement; and this Agreement has been duly executed by such Covered Person;
(iv) the Person signing this Agreement on behalf of such Covered Person has been duly authorized by such Covered Person to do so;
(d) this Agreement constitutes the legal, valid and binding obligation of such Covered Person, enforceable against such Covered Person in accordance with its terms (subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles);
(e) neither the execution and delivery of this Agreement by such Covered Person nor the consummation of or to consummate the transactions contemplated herein conflicts hereby;
(c) this Agreement has been duly and validly executed and delivered by such party and constitutes the valid and binding obligation of such party enforceable against such party in accordance with or results its terms; and
(d) this Agreement will not result in a breach violation of any of the terms, conditions terms or provisions of any agreement or instrument agreements to which such Covered Person person is a party or by which such party may otherwise be bound or of any law, rule, license, regulation, judgment, order or decree governing or affecting such party.
3.2 Each Member jointly represents and warrants that as of immediately prior to the assets of such Covered Person are bound (including without limitation the organizational documents of such Covered Person, if such Covered Person is other than a natural person), or constitutes a default under any closing of the foregoing, or violates any law or regulation;
W.B. & Co. Transaction (fa) such Covered Person has obtained all authorizations, consents, approvals the Raging Capital Group and clearances the Raging Capital Designees Beneficially Own an aggregate of all courts, governmental agencies and authorities, and any other Person, if any (including the consent of the spouse of such Covered Person with respect to the interest of such spouse in the i) 4,757,663 shares of Common Stock (excluding shares of such Covered Person if Common Stock underlying New Convertible Notes Beneficially Owned by the consent of such spouse is required; such consent in substantially the form of Exhibit C heretoRaging Capital Group), required to permit (ii) $27,500,000 principal amount of Senior Notes and (iii) $2,940,000 principal amount of New Convertible Notes, (b) except for such Covered Person to enter into this Agreement ownership, no member of the Raging Capital Group, individually or in the aggregate with all other members of the Raging Capital Group and to consummate its Affiliates, nor the transactions contemplated herein;
(g) there are no actions, suits or proceedings pending, or, to the knowledge Raging Capital Designees have any other Beneficial Ownership of such Covered Person, threatened against or affecting such Covered Person or such Covered Person’s assets in any court or before or by any federal, state, municipal Common Stock or other governmental department, commission, board, bureau, agency debt or instrumentality which, if adversely determined, would impair equity securities of the ability of such Covered Person to perform this Agreement;
Company and (hc) the performance Raging Capital Group, collectively with its Affiliates, and the Raging Capital Designees have an aggregate Net Long Position of this Agreement will not violate 4,757,663 shares of Common Stock (excluding shares of Common Stock underlying New Convertible Notes Beneficially Owned by the Raging Capital Group).
3.3 During the Standstill Period, neither the Company and its officers, directors or Affiliates, on the one hand, nor any orderof the Members and their respective officers, writdirectors or Affiliates or the Raging Capital Designees or their Affiliates, injunctionon the other hand, decree shall directly or demand of indirectly make or issue or cause to be made or issued any court disclosure, announcement, or federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality to which such Covered Person is subject; and
statement (including (i) no statementthe filing of any document or report with the SEC or any other governmental agency unless required by law or the rules of any securities exchange on which the Common Stock is listed or traded, representation and (ii) any disclosure to any journalist, member of the media, securities analyst, or warranty made by creditor or equity holder of the Company) concerning the other party or any of its respective past, present or future directors, director nominees, officers, members, employees, advisors or other Affiliates, which disparages such Covered Person other party or any of such other party’s respective past, present, or future directors, director nominees, officers, members, employees, advisors or other Affiliates. The restrictions in this AgreementSection 3.3 shall not apply in any compelled testimony or production of information, nor either by legal process, subpoena or as part of a response to a request for information from any governmental authority with jurisdiction over the party from whom information provided by is sought to the extent legally required; provided, that the recipient of such Covered Person for inclusion in a registration statement filed by APAM legal process, subpoena, or request shall promptly notify the other parties hereto of the receipt of such legal process, subpoena or request so that such other parties may seek an appropriate protective order or other remedy and the recipient shall reasonably cooperate in connection with the IPO contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements, representations or warranties contained herein or information provided therein not misleadingtherewith.
(j) Each Covered Person severally, and not jointly, agrees for himself that the foregoing provision of this Article VII shall be a continuing representation and covenant by him during the period that he shall be a Covered Person, and he shall take all actions as shall from time to time be necessary to cure any breach or violation and to obtain any authorizations, consents, approvals and clearances in order that such representations shall be true and correct during that period.
Appears in 3 contracts
Sources: Settlement Agreement (Raging Capital Management, LLC), Stock Purchase Agreement (Wb & Co), Settlement Agreement (Castle a M & Co)
Representations and Warranties and Covenants. 3.1 Each Covered Person severally of the parties hereto represents and warrants or agrees, as applicable, for himself to the other parties that:
(a) Such Covered Person such party has (and, with respect all requisite corporate or other authority and power necessary to shares of Common Stock to be acquired, will have) good, valid execute and marketable title to the shares of Common Stock subject to the transfer restrictions in Section 6.1, if applicable, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind, other than pursuant to deliver this Agreement, an agreement with APAM by which such Covered Person is bound Agreement and to which consummate the shares of Common Stock are subject or as permitted by the policies of APAM in effect from time to timetransactions contemplated hereby;
(b) Such Covered Person has (and, with respect to shares of Common Stock to be acquired, will have) the right to vote pursuant to Section 2.1 of this Agreement all shares of Common Stock of which the Covered Person is the Sole Beneficial Owner; and
(c) If the Covered Person is not a natural person:
(i) such Covered Person is duly organized and validly existing in good standing under the laws of the jurisdiction of such Covered Person’s formation;
(ii) such Covered Person has full right, power and authority to enter into and perform this Agreement;
(iii) the execution and delivery of this Agreement and the performance consummation of the transactions contemplated herein hereby have been duly authorized, and validly authorized by all required corporate or other action on the part of such party and no further other proceedings on the part of such Covered Person party are necessary to authorize the execution, delivery and performance of this Agreement; and this Agreement has been duly executed by such Covered Person;
(iv) the Person signing this Agreement on behalf of such Covered Person has been duly authorized by such Covered Person to do so;
(d) this Agreement constitutes the legal, valid and binding obligation of such Covered Person, enforceable against such Covered Person in accordance with its terms (subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles);
(e) neither the execution and delivery of this Agreement by such Covered Person nor the consummation of or to consummate the transactions contemplated herein conflicts hereby;
(c) this Agreement has been duly and validly executed and delivered by such party and constitutes the valid and binding obligation of such party enforceable against such party in accordance with or results its terms; and
(d) this Agreement will not result in a breach violation of any of the terms, conditions terms or provisions of any agreement or instrument agreements to which such Covered Person person is a party or by which such party may otherwise be bound or of any law, rule, license, regulation, judgment, order or decree governing or affecting such party.
3.2 Each Member jointly represents and warrants that, as of the assets date of this Agreement, (a) the Raging Capital Group Beneficially Owns an aggregate of 4,630,795 shares of Common Stock, (b) except for such Covered Person are bound ownership, no member of the Raging Capital Group, individually or in the aggregate with all other members of the Raging Capital Group and its Affiliates has any other Beneficial Ownership of any Common Stock and (including without limitation c) the organizational documents Raging Capital Group, collectively with its Affiliates, has a Net Long Position of such Covered Person4,630,795 shares of Common Stock. The Raging Capital Group shall notify the Company within three business days if its Net Long Position falls below the ownership threshold set forth in Section 2.9.
3.3 During the Standstill Period, if such Covered Person is other than a natural person)neither the Company and its officers, directors or constitutes a default under Affiliates, on the one hand, nor any of the foregoingMembers and their respective officers, directors or Affiliates or the Raging Capital Nominees or their Affiliates, on the other hand, shall directly or indirectly make or issue or cause to be made or issued any disclosure, announcement, or violates any law or regulation;
(f) such Covered Person has obtained all authorizations, consents, approvals and clearances of all courts, governmental agencies and authorities, and any other Person, if any statement (including the consent filing of any document or report with the SEC or any other governmental agency unless required by law or the rules of any securities exchange on which the Common Stock is listed or traded and any disclosure to any journalist, member of the spouse media, or securities analyst) concerning the other party or any of its respective past, present or future directors, director nominees, officers, members, employees, advisors or other Affiliates, which disparages such other party or any of such Covered Person other party’s respective past, present, or future directors, director nominees, officers, members, employees, advisors or other Affiliates. The restrictions in this Section 3.3 shall not apply in any compelled testimony or production of information, either by legal process, subpoena or as part of a response to a request for information from any governmental authority with respect jurisdiction over the party from whom information is sought to the interest extent legally required; provided, that the recipient of such spouse in legal process, subpoena, or request shall promptly notify the shares other parties hereto of Common Stock the receipt of such Covered Person if the consent of legal process, subpoena or request so that such spouse is required; such consent in substantially the form of Exhibit C hereto), required to permit such Covered Person to enter into this Agreement and to consummate the transactions contemplated herein;
(g) there are no actions, suits or proceedings pending, or, to the knowledge of such Covered Person, threatened against or affecting such Covered Person or such Covered Person’s assets in any court or before or by any federal, state, municipal other parties may seek an appropriate protective order or other governmental department, commission, board, bureau, agency or instrumentality which, if adversely determined, would impair remedy and the ability recipient shall reasonably cooperate in connection therewith.
