Representations and Warranties of the Shareholders. Each Shareholder hereby represents and warrants to the Company and ION solely as to itself and severally and not jointly as follows: (a) Such Shareholder is the only record and beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement, the Investors’ Rights Agreement and Permitted Liens. As of the date hereof, other than the Owned Shares, such Shareholder does not own beneficially or of record any share capital of ION (or any securities, including warrants exercisable, convertible or exchangeable into share capital of ION). (b) Such Shareholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to such Shareholder’s Covered Shares, (ii) has not entered into any voting agreement or voting trust or any other agreement or arrangement, including any proxy, consent or power of attorney, with respect to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations pursuant to this Agreement, and has no knowledge and is not aware of any such proxy or power of attorney in effect, and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement, and has no knowledge and is not aware of any such agreement or undertaking. (c) Such Shareholder (i) is a legal entity duly organized, validly existing and, to the extent such concept is applicable, in good standing under the Applicable Legal Requirements of the jurisdiction of its organization, and (ii) has all requisite corporate or other power and authority and has taken all corporate or other action necessary in order to, execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by such Shareholder and constitutes a valid and binding agreement of such Shareholder enforceable against such Shareholder in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Applicable Legal Requirements affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity. (d) Other than the filings, notices and reports pursuant to, in compliance with or required to be made under the Exchange Act, if any, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of waiting periods or authorizations are required to be obtained by such Shareholder from, or to be given by such Shareholder to, or be made by such Shareholder with, any Governmental Entity in connection with the execution, delivery and performance by such Shareholder of this Agreement, the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Merger Agreement. (e) The execution, delivery and performance of this Agreement by such Shareholder do not, and the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Merger Agreement will not, constitute or result in (i) a breach or violation of, or a default under, the Organizational Documents of such Shareholder (if such Shareholder is not a natural person), (ii) with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss of any benefit under, the creation, modification or acceleration of any obligations under or the creation of a Lien on any of the properties, rights or assets of such Shareholder pursuant to any Contract binding upon such Shareholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 6(d), under any Applicable Legal Requirements to which such Shareholder is subject or (iii) any change in the rights or obligations of any party under any Contract legally binding upon such Shareholder, except, in the case of clause (ii) or (iii) directly above, for any such breach, violation, termination, default, creation, acceleration or change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair such Shareholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger or the other transactions contemplated by the Merger Agreement. (f) As of the date of this Agreement, there is no action, proceeding or investigation pending against such Shareholder or, to the knowledge of such Shareholder, threatened against such Shareholder that questions the beneficial or record ownership of such Shareholder’s Owned Shares, that would reasonably be expected to question the validity of this Agreement or to prevent or materially impair, enjoin or delay the ability of such Shareholder to perform its obligations under this Agreement or to consummate the transactions contemplated hereby. (g) Such Shareholder is a sophisticated stockholder and has adequate information concerning the business and financial condition of the Company and ION to make an informed decision regarding this Agreement and the other transactions contemplated by the Merger Agreement and has independently and based on such information as such Shareholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Shareholder acknowledges that the Company and ION have not made and do not make any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement. Such Shareholder acknowledges that the agreements contained herein with respect to the Covered Shares owned by such Shareholder are irrevocable. (h) Such Shareholder understands and acknowledges that ION and the Company are entering into the Merger Agreement in reliance upon such Shareholder’s execution and delivery of this Agreement and the representations, warranties, covenants and other agreements of such Shareholder contained herein. (i) No investment banker, broker, finder or other intermediary, other than ▇▇▇▇▇ and Company, LLC, is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which ION or the Company is or will be liable in connection with the transactions contemplated hereby based upon arrangements made by or, to the knowledge of such Shareholder, on behalf of such Shareholder.
Appears in 3 contracts
Sources: Merger Agreement (ION Acquisition Corp 1 Ltd.), Sponsor Support Agreement (Taboola.com Ltd.), Sponsor Support Agreement (Taboola.com Ltd.)