3.4 From and after the date of such Covered Person to perform this Agreement;
(h) the performance of this Agreement will not violate any order, writ, injunction, decree or demand of any court or federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality to which such Covered Person is subject; and
(i) no statement, representation or warranty made by such Covered Person in this Agreement, nor any information provided by such Covered Person for inclusion in a registration statement filed by APAM in connection with the IPO contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements, representations or warranties contained herein or information provided therein not misleading.
(j) Each Covered Person severally, and not jointly, agrees for himself that the foregoing provision of this Article VII each Raging Capital Nominee shall be (a) compensated for his service as a continuing representation director and covenant by him during will be reimbursed for his expenses on the period that he shall be a Covered Person, same basis as all other non-employee directors of the Company; (b) granted equity-based compensation and he shall take other benefits on the same basis as all actions other non-employee directors of the Company; and (c) entitled to the same rights of indemnification and directors’ and officers’ liability insurance coverage as shall the other non-employee directors of the Company as such rights may exist from time to time be necessary time.
3.5 The Company represents and warrants that the Bylaws and the Company policies and guidelines provided to cure any breach or violation and the Raging Capital Nominees pursuant to obtain any authorizations, consents, approvals and clearances in order that such representations shall be Section 2.4 are true and correct during that periodand have not been amended or modified.
Appears in 2 contracts
Sources: Settlement Agreement (Castle a M & Co), Settlement Agreement (Raging Capital Management, LLC)
Representations and Warranties and Covenants. 3.1 Each Covered Person severally of the parties hereto represents and warrants or agrees, as applicable, for himself to the other parties that:
(a) Such Covered Person such party has (and, with respect all requisite corporate or other authority and power necessary to shares of Common Stock to be acquired, will have) good, valid execute and marketable title to the shares of Common Stock subject to the transfer restrictions in Section 6.1, if applicable, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind, other than pursuant to deliver this Agreement, an agreement with APAM by which such Covered Person is bound Agreement and to which consummate the shares of Common Stock are subject or as permitted by the policies of APAM in effect from time to timetransactions contemplated hereby;
(b) Such Covered Person has (and, with respect to shares of Common Stock to be acquired, will have) the right to vote pursuant to Section 2.1 of this Agreement all shares of Common Stock of which the Covered Person is the Sole Beneficial Owner; and
(c) If the Covered Person is not a natural person:
(i) such Covered Person is duly organized and validly existing in good standing under the laws of the jurisdiction of such Covered Person’s formation;
(ii) such Covered Person has full right, power and authority to enter into and perform this Agreement;
(iii) the execution and delivery of this Agreement and the performance consummation of the transactions contemplated herein hereby have been duly authorized, and validly authorized by all required corporate or other action on the part of such party and no further other proceedings on the part of such Covered Person party are necessary to authorize the execution, delivery and performance of this Agreement; and this Agreement has been duly executed by such Covered Person;
(iv) the Person signing this Agreement on behalf of such Covered Person has been duly authorized by such Covered Person to do so;
(d) this Agreement constitutes the legal, valid and binding obligation of such Covered Person, enforceable against such Covered Person in accordance with its terms (subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles);
(e) neither the execution and delivery of this Agreement by such Covered Person nor the consummation of or to consummate the transactions contemplated herein conflicts hereby;
(c) this Agreement has been duly and validly executed and delivered by such party and constitutes the valid and binding obligation of such party enforceable against such party in accordance with or results its terms; and
(d) this Agreement will not result in a breach violation of any of the terms, conditions terms or provisions of any agreement or instrument agreements to which such Covered Person person is a party or by which such party may otherwise be bound or of any law, rule, license, regulation, judgment, order or decree governing or affecting such party.
3.2 Each member of the assets Sarissa Group jointly represents and warrants that, as of the date of this Agreement, (a) the Sarissa Group Beneficially Owns an aggregate of 12,000,000 shares of Voting Stock of the Company, (b) except for such Covered Person are bound ownership, no member of the Sarissa Group, individually or in the aggregate with all other members of the Sarissa Group and its Affiliates has any other Beneficial Ownership of any Voting Stock and (including without limitation c) the organizational documents Sarissa Group, collectively with its Affiliates, has a Net Long Position of such Covered Person12,000,000 shares of Voting Stock.
3.3 The Company represents that since January 1, if such Covered Person is 2013, there have been: (i) no amendments to the Company’s bylaws other than a natural person)as publicly disclosed; and (ii) no material amendments to compensatory arrangements applicable to named executive officers other than as publicly disclosed.
3.4 During the Standstill Period, as long as the Sarissa Group has not intentionally and materially breached this Agreement and failed to cure such breach within five business days of written notice from the Company specifying any such breach, the Company shall not make or issue, or constitutes a default under cause to be made or issued, any of the foregoingpublic disclosure, statement or violates any law or regulation;
(f) such Covered Person has obtained all authorizations, consents, approvals and clearances of all courts, governmental agencies and authorities, and any other Person, if any announcement (including the consent filing or furnishing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the spouse media or securities analyst) negatively commenting upon any member of such Covered Person with respect the Sarissa Group or its principals or employees, including the Sarissa Group’s corporate strategy, business, corporate activities, governing body or management (and including making any statements critical of the Sarissa Group’s business, strategic direction, capital structure or compensation practices).
3.5 From and after the date of this Agreement, the Sarissa Designee shall be covered by the same indemnification and insurance provisions and coverage as are applicable to the interest individuals that are currently directors of the Company.
3.6 The Company represents, warrants, covenants and agrees (a) that, for purposes of the Company’s 2005 Executive Compensation Plan, the Sarissa Designee’s appointment to the Board has been endorsed by a majority of the members of the Board (and that such spouse endorsement is not in connection with an actual or threatened proxy contest relating to the shares election of Common Stock directors of such Covered Person if the consent Company) before the date hereof and (b) that, upon his appointment to the Board, the Sarissa Designee shall be deemed to be, or shall constitute, a “Continuing Director” for purposes of such spouse indemnification arrangements with any officers or directors.
3.7 The Company hereby agrees that it shall not, for so long as the Sarissa designee is required; such consent in substantially a member of the form Board (a) adopt any policies applicable to directors that are inconsistent with the provisions of Exhibit C hereto), required to permit such Covered Person to enter into this Agreement and to consummate the transactions contemplated herein;
(g) there extent any such policies are no actions, suits or proceedings pending, or, to inconsistent with the knowledge terms of such Covered Person, threatened against or affecting such Covered Person or such Covered Person’s assets in any court or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality which, if adversely determined, would impair the ability of such Covered Person to perform this Agreement;
(h) , the performance terms of this Agreement will not violate any order, writ, injunction, decree shall govern or demand (b) amend the provisions of any court or federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality the Company’s bylaws governing the timing of nominations of persons for election to which such Covered Person is subject; and
(i) no statement, representation or warranty made the Board and the proposal of business to be considered by such Covered Person in this Agreement, nor any information provided by such Covered Person for inclusion in a registration statement filed by APAM in connection with the IPO contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements, representations or warranties contained herein or information provided therein not misleadingCompany’s stockholders.
(j) Each Covered Person severally, and not jointly, agrees for himself that the foregoing provision of this Article VII shall be a continuing representation and covenant by him during the period that he shall be a Covered Person, and he shall take all actions as shall from time to time be necessary to cure any breach or violation and to obtain any authorizations, consents, approvals and clearances in order that such representations shall be true and correct during that period.
Appears in 2 contracts
Sources: Nomination and Standstill Agreement (Sarissa Capital Management LP), Nomination and Standstill Agreement (Ariad Pharmaceuticals Inc)
Representations and Warranties and Covenants. 3.1 Each Covered Person severally of the parties hereto represents and warrants or agrees, as applicable, for himself to the other parties that:
(a) Such Covered Person such party has (and, with respect all requisite corporate or other authority and power necessary to shares of Common Stock to be acquired, will have) good, valid execute and marketable title to the shares of Common Stock subject to the transfer restrictions in Section 6.1, if applicable, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind, other than pursuant to deliver this Agreement, an agreement with APAM by which such Covered Person is bound Agreement and to which consummate the shares of Common Stock are subject or as permitted by the policies of APAM in effect from time to timetransactions contemplated hereby;
(b) Such Covered Person has (and, with respect to shares of Common Stock to be acquired, will have) the right to vote pursuant to Section 2.1 of this Agreement all shares of Common Stock of which the Covered Person is the Sole Beneficial Owner; and
(c) If the Covered Person is not a natural person:
(i) such Covered Person is duly organized and validly existing in good standing under the laws of the jurisdiction of such Covered Person’s formation;
(ii) such Covered Person has full right, power and authority to enter into and perform this Agreement;
(iii) the execution and delivery of this Agreement and the performance consummation of the transactions contemplated herein hereby have been duly authorized, and validly authorized by all required corporate or other action on the part of such party and no further other proceedings on the part of such Covered Person party are necessary to authorize the execution, delivery and performance of this Agreement; and this Agreement has been duly executed by such Covered Person;
(iv) the Person signing this Agreement on behalf of such Covered Person has been duly authorized by such Covered Person to do so;
(d) this Agreement constitutes the legal, valid and binding obligation of such Covered Person, enforceable against such Covered Person in accordance with its terms (subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles);
(e) neither the execution and delivery of this Agreement by such Covered Person nor the consummation of or to consummate the transactions contemplated herein conflicts hereby;
(c) this Agreement has been duly and validly executed and delivered by such party and constitutes the valid and binding obligation of such party enforceable against such party in accordance with or results its terms; and
(d) this Agreement will not result in a breach violation of any of the terms, conditions terms or provisions of any agreement or instrument agreements to which such Covered Person person is a party or by which the assets such party may otherwise be bound or of any law, rule, license, regulation, judgment, order or decree governing or affecting such Covered Person are bound (including without limitation the organizational documents of such Covered Personparty.
3.2 Each Member jointly represents and warrants that, if such Covered Person is other than a natural person), or constitutes a default under any as of the foregoingdate of this Agreement, or violates any law or regulation;
(fa) such Covered Person has obtained all authorizations, consents, approvals the Raging Capital Group and clearances the Raging Capital Directors Beneficially Own an aggregate of all courts, governmental agencies and authorities, and any other Person, if any (including the consent of the spouse of such Covered Person with respect to the interest of such spouse in the i) 4,687,017 shares of Common Stock (excluding shares of such Covered Person if Common Stock underlying New Convertible Notes Beneficially Owned by the consent of such spouse is required; such consent in substantially the form of Exhibit C heretoRaging Capital Group), required to permit (ii) $27,500,000 principal amount of Senior Notes and (iii) $2,940,000 principal amount of New Convertible Notes, (b) except for such Covered Person to enter into this Agreement ownership, no member of the Raging Capital Group, individually or in the aggregate with all other members of the Raging Capital Group and to consummate its Affiliates, nor the transactions contemplated herein;
(g) there are no actions, suits or proceedings pending, or, to the knowledge Raging Capital Directors have any other Beneficial Ownership of such Covered Person, threatened against or affecting such Covered Person or such Covered Person’s assets in any court or before or by any federal, state, municipal Common Stock or other governmental department, commission, board, bureau, agency debt or instrumentality which, if adversely determined, would impair equity securities of the ability of such Covered Person to perform this Agreement;
Company and (hc) the performance Raging Capital Group, collectively with its Affiliates, and the Raging Capital Directors have an aggregate Net Long Position of this Agreement will not violate any order4,687,017 shares of Common Stock (excluding shares of Common Stock underlying New Convertible Notes Beneficially Owned by the Raging Capital Group).
3.3 During the Standstill Period, writneither the Company and its officers, injunctiondirectors or Affiliates, decree or demand of any court or federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality to which such Covered Person is subject; and
(i) no statement, representation or warranty made by such Covered Person in this Agreementon the one hand, nor any of the Members and their respective officers, directors or Affiliates or the Raging Capital Directors, the Raging Capital Nominee or their Affiliates, on the other hand, shall directly or indirectly make or issue or cause to be made or issued any disclosure, announcement, or statement (including the filing of any document or report with the SEC or any other governmental agency unless required by law or the rules of any securities exchange on which the Common Stock is listed or traded and any disclosure to any journalist, member of the media, or securities analyst) concerning the other party or any of its respective past, present or future directors, director nominees, officers, members, employees, advisors or other Affiliates, which disparages such other party or any of such other party’s respective past, present, or future directors, director nominees, officers, members, employees, advisors or other Affiliates. The restrictions in this Section 3.3 shall not apply in any compelled testimony or production of information, either by legal process, subpoena or as part of a response to a request for information provided by from any governmental authority with jurisdiction over the party from whom information is sought to the extent legally required; provided, that the recipient of such Covered Person for inclusion in a registration statement filed by APAM legal process, subpoena, or request shall promptly notify the other parties hereto of the receipt of such legal process, subpoena or request so that such other parties may seek an appropriate protective order or other remedy and the recipient shall reasonably cooperate in connection with the IPO contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements, representations or warranties contained herein or information provided therein not misleadingtherewith.
(j) Each Covered Person severally3.4 From and after election to the Board, and not jointly, agrees for himself that the foregoing provision of this Article VII Raging Capital Nominee shall be (a) compensated for his service as a continuing representation director and covenant by him during will be reimbursed for his expenses on the period that he shall be a Covered Person, same basis as all other non-employee directors of the Company; (b) granted equity-based compensation and he shall take other benefits on the same basis as all actions other non-employee directors of the Company; and (c) entitled to the same rights of indemnification and directors’ and officers’ liability insurance coverage as shall the other non-employee directors of the Company as such rights may exist from time to time be necessary to cure any breach or violation and to obtain any authorizations, consents, approvals and clearances in order that such representations shall be true and correct during that periodtime.
Appears in 2 contracts
Sources: Settlement Agreement (Raging Capital Management, LLC), Settlement Agreement (Castle a M & Co)
Representations and Warranties and Covenants. 3.1 Each Covered Person severally of the parties hereto represents and warrants or agrees, as applicable, for himself to the other parties that:
(a) Such Covered Person such party has (and, with respect all requisite corporate or other authority and power necessary to shares of Common Stock to be acquired, will have) good, valid execute and marketable title to the shares of Common Stock subject to the transfer restrictions in Section 6.1, if applicable, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind, other than pursuant to deliver this Agreement, an agreement with APAM by which such Covered Person is bound Agreement and to which consummate the shares of Common Stock are subject or as permitted by the policies of APAM in effect from time to timetransactions contemplated hereby;
(b) Such Covered Person has (and, with respect to shares of Common Stock to be acquired, will have) the right to vote pursuant to Section 2.1 of this Agreement all shares of Common Stock of which the Covered Person is the Sole Beneficial Owner; and
(c) If the Covered Person is not a natural person:
(i) such Covered Person is duly organized and validly existing in good standing under the laws of the jurisdiction of such Covered Person’s formation;
(ii) such Covered Person has full right, power and authority to enter into and perform this Agreement;
(iii) the execution and delivery of this Agreement and the performance consummation of the transactions contemplated herein hereby have been duly authorized, and validly authorized by all required corporate or other action on the part of such party and no further other proceedings on the part of such Covered Person party are necessary to authorize the execution, delivery and performance of this Agreement; and this Agreement has been duly executed by such Covered Person;
(iv) the Person signing this Agreement on behalf of such Covered Person has been duly authorized by such Covered Person to do so;
(d) this Agreement constitutes the legal, valid and binding obligation of such Covered Person, enforceable against such Covered Person in accordance with its terms (subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles);
(e) neither the execution and delivery of this Agreement by such Covered Person nor the consummation of or to consummate the transactions contemplated herein conflicts hereby;
(c) this Agreement has been duly and validly executed and delivered by such party and constitutes the valid and binding obligation of such party enforceable against such party in accordance with or results its terms; and
(d) this Agreement will not result in a breach violation of any of the terms, conditions terms or provisions of any agreement or instrument agreements to which such Covered Person person is a party or by which such party may otherwise be bound or of any law, rule, license, regulation, judgment, order or decree governing or affecting such party.
3.2 Each member of the assets Sarissa Group jointly represents and warrants that, as of the date of this Agreement, (a) the Sarissa Group Beneficially Owns an aggregate of 1,637,455 shares of Voting Stock of the Company, (b) except for such Covered Person are bound ownership, no member of the Sarissa Group, individually or in the aggregate with all other members of the Sarissa Group and its Affiliates has any other Beneficial Ownership of any Voting Stock and (including without limitation c) the organizational documents Sarissa Group, collectively with its Affiliates, has a Net Long Position of such Covered Person1,637,455 shares of Voting Stock. Effective upon execution of this Agreement, if such Covered Person is other than a natural person)the Sarissa Group hereby irrevocably (a) withdraws its Stockholders’ Notice of Stockholder Business and Nominations at the 2015 Annual Meeting of Stockholders of Aegerion Pharmaceuticals, Inc., dated March 27, 2015, and irrevocably terminates the Nominee Agreement with the New Nominee referred to therein, and (b) agrees it will not (i) nominate any person for election at the 2015 Annual Meeting, (ii) submit any proposal for consideration at, or constitutes a default under bring any of other business before, the foregoing2015 Annual Meeting, or violates (iii) initiate, encourage or participate in any law “withhold” or regulation;
(f) such Covered Person has obtained all authorizations, consents, approvals and clearances of all courts, governmental agencies and authorities, and any other Person, if any (including the consent of the spouse of such Covered Person similar campaign with respect to the interest 2015 Annual Meeting, directly or indirectly, and will not permit any of its Affiliates to do any of the items in this Section 3.2. The Sarissa Group will not publicly or privately encourage or support any other stockholder to take any of the actions described in this Section 3.2 in respect of the 2015 Annual Meeting.