Representations and Warranties of the Shareholders. Each Shareholder Holder hereby represents and warrants andwarrants to the Company and ION solely as to itself and UP Scientech, severally and not jointly as followsjointly, that:
(a) Such Shareholder is the only record and beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement, the Investors’ Rights Agreement and Permitted Liens. As of the date hereof, other than the Owned Shares, such Shareholder does not own beneficially or of record any share capital of ION (or any securities, including warrants exercisable, convertible or exchangeable into share capital of ION).
(b) Such Shareholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to such Shareholder’s Covered Shares, (ii) has not entered into any voting agreement or voting trust or any other agreement or arrangement, including any proxy, consent or power of attorney, with respect to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations pursuant to this Agreement, and has no knowledge and is not aware of any such proxy or power of attorney in effect, and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement, and has no knowledge and is not aware of any such agreement or undertaking.
(c) Such Shareholder (i) is a legal entity duly organized, validly existing and, to the extent such concept is applicable, in good standing under the Applicable Legal Requirements of the jurisdiction of its organization, and (ii) has all requisite corporate or other power and authority and has taken all corporate or other action necessary in order to, execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Voting Agreement has been duly executed and delivered by such each Shareholder and constitutes a is the legal, valid and binding agreement obligation of such Shareholder and fully enforceable against such Shareholder in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Applicable Legal Requirements affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.terms against such Shareholder;
(db) Other than no consent of any governmental entity, beneficiary, co-trustee or other person is necessary for the filings, notices and reports pursuant to, in compliance with or required to be made under the Exchange Act, if any, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of waiting periods or authorizations are required to be obtained by such Shareholder from, or to be given by such Shareholder to, or be made by such Shareholder with, any Governmental Entity in connection with the execution, delivery and performance by such Shareholder of this Agreement, the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Merger Agreement.
(e) The execution, delivery and performance of this Voting Agreement by such Shareholder do not, and each Shareholder;
(c) subsequent to the consummation closing of the transactions contemplated hereby SSA, the Shareholders shall be the beneficial owners of twenty four million one hundred and twenty thousand (24,120,000) shares or collectively in excess of thirty five percent (35%) of the Merger issued and outstanding voting shares of Abakan's common stock;
(d) each Shareholder shall own the Subject Shares free and clear of any encumbrance other transactions contemplated by than this Voting Agreement and does not own, directly or indirectly, any other shares of Abakan's common stock or any option, warrant or other right to acquire any shares of Abakan's common stock;
(e) each Shareholder shall have the Merger Agreement will notpower and right to vote all of the Subject Shares;
(f) except as provided herein, constitute or result in each Shareholder has not (i) a breach granted any power-of-attorney or violation of, other authorization or a default under, interest with respect to any of the Organizational Documents of such Shareholder (if such Shareholder is not a natural person)Subject Shares, (ii) with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss of any benefit under, the creation, modification or acceleration of any obligations under or the creation of a Lien on deposited any of the propertiesSubject Shares into a voting trust, rights or assets of such Shareholder pursuant to any Contract binding upon such Shareholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 6(d), under any Applicable Legal Requirements to which such Shareholder is subject or (iii) entered into any change in the rights prior voting agreement or obligations of other arrangement with respect to any party under any Contract legally binding upon such Shareholder, except, in the case of clause (ii) or (iii) directly above, for any such breach, violation, termination, default, creation, acceleration or change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair such Shareholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger or the other transactions contemplated by the Merger Agreement.
(f) As of the date of this Agreement, there is no action, proceeding or investigation pending against such Shareholder or, to the knowledge of such Shareholder, threatened against such Shareholder that questions the beneficial or record ownership of such Shareholder’s Owned Subject Shares, that would reasonably be expected to question the validity of this Agreement or to prevent or materially impair, enjoin or delay the ability of such Shareholder to perform its obligations under this Agreement or to consummate the transactions contemplated hereby.; and
(g) Such Shareholder is a sophisticated stockholder the execution, delivery and has adequate information concerning the business and financial condition performance of the Company and ION to make an informed decision regarding this Voting Agreement and the other transactions contemplated by the Merger Agreement Shareholders does not and has independently and based on such information as such Shareholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Shareholder acknowledges that the Company and ION have will not made and do not make any representation or warranty, whether express or implied, result in a violation of any kind or character except as expressly set forth in this Agreement. Such Shareholder acknowledges that the agreements contained herein with respect to the Covered Shares owned by such Shareholder are irrevocable.