3.3 The Company represents that since the bylaw amendments adopted June 26, 2013 and through the date hereof, there have been: (i) no amendments to the Company’s bylaws other than as publicly disclosed prior to the date hereof; (ii) no material amendments to compensatory arrangements applicable to a named executive officer other than as publicly disclosed prior to the date hereof; and (iii) no notices from stockholders of the Company (other than the Sarissa Group) pursuant to Section 2.1 of the Company’s bylaws received with respect to the 2015 Annual Meeting.
3.4 During the Standstill Period, as long as the Sarissa Group has not intentionally and materially breached this Agreement and failed to cure such spouse breach within five Business Days of written notice from the Company specifying any such breach, the Company shall not make or issue, or cause to be made or issued, any public disclosure, statement or announcement (including the filing or furnishing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) negatively commenting upon any member of the Sarissa Group or its principals or employees, including the Sarissa Group’s corporate strategy, business, corporate activities, governing body or management (and including making any statements critical of the Sarissa Group’s business, strategic direction, capital structure or compensation practices) or the service of its principals on the Board (if any such principals serve on the Board) or making any statement indicating the Sarissa Group’s, the New Nominee’s or the Additional Designee’s position on a matter regarding the Company or its officers or directors, in each case without the shares of Common Stock of such Covered Person if the prior written consent of the Sarissa Group; provided, that (a) the Company may correct any statement made by or on behalf of the Sarissa Group that references or relates to the Company and may comment or respond to any Sarissa Statements, and (b) the foregoing shall not, for the avoidance of doubt, prohibit the Company from making statements regarding the functioning of the Board as a whole or from making statements regarding Board action so long as, in each case, such spouse is required; such consent in statements are not specific to the Sarissa Group or the New Nominee or the Additional Designee.
3.5 The New Nominee and the Additional Designee (to the extent appointed to the Board) shall be covered by the same or substantially similar indemnification and insurance provisions and coverage as are applicable to the form other individuals that are then directors of Exhibit C hereto), required to permit such Covered Person the Company and be offered the right to enter into the same or substantially similar indemnification agreements, if any, generally offered to other members of the Board.
3.6 The Company represents, warrants, covenants and agrees that, to the extent any contract, plan or arrangement of the Company or any Subsidiary thereof (including indemnification agreements or provisions of the certificate of incorporate or bylaws of the Company or any Subsidiary thereof) has “continuing director” or similar concepts, the Board has resolved, at or prior to execution of this Agreement, that the New Nominee and Additional Designee shall, to the extent permitted by any such arrangements, be deemed a “continuing director” (or similar term) for all purposes thereof and the New Nominee and Additional Designee shall be deemed to have been endorsed and approved by a majority of the members of the Board. The Company hereby agrees that it shall not, for so long as the New Nominee or the Additional Designee is a member of the Board, (a) adopt any policies applicable to directors that are inconsistent with the material provisions of this Agreement and to consummate the transactions contemplated herein;
extent any such policies are inconsistent with the material terms of this Agreement, the terms of this Agreement shall govern or (gb) there are no actions, suits or proceedings pending, or, amend the provisions of the Company’s bylaws governing the timing of nominations of persons for election to the knowledge Board and the proposal of such Covered Personbusiness to be considered by the Company’s stockholders, threatened against in each case without the Sarissa Group’s prior written consent (which consent shall be granted or affecting such Covered Person withheld in the sole discretion of the Sarissa Group as promptly as reasonably practicable following a request therefor).
3.7 So long as the New Nominee or such Covered Person’s assets in the Additional Designee is a member of the Board, the Sarissa Group represents, warrants, covenants and agrees that it has not prior to the date hereof, and, unless disclosed to the Company, will not after the date hereof, enter into any court or before or by any federalmonetary, state, municipal pecuniary or other governmental department, commission, board, bureau, agency or instrumentality which, if adversely determined, would impair arrangements with the ability of such Covered Person New Nominee that entitles him to perform this Agreement;
(h) a payment from the Sarissa Group based on the performance of this Agreement will not violate any orderthe Company, writ, injunction, decree the stock of the Company or demand of any court the Sarissa Group’s investment therein or federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality to which such Covered Person that is subject; and
(i) no statement, representation or warranty made by such Covered Person in this Agreement, nor any information provided by such Covered Person for inclusion in a registration statement filed by APAM in connection being entered into with the IPO contains or will contain any untrue statement New Nominee for the purpose of influencing the New Nominee’s decisions in his capacity as a material fact or omits or will omit to state a material fact necessary in order to make member of the statements, representations or warranties contained herein or information provided therein not misleadingBoard.
(j) Each Covered Person severally, and not jointly, agrees for himself that the foregoing provision of this Article VII shall be a continuing representation and covenant by him during the period that he shall be a Covered Person, and he shall take all actions as shall from time to time be necessary to cure any breach or violation and to obtain any authorizations, consents, approvals and clearances in order that such representations shall be true and correct during that period.
Appears in 1 contract
Sources: Nomination and Standstill Agreement (Sarissa Capital Management LP)
Representations and Warranties and Covenants. 3.1 Each Covered Person severally of the parties hereto represents and warrants or agrees, as applicable, for himself to the other parties that:
(a) Such Covered Person such party has (and, with respect all requisite corporate or other authority and power necessary to shares of Common Stock to be acquired, will have) good, valid execute and marketable title to the shares of Common Stock subject to the transfer restrictions in Section 6.1, if applicable, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind, other than pursuant to deliver this Agreement, an agreement with APAM by which such Covered Person is bound Agreement and to which consummate the shares of Common Stock are subject or as permitted by the policies of APAM in effect from time to timetransactions contemplated hereby;
(b) Such Covered Person has (and, with respect to shares of Common Stock to be acquired, will have) the right to vote pursuant to Section 2.1 of this Agreement all shares of Common Stock of which the Covered Person is the Sole Beneficial Owner; and
(c) If the Covered Person is not a natural person:
(i) such Covered Person is duly organized and validly existing in good standing under the laws of the jurisdiction of such Covered Person’s formation;
(ii) such Covered Person has full right, power and authority to enter into and perform this Agreement;
(iii) the execution and delivery of this Agreement and the performance consummation of the transactions contemplated herein hereby have been duly authorized, and validly authorized by all required corporate or other action on the part of such party and no further other proceedings on the part of such Covered Person party are necessary to authorize the execution, delivery and performance of this Agreement; and this Agreement has been duly executed by such Covered Person;
(iv) the Person signing this Agreement on behalf of such Covered Person has been duly authorized by such Covered Person to do so;
(d) this Agreement constitutes the legal, valid and binding obligation of such Covered Person, enforceable against such Covered Person in accordance with its terms (subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles);
(e) neither the execution and delivery of this Agreement by such Covered Person nor the consummation of or to consummate the transactions contemplated herein conflicts hereby;
(c) this Agreement has been duly and validly executed and delivered by such party and constitutes the valid and binding obligation of such party enforceable against such party in accordance with or results its terms; and
(d) this Agreement will not result in a breach violation of any of the terms, conditions terms or provisions of any agreement or instrument agreements to which such Covered Person person is a party or by which such party may otherwise be bound or of any law, rule, license, regulation, judgment, order or decree governing or affecting such party.
3.2 Each member of the assets Sarissa Group jointly represents and warrants that, as of the date of this Agreement, (a) the Sarissa Group Beneficially Owns an aggregate of 1,637,455 shares of Voting Stock of the Company, (b) except for such Covered Person are bound ownership, no member of the Sarissa Group, individually or in the aggregate with all other members of the Sarissa Group and its Affiliates has any other Beneficial Ownership of any Voting Stock and (including without limitation c) the organizational documents Sarissa Group, collectively with its Affiliates, has a Net Long Position of such Covered Person1,637,455 shares of Voting Stock. Effective upon execution of this Agreement, if such Covered Person is other than a natural person)the Sarissa Group hereby irrevocably (a) withdraws its Stockholders’ Notice of Stockholder Business and Nominations at the 2015 Annual Meeting of Stockholders of Aegerion Pharmaceuticals, Inc., dated March 27, 2015, and irrevocably terminates the Nominee Agreement with the New Nominee referred to therein, and (b) agrees it will not (i) nominate any person for election at the 2015 Annual Meeting, (ii) submit any proposal for consideration at, or constitutes a default under bring any of other business before, the foregoing2015 Annual Meeting, or violates (iii) initiate, encourage or participate in any law “withhold” or regulation;
(f) such Covered Person has obtained all authorizations, consents, approvals and clearances of all courts, governmental agencies and authorities, and any other Person, if any (including the consent of the spouse of such Covered Person similar campaign with respect to the interest 2015 Annual Meeting, directly or indirectly, and will not permit any of its Affiliates to do any of the items in this Section 3.2. The Sarissa Group will not publicly or privately encourage or support any other stockholder to take any of the actions described in this Section 3.2 in respect of the 2015 Annual Meeting.
3.3 The Company represents that since the bylaw amendments adopted June 26, 2013 and through the date hereof, there have been: (i) no amendments to the Company’s bylaws other than as publicly disclosed prior to the date hereof; (ii) no material amendments to compensatory arrangements applicable to a named executive officer other than as publicly disclosed prior to the date hereof; and (iii) no notices from stockholders of the Company (other than the Sarissa Group) pursuant to Section 2.1 of the Company’s bylaws received with respect to the 2015 Annual Meeting.
3.4 During the Standstill Period, as long as the Sarissa Group has not intentionally and materially breached this Agreement and failed to cure such spouse breach within five Business Days of written notice from the Company specifying any such breach, the Company shall not make or issue, or cause to be made or issued, any public disclosure, statement or announcement (including the filing or furnishing of any document or report with the SEC or any other governmental agency or any disclosure to any journalist, member of the media or securities analyst) negatively commenting upon any member of the Sarissa Group or its principals or employees, including the Sarissa Group’s corporate strategy, business, corporate activities, governing body or management (and including making any statements critical of the Sarissa Group’s business, strategic direction, capital structure or compensation practices) or the service of its principals on the Board (if any such principals serve on the Board) or making any statement indicating the Sarissa Group’s, the New Nominee’s or the Additional Designee’s position on a matter regarding the Company or its officers or directors, in each case without the shares of Common Stock of such Covered Person if the prior written consent of the Sarissa Group; provided, that (a) the Company may correct any statement made by or on behalf of the Sarissa Group that references or relates to the Company and may comment or respond to any Sarissa Statements, and (b) the foregoing shall not, for the avoidance of doubt, prohibit the Company from making statements regarding the functioning of the Board as a whole or from making statements regarding Board action so long as, in each case, such spouse is required; such consent in statements are not specific to the Sarissa Group or the New Nominee or the Additional Designee.
3.5 The New Nominee and the Additional Designee (to the extent appointed to the Board) shall be covered by the same or substantially similar indemnification and insurance provisions and coverage as are applicable to the form other individuals that are then directors of Exhibit C hereto), required to permit such Covered Person the Company and be offered the right to enter into the same or substantially similar indemnification agreements, if any, generally offered to other members of the Board.
3.6 The Company represents, warrants, covenants and agrees that, to the extent any contract, plan or arrangement of the Company or any Subsidiary thereof (including indemnification agreements or provisions of the certificate of incorporate or bylaws of the Company or any Subsidiary thereof) has “continuing director” or similar concepts, the Board has resolved, at or prior to execution of this Agreement, that the New Nominee and Additional Designee shall, to the extent permitted by any such arrangements, be deemed a “continuing director” (or similar term) for all purposes thereof and the New Nominee and Additional Designee shall be deemed to have been endorsed and approved by a majority of the members of the Board. The Company hereby agrees that it shall not, for so long as the New Nominee or the Additional Designee is a member of the Board, (a) adopt any policies applicable to directors that are inconsistent with the material provisions of this Agreement and to consummate the transactions contemplated herein;
(g) there extent any such policies are no actions, suits or proceedings pending, or, to inconsistent with the knowledge material terms of such Covered Person, threatened against or affecting such Covered Person or such Covered Person’s assets in any court or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality which, if adversely determined, would impair the ability of such Covered Person to perform this Agreement;
(h) , the performance terms of this Agreement will not violate any ordershall govern or (b) amend the provisions of the Company’s bylaws governing the timing of nominations of persons for election to the Board and the proposal of business to be considered by the Company’s stockholders, writ, injunction, decree or demand of any court or federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality to in each case without the Sarissa Group’s prior written consent (which such Covered Person is subject; and
(i) no statement, representation or warranty made by such Covered Person in this Agreement, nor any information provided by such Covered Person for inclusion in a registration statement filed by APAM in connection with the IPO contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements, representations or warranties contained herein or information provided therein not misleading.
(j) Each Covered Person severally, and not jointly, agrees for himself that the foregoing provision of this Article VII consent shall be granted or withheld in the sole discretion of the Sarissa Group as promptly as reasonably practicable following a continuing representation and covenant by him during the period that he shall be a Covered Person, and he shall take all actions as shall from time to time be necessary to cure any breach or violation and to obtain any authorizations, consents, approvals and clearances in order that such representations shall be true and correct during that periodrequest therefor).
Appears in 1 contract
Sources: Nomination and Standstill Agreement (Aegerion Pharmaceuticals, Inc.)
Representations and Warranties and Covenants. 3.1 Each Covered Person severally of the parties hereto represents and warrants or agrees, as applicable, for himself to the other parties that:
(a) Such Covered Person such party has (and, with respect all requisite corporate or other authority and power necessary to shares of Common Stock to be acquired, will have) good, valid execute and marketable title to the shares of Common Stock subject to the transfer restrictions in Section 6.1, if applicable, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind, other than pursuant to deliver this Agreement, an agreement with APAM by which such Covered Person is bound Agreement and to which consummate the shares of Common Stock are subject or as permitted by the policies of APAM in effect from time to timetransactions contemplated hereby;
(b) Such Covered Person has (and, with respect to shares of Common Stock to be acquired, will have) the right to vote pursuant to Section 2.1 of this Agreement all shares of Common Stock of which the Covered Person is the Sole Beneficial Owner; and
(c) If the Covered Person is not a natural person:
(i) such Covered Person is duly organized and validly existing in good standing under the laws of the jurisdiction of such Covered Person’s formation;
(ii) such Covered Person has full right, power and authority to enter into and perform this Agreement;
(iii) the execution and delivery of this Agreement and the performance consummation of the transactions contemplated herein hereby have been duly authorized, and validly authorized by all required corporate or other action on the part of such party and no further other proceedings on the part of such Covered Person party are necessary to authorize the execution, delivery and performance of this Agreement; and this Agreement has been duly executed by such Covered Person;
(iv) the Person signing this Agreement on behalf of such Covered Person has been duly authorized by such Covered Person to do so;
(d) this Agreement constitutes the legal, valid and binding obligation of such Covered Person, enforceable against such Covered Person in accordance with its terms (subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles);
(e) neither the execution and delivery of this Agreement by such Covered Person nor the consummation of or to consummate the transactions contemplated herein conflicts hereby;
(c) this Agreement has been duly and validly executed and delivered by such party and constitutes the valid and binding obligation of such party enforceable against such party in accordance with or results its terms; and
(d) this Agreement will not result in a breach violation of any of the terms, conditions terms or provisions of any agreement or instrument agreements to which such Covered Person person is a party or by which such party may otherwise be bound or of any law, rule, license, regulation, judgment, order or decree governing or affecting such party.
3.2 Each member of the assets Icahn Group jointly represents and warrants that, as of the date of this Agreement, (a) the Icahn Group Beneficially Owns an aggregate of 19,353,530 shares of Voting Stock of the Company, (b) except for such Covered Person are bound ownership, no member of the Icahn Group, individually or in the aggregate with all other members of the Icahn Group and its controlled Affiliates, has any other Beneficial Ownership of any Voting Stock and (including without limitation c) the organizational documents Icahn Group, collectively with its controlled Affiliates, has a Net Long Position of such Covered Person19,353,530 shares of Voting Stock.
3.3 The Company represents that since January 1, if such Covered Person is 2015, there have been: (i) no amendments to the Company's bylaws other than a natural person)as publicly disclosed; and (ii) no material amendments to compensatory arrangements applicable to named executive officers other than as publicly disclosed.
3.4 During the Standstill Period, so long as the Icahn Group has not materially breached this Agreement and failed to cure such breach within five business days of written notice from the Company specifying any such breach, the Company shall not make, or constitutes a default under cause to be made, by press release or similar public statement, including to the press or media, or in an SEC filing, any statement or announcement that disparages (as distinct from objective statements reflecting business criticism) any member of the foregoingIcahn Group, the officers or directors of any member of the Icahn Group, or violates any law person who has served as an officer or regulation;director of any member of the Icahn Group in the past.
3.5 From and after the date of this Agreement, the Icahn Designees shall be covered by the same indemnification and insurance provisions and coverage as are applicable to the individuals that are currently directors of the Company.