(h) Such Shareholder understands and acknowledges that ION and the Company are entering into the Merger Agreement in reliance upon such Shareholder’s execution and delivery of this Agreement and the representationslaw, warrantiesrule, covenants and other agreements of such Shareholder contained herein.
(i) No investment bankerregulation, brokerorder, finder judgment, injunction, decree or other intermediaryrestriction of any court or governmental authority to which the Shareholders are subject, other than ▇▇▇▇▇ and Company, LLC, is entitled to or its constitutional documents in case of any broker’s, finder’s, financial advisor’s Shareholder being a trust or other similar fee or commission for which ION or the Company is or will be liable in connection with the transactions contemplated hereby based upon arrangements made by or, to the knowledge of such Shareholder, on behalf of such Shareholderfoundation.
Appears in 3 contracts
Sources: Shareholder Voting Agreement (Abakan, Inc), Shareholder Voting Agreement (Maz Maria Camila), Shareholder Voting Agreement (Up Scientech Materials Corp)
Representations and Warranties of the Shareholders. Each Shareholder hereby As of the Applicable Time and at each Time of Delivery, each Shareholder, severally, and not jointly, represents and warrants to and agrees with each of the Company Purchasers and ION solely as to itself and severally and not jointly the Trust, as follows:
(a) Such Shareholder is the only record and beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement, the Investors’ Rights Agreement and Permitted Liens. As of the date hereof, other than the Owned Shares, such Shareholder does not own beneficially or of record any share capital of ION (or any securities, including warrants exercisable, convertible or exchangeable into share capital of ION).
(b) Such Shareholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to such Shareholder’s Covered Shares, (ii) has not entered into any voting agreement or voting trust or any other agreement or arrangement, including any proxy, consent or power of attorney, with respect to any Each of such Shareholder’s Covered Shares Shareholders and its Significant Subsidiaries (as that term is inconsistent with such Shareholder’s obligations pursuant to this Agreement, defined in Rule 1-02(w) of Regulation S-X) (iiiif any) has not granted a proxy or power of attorney with respect to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations pursuant to this Agreement, and has no knowledge and is not aware of any such proxy or power of attorney in effect, and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement, and has no knowledge and is not aware of any such agreement or undertaking.
(c) Such Shareholder (i) is a legal entity duly organized, organized and is validly existing and, to the extent such concept is applicable, is in good standing standing, under the Applicable Legal Requirements laws of the jurisdiction of its organizationin which it is chartered or organized, and (ii) has all requisite corporate or other with power and authority (corporate and has taken all corporate or other action necessary other) to operate its properties and conduct its business, and, in order tothe case of such Shareholder, execute, deliver to enter into and perform its obligations under this Agreement and (ii) is duly qualified to consummate do business as a foreign corporation and, to the extent applicable, is in good standing under the laws of each jurisdiction that requires such qualification, except where the failure to do so would not reasonably be expected to, individually or in the aggregate with respect to such Shareholder, have a material adverse effect on the performance of this Agreement or the consummation of any of the transactions contemplated hereby. hereby and by the Fundamental Agreements, or which are otherwise material in the context of the sale of the Securities by the Trust (a “Shareholder Material Adverse Effect”);
(ii) This Agreement has been duly authorized, executed and delivered by such Shareholder Shareholder;
(iii) On or prior to the First Time of Delivery, each of the applicable Forward Agreements and constitutes the Collateral Agreement will have been duly authorized, executed and delivered by such Shareholder, and assuming the due authorization, execution and delivery by the other parties thereto, will constitute a valid and legally binding agreement of such Shareholder Shareholder, enforceable against such Shareholder in accordance with its terms, subject to applicable except as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium moratorium, concurso mercantil, liquidación or other similar laws relating to or affecting the rights and similar Applicable Legal Requirements affecting creditors’ rights generally and subject, as to enforceability, to remedies of creditors or by general principles of equity.;
(div) Other than the filings, notices and reports pursuant to, in The compliance with or required to be made under the Exchange Act, if any, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of waiting periods or authorizations are required to be obtained by such Shareholder from, or to be given by such Shareholder to, or be made by such Shareholder with, any Governmental Entity in connection with all of the execution, delivery and performance by such Shareholder provisions of this Agreement, the consummation of the transactions contemplated hereby or the Merger applicable Forward Agreement and the other transactions contemplated by the Merger Agreement.
(e) The execution, delivery and performance of this Collateral Agreement by such Shareholder do not, and the consummation of the transactions herein and therein contemplated hereby or the Merger and the other transactions contemplated by the Merger Agreement will not, constitute not conflict with or result in (i) a breach or violation of any of the terms or provisions of, or constitute a default under, (i) the Organizational Documents charter or by-laws (estatutos sociales) or comparable constitutive documents of such Shareholder (if such Shareholder is not a natural person)Shareholder, (ii) with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss terms of any benefit underindenture, the creationmortgage, modification deed of trust, loan agreement or acceleration of any obligations under other agreement or the creation of a Lien on any of the properties, rights or assets of such Shareholder pursuant to any Contract binding upon such Shareholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 6(d), under any Applicable Legal Requirements instrument to which such Shareholder is subject a party or by which it is bound or to which its property is subject, or (iii) any change in the rights statute or obligations any order, rule or regulation of any party under court or governmental agency or body having jurisdiction over such Shareholder or any Contract legally binding upon such Shareholder, except, of its respective properties (except in the case of clause clauses (ii) or and (iii) directly above, for any such breach, violation, termination, default, creation, acceleration or change that as would notnot reasonably be expected to, individually or in the aggregateaggregate with respect to such Shareholder, reasonably have a Shareholder Material Adverse Effect); and no consent, approval, authorization, filing or registration with, or order of any court or governmental agency or body having jurisdiction over such Shareholder is required in connection with the transactions contemplated by this Agreement, the applicable Forward Agreement or the Collateral Agreement, except as have already been obtained or as may be expected required under state securities or Blue Sky laws;
(v) Such Shareholder has, and immediately prior to prevent each Time of Delivery will have, a security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) to the Shares of Stock to be Pledged and assigned by it under the Collateral Agreement maintained in a securities account on the books of U.S. Bank, free and clear of all liens, encumbrances, equities or materially delay claims other than such liens as have been disclosed to you in writing and as will be released at or impair before the relevant Time of Delivery and other than those created pursuant to the Collateral Agreement; all consents, approvals, authorizations and orders necessary for such Shareholder to pledge and assign the shares of Stock to be pledged and assigned by such Shareholder pursuant to the Collateral Agreement have been obtained; such Shareholder has full right, power and authority to pledge and assign the shares of Stock to be pledged and assigned by such Shareholder pursuant to the Collateral Agreement; and, upon crediting of such shares of Stock to a securities account in the Trust’s name at U.S. Bank and payment therefor pursuant to the applicable Forward Agreement, the Trust will acquire a security entitlement to such shares of Stock and, assuming the Trust acquires its interest without notice of any adverse claim, no adverse claim may be asserted against the Trust with respect to such security entitlement;
(vi) At each Time of Delivery, the representations and warranties of such Shareholder set forth in Section 3.1 of the Collateral Agreement will be true and correct on and as of such date with the same effect as though such representations and warranties had been set forth in full in this Agreement;
(vii) The Preliminary Offering Circular, on the date thereof, did not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements in the Preliminary Offering Circular, in the light of the circumstances under which they were made, not misleading; provided, however, that such Shareholder makes no representation or warranty as to the information contained in or omitted from the Preliminary Offering Circular in reliance upon and in conformity with information, as described in Section 13, that has been furnished in writing to the Trust by or on behalf of the Purchasers through the Representative specifically for inclusion therein. The Pricing Disclosure Package did not, at the Applicable Time, and the Offering Circular will not, as of its date and at any Time of Delivery, contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that such Shareholder makes no representation or warranty as to the information contained in or omitted from the Pricing Disclosure Package or the Offering Circular in reliance upon and in conformity with information, as described in Section 13, that has been furnished in writing to the Trust by or on behalf of the Purchasers through the Representative specifically for inclusion therein.