3.6 During the Standstill Period, so long as the Icahn Group has not materially breached this Agreement and failed to cure such breach within five business days of written notice from the Company specifying any such breach, any Rights Plan adopted by the Company shall (fA) such Covered Person has obtained all authorizations, consents, approvals and clearances not have a triggering "Acquiring Person" ownership threshold below 20% of all courts, governmental agencies and authoritiesthe then-outstanding shares of Common Stock, and any other Person, (B) automatically expire if any (including the consent not ratified by stockholders of the spouse Company within one hundred thirty-five (135) days of taking effect. In addition, during the Standstill Period, so long as the Icahn Group has not materially breached this Agreement and failed to cure such Covered Person with respect to breach within five business days of written notice from the interest of Company specifying any such spouse breach, in the event that the Company adopts a Rights Plan with a triggering "Acquiring Person" ownership threshold above 20% of the then-outstanding shares of Common Stock of such Covered Person if the consent of such spouse is required; such consent in substantially the form of Exhibit C hereto), and permits any other person or group required to permit such Covered Person file on Schedule 13D to enter into this Agreement and to consummate the transactions contemplated herein;
(g) there are no actions, suits buy or proceedings pending, or, own pursuant to the knowledge terms of, or as a result of being waived through, such Covered Rights Plan an amount higher than the triggering "Acquiring Person" ownership threshold in such Rights Plan, threatened against then the Company shall similarly permit the Icahn Group to buy or affecting own such Covered Person higher amount pursuant to the terms of, or as a result of being waived through, such Covered Person’s assets in Rights Plan. A "Rights Plan" means any court plan or before arrangement of the sort commonly referred to as a "rights plan" or by "stockholder rights plan" or "shareholder rights plan" or "poison pill" that is designed to increase the cost to a potential acquirer of exceeding the applicable ownership thresholds through the issuance of new rights, common stock or preferred shares (or any federalother security or device that may be issued to stockholders of the Company other than ratably to all stockholders of the Company) that carry severe redemption provisions, state, municipal favorable purchase provisions or other governmental department, commission, board, bureau, agency or instrumentality which, if adversely determined, would impair the ability of such Covered Person to perform this Agreement;
(h) the performance of this Agreement will not violate any order, writ, injunction, decree or demand of any court or federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality to which such Covered Person is subject; and
(i) no statement, representation or warranty made by such Covered Person in this Agreement, nor any information provided by such Covered Person for inclusion in a registration statement filed by APAM in connection with the IPO contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements, representations or warranties contained herein or information provided therein not misleading.
(j) Each Covered Person severallyotherwise, and not jointly, agrees for himself that the foregoing provision of this Article VII shall be a continuing representation and covenant by him during the period that he shall be a Covered Person, and he shall take all actions as shall from time to time be necessary to cure any breach or violation and to obtain any authorizations, consents, approvals and clearances in order that such representations shall be true and correct during that periodrelated rights agreement.
Appears in 1 contract
Representations and Warranties and Covenants. 3.1 Each Covered Person severally of the parties hereto represents and warrants or agrees, as applicable, for himself to the other parties that:
(a) Such Covered Person such party has (and, with respect all requisite corporate or other authority and power necessary to shares of Common Stock to be acquired, will have) good, valid execute and marketable title to the shares of Common Stock subject to the transfer restrictions in Section 6.1, if applicable, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind, other than pursuant to deliver this Agreement, an agreement with APAM by which such Covered Person is bound Agreement and to which consummate the shares of Common Stock are subject or as permitted by the policies of APAM in effect from time to timetransactions contemplated hereby;
(b) Such Covered Person has (and, with respect to shares of Common Stock to be acquired, will have) the right to vote pursuant to Section 2.1 of this Agreement all shares of Common Stock of which the Covered Person is the Sole Beneficial Owner; and
(c) If the Covered Person is not a natural person:
(i) such Covered Person is duly organized and validly existing in good standing under the laws of the jurisdiction of such Covered Person’s formation;
(ii) such Covered Person has full right, power and authority to enter into and perform this Agreement;
(iii) the execution and delivery of this Agreement and the performance consummation of the transactions contemplated herein hereby have been duly authorized, and validly authorized by all required corporate or other action on the part of such party and no further other proceedings on the part of such Covered Person party are necessary to authorize the execution, delivery and performance of this Agreement; and this Agreement has been duly executed by such Covered Person;
(iv) the Person signing this Agreement on behalf of such Covered Person has been duly authorized by such Covered Person to do so;
(d) this Agreement constitutes the legal, valid and binding obligation of such Covered Person, enforceable against such Covered Person in accordance with its terms (subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles);
(e) neither the execution and delivery of this Agreement by such Covered Person nor the consummation of or to consummate the transactions contemplated herein conflicts hereby;
(c) this Agreement has been duly and validly executed and delivered by such party and constitutes the valid and binding obligation of such party enforceable against such party in accordance with or results its terms; and
(d) this Agreement will not result in a breach violation of any of the terms, conditions terms or provisions of any agreement or instrument agreements to which such Covered Person person is a party or by which the assets such party may otherwise be bound or of such Covered Person are bound (including without limitation the organizational documents of such Covered Personany law, if such Covered Person is other than a natural person)rule, license, regulation, judgment, order or constitutes a default under any of the foregoing, or violates any law or regulation;
(f) such Covered Person has obtained all authorizations, consents, approvals and clearances of all courts, governmental agencies and authorities, and any other Person, if any (including the consent of the spouse of such Covered Person with respect to the interest of such spouse in the shares of Common Stock of such Covered Person if the consent of such spouse is required; such consent in substantially the form of Exhibit C hereto), required to permit such Covered Person to enter into this Agreement and to consummate the transactions contemplated herein;
(g) there are no actions, suits or proceedings pending, or, to the knowledge of such Covered Person, threatened against decree governing or affecting such Covered Person or such Covered Person’s assets in any court or before or by any federalparty.
3.2 Each member of the Icahn Group jointly represents and warrants that, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality which, if adversely determined, would impair as of the ability date of such Covered Person to perform this Agreement;
, (ha) the performance Icahn Group Beneficially Owns an aggregate of this Agreement will not violate 19,353,530 shares of Voting Stock of the Company, (b) except for such ownership, no member of the Icahn Group, individually or in the aggregate with all other members of the Icahn Group and its controlled Affiliates, has any order, writ, injunction, decree or demand other Beneficial Ownership of any court or federalVoting Stock and (c) the Icahn Group, statecollectively with its controlled Affiliates, municipal or other governmental departmenthas a Net Long Position of 19,353,530 shares of Voting Stock.
3.3 The Company represents that since January 1, commission2015, board, bureau, agency or instrumentality to which such Covered Person is subject; and
there have been: (i) no amendments to the Company’s bylaws other than as publicly disclosed; and (ii) no material amendments to compensatory arrangements applicable to named executive officers other than as publicly disclosed.
3.4 During the Standstill Period, so long as the Icahn Group has not materially breached this Agreement and failed to cure such breach within five business days of written notice from the Company specifying any such breach, the Company shall not make, or cause to be made, by press release or similar public statement, representation including to the press or warranty made by such Covered Person media, or in an SEC filing, any statement or announcement that disparages (as distinct from objective statements reflecting business criticism) any member of the Icahn Group, the officers or directors of any member of the Icahn Group, or any person who has served as an officer or director of any member of the Icahn Group in the past.
3.5 From and after the date of this Agreement, nor any information provided the Icahn Designees shall be covered by such Covered Person for inclusion in a registration statement filed by APAM in connection with the IPO contains or will contain any untrue statement same indemnification and insurance provisions and coverage as are applicable to the individuals that are currently directors of a material fact or omits or will omit to state a material fact necessary in order to make the statements, representations or warranties contained herein or information provided therein not misleadingCompany.
(j) Each Covered Person severally3.6 During the Standstill Period, so long as the Icahn Group has not materially breached this Agreement and not jointly, agrees for himself that the foregoing provision of this Article VII shall be a continuing representation and covenant by him during the period that he shall be a Covered Person, and he shall take all actions as shall from time to time be necessary failed to cure such breach within five business days of written notice from the Company specifying any breach or violation and to obtain such breach, any authorizations, consents, approvals and clearances in order that such representations shall be true and correct during that period.Rights Plan adopted by the Company
Appears in 1 contract
Sources: Nomination and Standstill Agreement (Cheniere Energy Inc)
Representations and Warranties and Covenants. 3.1 Each Covered Person severally of the parties hereto represents and warrants or agrees, as applicable, for himself to the other parties that:
(a) Such Covered Person such party has (and, with respect all requisite corporate or other authority and power necessary to shares of Common Stock to be acquired, will have) good, valid execute and marketable title to the shares of Common Stock subject to the transfer restrictions in Section 6.1, if applicable, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind, other than pursuant to deliver this Agreement, an agreement with APAM by which such Covered Person is bound Agreement and to which consummate the shares of Common Stock are subject or as permitted by the policies of APAM in effect from time to timetransactions contemplated hereby;
(b) Such Covered Person has (and, with respect to shares of Common Stock to be acquired, will have) the right to vote pursuant to Section 2.1 of this Agreement all shares of Common Stock of which the Covered Person is the Sole Beneficial Owner; and
(c) If the Covered Person is not a natural person:
(i) such Covered Person is duly organized and validly existing in good standing under the laws of the jurisdiction of such Covered Person’s formation;
(ii) such Covered Person has full right, power and authority to enter into and perform this Agreement;
(iii) the execution and delivery of this Agreement and the performance consummation of the transactions contemplated herein hereby have been duly authorized, and validly authorized by all required corporate or other action on the part of such party and no further other proceedings on the part of such Covered Person party are necessary to authorize the execution, delivery and performance of this Agreement; and this Agreement has been duly executed by such Covered Person;
(iv) the Person signing this Agreement on behalf of such Covered Person has been duly authorized by such Covered Person to do so;
(d) this Agreement constitutes the legal, valid and binding obligation of such Covered Person, enforceable against such Covered Person in accordance with its terms (subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles);
(e) neither the execution and delivery of this Agreement by such Covered Person nor the consummation of or to consummate the transactions contemplated herein conflicts hereby;
(c) this Agreement has been duly and validly executed and delivered by such party and constitutes the valid and binding obligation of such party enforceable against such party in accordance with or results its terms; and
(d) this Agreement will not result in a breach violation of any of the terms, conditions terms or provisions of any agreement or instrument agreements to which such Covered Person person is a party or by which the assets such party may otherwise be bound or of such Covered Person are bound (including without limitation the organizational documents of such Covered Personany law, if such Covered Person is other than a natural person)rule, license, regulation, judgment, order or constitutes a default under any of the foregoing, or violates any law or regulation;
(f) such Covered Person has obtained all authorizations, consents, approvals and clearances of all courts, governmental agencies and authorities, and any other Person, if any (including the consent of the spouse of such Covered Person with respect to the interest of such spouse in the shares of Common Stock of such Covered Person if the consent of such spouse is required; such consent in substantially the form of Exhibit C hereto), required to permit such Covered Person to enter into this Agreement and to consummate the transactions contemplated herein;
(g) there are no actions, suits or proceedings pending, or, to the knowledge of such Covered Person, threatened against decree governing or affecting such Covered Person or such Covered Person’s assets in any court or before or by any federalparty.
3.2 Each member of the Icahn Group jointly represents and warrants that, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality which, if adversely determined, would impair as of the ability date of such Covered Person to perform this Agreement;
, (ha) the performance Icahn Group Beneficially Owns an aggregate of this Agreement will not violate 34,154,879 shares of Voting Stock of the Company, (b) except for such ownership, no member of the Icahn Group, individually or in the aggregate with all other members of the Icahn Group and its Affiliates has any order, writ, injunction, decree or demand other Beneficial Ownership of any court or federalVoting Stock and (c) the Icahn Group, statecollectively with its Affiliates, municipal or other governmental departmenthas a Net Long Position of 34,154,879 shares of Voting Stock.
3.3 The Company represents that since January 1, commission2013, board, bureau, agency or instrumentality to which such Covered Person is subject; and
there have been: (i) no amendments to the Company’s bylaws other than as publicly disclosed; and (ii) no material amendments to compensatory arrangements applicable to named executive officers other than as publicly disclosed.
3.4 As long as the Icahn Group has not materially breached this Agreement and failed to cure such breach within five business days of written notice from the Company specifying any such breach, the Company shall not make, or cause to be made, by press release or similar public statement, representation including to the press or warranty made by such Covered Person media, or in an SEC filing, any statement or announcement that disparages (as distinct from objective statements reflecting business criticism) any member of the Icahn Group, the officers or directors of any member of the Icahn Group, or any person who has served as an officer or director of any member of the Icahn Group in the past.
3.5 From and after the date of this Agreement, nor any information provided the Icahn Designees shall be covered by such Covered Person for inclusion in a registration statement filed by APAM in connection with the IPO contains or will contain any untrue statement same indemnification and insurance provisions and coverage as are applicable to the individuals that are currently directors of a material fact or omits or will omit to state a material fact necessary in order to make the statements, representations or warranties contained herein or information provided therein not misleadingCompany.
3.6 The Company represents, warrants, covenants and agrees (ja) Each Covered Person severallyto deem each of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ to be a “Continuing Director” as defined in the Company’s Certificate of Incorporation, (b) that, upon his appointment to the Board, each of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and not jointly▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall constitute a “Continuing Director” under that certain First Supplemental Indenture dated as of December 10, agrees for himself 2007, between the Company and Wilmington Trust Company, as Trustee, (c) that the foregoing provision addition of this Article VII ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ to the Board on the date hereof has been approved and authorized by the Board, a majority of whom were directors on August 1, 2012, or whose election or nomination for election was previously approved by a majority of such directors, (d) that ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ will be nominated for election at the 2014 Annual Meeting by the Board, a majority of whom were directors on August 1, 2012, or whose election or nomination for election was previously approved by a majority of such directors and (e) that each of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall otherwise be deemed to be, or shall constitute, a continuing representation and covenant by him during the period that he shall be a Covered Person, and he shall take all actions as shall from time to time be necessary to cure “Continuing Director” for purposes of compensation arrangements with any breach executive officers or violation and to obtain any authorizations, consents, approvals and clearances in order that such representations shall be true and correct during that periodother employees.
Appears in 1 contract
Representations and Warranties and Covenants. 3.1 Each Covered Person severally of the parties hereto represents and warrants or agrees, as applicable, for himself to the other parties that:
(a) Such Covered Person such party has (and, with respect all requisite corporate or other authority and power necessary to shares of Common Stock to be acquired, will have) good, valid execute and marketable title to the shares of Common Stock subject to the transfer restrictions in Section 6.1, if applicable, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind, other than pursuant to deliver this Agreement, an agreement with APAM by which such Covered Person is bound Agreement and to which consummate the shares of Common Stock are subject or as permitted by the policies of APAM in effect from time to timetransactions contemplated hereby;
(b) Such Covered Person has (and, with respect to shares of Common Stock to be acquired, will have) the right to vote pursuant to Section 2.1 of this Agreement all shares of Common Stock of which the Covered Person is the Sole Beneficial Owner; and
(c) If the Covered Person is not a natural person:
(i) such Covered Person is duly organized and validly existing in good standing under the laws of the jurisdiction of such Covered Person’s formation;
(ii) such Covered Person has full right, power and authority to enter into and perform this Agreement;
(iii) the execution and delivery of this Agreement and the performance consummation of the transactions contemplated herein hereby have been duly authorized, and validly authorized by all required corporate or other action on the part of such party and no further other proceedings on the part of such Covered Person party are necessary to authorize the execution, delivery and performance of this Agreement; and this Agreement has been duly executed by such Covered Person;
(iv) the Person signing this Agreement on behalf of such Covered Person has been duly authorized by such Covered Person to do so;
(d) this Agreement constitutes the legal, valid and binding obligation of such Covered Person, enforceable against such Covered Person in accordance with its terms (subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles);
(e) neither the execution and delivery of this Agreement by such Covered Person nor the consummation of or to consummate the transactions contemplated herein conflicts hereby;
(c) this Agreement has been duly and validly executed and delivered by such party and constitutes the valid and binding obligation of such party enforceable against such party in accordance with or results its terms; and
(d) this Agreement will not result in a breach violation of any of the terms, conditions terms or provisions of any agreement or instrument agreements to which such Covered Person person is a party or by which such party may otherwise be bound or of any law, rule, license, regulation, judgment, order or decree governing or affecting such party.
3.2 Each member of the assets Sarissa Group jointly represents and warrants that, as of the date of this Agreement, (a) the Sarissa Group Beneficially Owns an aggregate of 12,850,000 shares of Voting Stock of the Company, (b) except for (i) such Covered Person are bound ownership, (including without limitation ii) $8,800,000 in aggregate principal amount of ARIAD’s 3.625% Convertible Senior Notes due 2019 and (iii) equity awards granted to ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ in his capacity as a director of the organizational documents of such Covered PersonCompany (in each case, if such Covered Person is other than a natural person), or constitutes a default under to the extent any of the foregoingforegoing constitutes Beneficial Ownership of Voting Stock), no member of the Sarissa Group, individually or in the aggregate with all other members of the Sarissa Group and its Affiliates has any other Beneficial Ownership of any Voting Stock and (c) the Sarissa Group, collectively with its Affiliates, has a Net Long Position of 12,850,000 shares of Voting Stock.
3.3 The Company represents that since January 1, 2013, there have been: (i) no amendments to the Company’s bylaws other than as publicly disclosed; and (ii) no material amendments to compensatory arrangements applicable to named executive officers other than as publicly disclosed.
3.4 During the Standstill Period, as long as the Sarissa Group has not intentionally and materially breached this Agreement or the Existing Agreement and failed to cure such breach within five business days of written notice from the Company specifying any such breach, the Company shall not make or issue, or violates cause to be made or issued, any law public disclosure, statement or regulation;
announcement (fincluding any SEC filing) such Covered Person has obtained all authorizationsnegatively commenting upon any member of the Sarissa Group or its principals or employees, consentsincluding the Sarissa Group’s corporate strategy, approvals business, corporate activities, governing body or management (and clearances including making any statements critical of all courtsthe Sarissa Group’s business, governmental agencies and authoritiesstrategic direction, capital structure or compensation practices). This Agreement is not intended to, and shall be interpreted in a manner that does not, limit or restrict the Company or any other Person, if Affiliate thereof from exercising any legally protected whistleblower rights (including pursuant to Rule 21F under the consent Exchange Act).
3.5 From and after the date of this Agreement, the New Sarissa Designee shall be covered by the same indemnification and insurance provisions and coverage as are applicable to the individuals that are currently directors of the spouse Company.
3.6 The Company represents, warrants, covenants and agrees (a) that, for purposes of such Covered Person with respect the Company’s 2005 Executive Compensation Plan, the appointment of the New Sarissa Designee to the interest Board has been endorsed by a majority of such spouse in the shares members of Common Stock the Board before the date hereof and (b) that, upon her appointment to the Board, the New Sarissa Designee shall be deemed to be, or shall constitute, a “Continuing Director” for purposes of such Covered Person if indemnification arrangements with any officers or directors.
3.7 The Company hereby agrees that it shall not, for so long as the consent New Sarissa Designee is a member of such spouse is required; such consent in substantially the form Board adopt any policies applicable to directors that are inconsistent with the provisions of Exhibit C hereto), required to permit such Covered Person to enter into this Agreement and to consummate the transactions contemplated herein;
(g) there extent any such policies are no actions, suits or proceedings pending, or, to inconsistent with the knowledge terms of such Covered Person, threatened against or affecting such Covered Person or such Covered Person’s assets in any court or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality which, if adversely determined, would impair the ability of such Covered Person to perform this Agreement;
(h) , the performance terms of this Agreement will not violate any order, writ, injunction, decree or demand of any court or federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality to which such Covered Person is subject; and
(i) no statement, representation or warranty made by such Covered Person in this Agreement, nor any information provided by such Covered Person for inclusion in a registration statement filed by APAM in connection with the IPO contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements, representations or warranties contained herein or information provided therein not misleadingshall govern.
(j) Each Covered Person severally, and not jointly, agrees for himself that the foregoing provision of this Article VII shall be a continuing representation and covenant by him during the period that he shall be a Covered Person, and he shall take all actions as shall from time to time be necessary to cure any breach or violation and to obtain any authorizations, consents, approvals and clearances in order that such representations shall be true and correct during that period.
Appears in 1 contract
Representations and Warranties and Covenants. 3.1 Each Covered Person severally of the parties hereto represents and warrants or agrees, as applicable, for himself to the other parties that:
(a) Such Covered Person such party has (and, with respect all requisite corporate or other authority and power necessary to shares of Common Stock to be acquired, will have) good, valid execute and marketable title to the shares of Common Stock subject to the transfer restrictions in Section 6.1, if applicable, free and clear of any pledge, lien, security interest, charge, claim, equity or encumbrance of any kind, other than pursuant to deliver this Agreement, an agreement with APAM by which such Covered Person is bound Agreement and to which consummate the shares of Common Stock are subject or as permitted by the policies of APAM in effect from time to timetransactions contemplated hereby;
(b) Such Covered Person has (and, with respect to shares of Common Stock to be acquired, will have) the right to vote pursuant to Section 2.1 of this Agreement all shares of Common Stock of which the Covered Person is the Sole Beneficial Owner; and
(c) If the Covered Person is not a natural person:
(i) such Covered Person is duly organized and validly existing in good standing under the laws of the jurisdiction of such Covered Person’s formation;
(ii) such Covered Person has full right, power and authority to enter into and perform this Agreement;
(iii) the execution and delivery of this Agreement and the performance consummation of the transactions contemplated herein hereby have been duly authorized, and validly authorized by all required corporate or other action on the part of such party and no further other proceedings on the part of such Covered Person party are necessary to authorize the execution, delivery and performance of this Agreement; and this Agreement has been duly executed by such Covered Person;
(iv) the Person signing this Agreement on behalf of such Covered Person has been duly authorized by such Covered Person to do so;
(d) this Agreement constitutes the legal, valid and binding obligation of such Covered Person, enforceable against such Covered Person in accordance with its terms (subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles);
(e) neither the execution and delivery of this Agreement by such Covered Person nor the consummation of or to consummate the transactions contemplated herein conflicts hereby;
(c) this Agreement has been duly and validly executed and delivered by such party and constitutes the valid and binding obligation of such party enforceable against such party in accordance with or results its terms; and
(d) this Agreement will not result in a breach violation of any of the terms, conditions terms or provisions of any agreement or instrument agreements to which such Covered Person person is a party or by which such party may otherwise be bound or of any law, rule, license, regulation, judgment, order or decree governing or affecting such party.
3.2 Each member of the assets Sarissa Group jointly represents and warrants that, as of the date of this Agreement, (a) the Sarissa Group Beneficially Owns an aggregate of 12,850,000 shares of Voting Stock of the Company, (b) except for (i) such Covered Person are bound ownership, (including without limitation ii) $8,800,000 in aggregate principal amount of ARIAD’s 3.625% Convertible Senior Notes due 2019 and (iii) equity awards granted to A▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ in his capacity as a director of the organizational documents of such Covered PersonCompany (in each case, if such Covered Person is other than a natural person), or constitutes a default under to the extent any of the foregoingforegoing constitutes Beneficial Ownership of Voting Stock), no member of the Sarissa Group, individually or in the aggregate with all other members of the Sarissa Group and its Affiliates has any other Beneficial Ownership of any Voting Stock and (c) the Sarissa Group, collectively with its Affiliates, has a Net Long Position of 12,850,000 shares of Voting Stock.
3.3 The Company represents that since January 1, 2013, there have been: (i) no amendments to the Company’s bylaws other than as publicly disclosed; and (ii) no material amendments to compensatory arrangements applicable to named executive officers other than as publicly disclosed.
3.4 During the Standstill Period, as long as the Sarissa Group has not intentionally and materially breached this Agreement or the Existing Agreement and failed to cure such breach within five business days of written notice from the Company specifying any such breach, the Company shall not make or issue, or violates cause to be made or issued, any law public disclosure, statement or regulation;
announcement (fincluding any SEC filing) such Covered Person has obtained all authorizationsnegatively commenting upon any member of the Sarissa Group or its principals or employees, consentsincluding the Sarissa Group’s corporate strategy, approvals business, corporate activities, governing body or management (and clearances including making any statements critical of all courtsthe Sarissa Group’s business, governmental agencies and authoritiesstrategic direction, capital structure or compensation practices). This Agreement is not intended to, and shall be interpreted in a manner that does not, limit or restrict the Company or any other Person, if Affiliate thereof from exercising any legally protected whistleblower rights (including pursuant to Rule 21F under the consent Exchange Act).
3.5 From and after the date of this Agreement, the New Sarissa Designee shall be covered by the same indemnification and insurance provisions and coverage as are applicable to the individuals that are currently directors of the spouse Company.
3.6 The Company represents, warrants, covenants and agrees (a) that, for purposes of such Covered Person with respect the Company’s 2005 Executive Compensation Plan, the appointment of the New Sarissa Designee to the interest Board has been endorsed by a majority of such spouse in the shares members of Common Stock the Board before the date hereof and (b) that, upon her appointment to the Board, the New Sarissa Designee shall be deemed to be, or shall constitute, a “Continuing Director” for purposes of such Covered Person if indemnification arrangements with any officers or directors.
3.7 The Company hereby agrees that it shall not, for so long as the consent New Sarissa Designee is a member of such spouse is required; such consent in substantially the form Board adopt any policies applicable to directors that are inconsistent with the provisions of Exhibit C hereto), required to permit such Covered Person to enter into this Agreement and to consummate the transactions contemplated herein;
(g) there extent any such policies are no actions, suits or proceedings pending, or, to inconsistent with the knowledge terms of such Covered Person, threatened against or affecting such Covered Person or such Covered Person’s assets in any court or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality which, if adversely determined, would impair the ability of such Covered Person to perform this Agreement;
(h) , the performance terms of this Agreement will not violate any order, writ, injunction, decree or demand of any court or federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality to which such Covered Person is subject; and
(i) no statement, representation or warranty made by such Covered Person in this Agreement, nor any information provided by such Covered Person for inclusion in a registration statement filed by APAM in connection with the IPO contains or will contain any untrue statement of a material fact or omits or will omit to state a material fact necessary in order to make the statements, representations or warranties contained herein or information provided therein not misleadingshall govern.
(j) Each Covered Person severally, and not jointly, agrees for himself that the foregoing provision of this Article VII shall be a continuing representation and covenant by him during the period that he shall be a Covered Person, and he shall take all actions as shall from time to time be necessary to cure any breach or violation and to obtain any authorizations, consents, approvals and clearances in order that such representations shall be true and correct during that period.
Appears in 1 contract