(viii) The statements set forth in the Offering Circular under the captions “Investment Objective and Policies” and “Description of Securities,” insofar as they purport to constitute a summary of the terms of the Securities, and under the caption “Plan of Distribution,” insofar as they purport to constitute summaries of the provisions of the laws and documents referred to therein, fairly and accurately summarize such matters, and the statements made in the Offering Circular under the heading “Certain U.S. Federal Income Tax Considerations”, insofar as such statements purport to summarize certain federal income tax laws of the United States, constitute a fair summary of the principal U.S. federal income tax consequences of an investment in the Securities;
(ix) The entry into this Agreement and the applicable Forward Agreement and the transactions in connection therewith contemplated hereby and by the other Fundamental Agreements is not prompted by such Shareholder’s ability possession of any material non-public information concerning the Company;
(x) Neither such Shareholder nor any of its affiliates has taken or will take, directly or indirectly, any action designed to perform or that has constituted or which might have been expected to cause or result in stabilization or manipulation of the price of the Securities or the price of the Stock;
(xi) The operations of such Shareholder and its obligations hereunder or to consummate subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the transactions contemplated herebyCurrency and Foreign Transactions Reporting Act of 1970, as amended, and the applicable anti-money laundering statutes of the United States, Mexico and all other jurisdictions in which they are licensed and/or conduct business, the consummation rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency or inter-governmental group or organization, all as amended and any executed order, directive, or regulation pursuant to the authority of any of the Merger foregoing, or any orders or licenses issued thereunder (collectively, the other transactions contemplated by the Merger Agreement.
(f) As of the date of this Agreement“Shareholder Anti-Money Laundering Laws”), there is and no action, suit or proceeding by or investigation pending against before any court or governmental or inter-governmental agency, authority or body or any arbitrator involving such Shareholder or any of its subsidiaries with respect to the Shareholder Anti-Money Laundering Laws is pending or, to the knowledge of such Shareholder, threatened against such Shareholder that questions the beneficial or record ownership of such Shareholder’s Owned Sharesthreatened. In addition, that would reasonably be expected to question the validity of this Agreement or to prevent or materially impair, enjoin or delay the ability of such Shareholder to perform its obligations under this Agreement or to consummate the transactions contemplated hereby.
(g) Such Shareholder is a sophisticated stockholder and has adequate information concerning the business and financial condition of the Company and ION to make an informed decision regarding this Agreement and the other transactions contemplated by the Merger Agreement and has independently and based on such information as such Shareholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Shareholder acknowledges that the Company and ION have not made and do not make any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement. Such Shareholder acknowledges that the agreements contained herein with respect implemented anti-money laundering compliance programs to the Covered Shares owned extent required by such Shareholder are irrevocable.applicable Mexican law;
(hxii) Such Shareholder understands and acknowledges that ION and the Company are entering into the Merger Agreement in reliance upon Neither such Shareholder’s execution and delivery , nor any of this Agreement and the representationsits subsidiaries, warranties, covenants and other agreements of such Shareholder contained herein.
(i) No investment banker, broker, finder officers or other intermediary, other than ▇▇▇▇▇ and Company, LLC, is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which ION or the Company is or will be liable in connection with the transactions contemplated hereby based upon arrangements made by ornon-independent directors nor, to the knowledge of such Shareholder, any agent, employee, Affiliate, representative or independent director of such Shareholder or any of its subsidiaries (i) is, or is 50% or more owned in the aggregate or otherwise controlled by or is acting on behalf of one or more individuals or entities that are, currently the subject of Sanctions (such persons, “Sanctioned Persons” and each such person, a “Sanctioned Person”), (ii) is located, organized or resident in a Sanctioned Jurisdiction or (iii) will directly or indirectly use the proceeds of the sale of the Securities, or lend, contribute or otherwise make available such proceeds to any subsidiaries, joint venture partners or other person, to fund any activities of or business with any person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or in any other manner that will result in a violation of any Sanctions by, or could result in the imposition of Sanctions against, any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions;
(xiii) Neither such Shareholder nor any of its subsidiaries has engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Jurisdiction, in the preceding three years, nor does such Shareholder or any of its subsidiaries have any plans to engage in dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Jurisdiction. No part of the proceeds of the offering will be used, directly or indirectly, in violation of the Corrupt Practice Laws (as defined below);
(xiv) Neither such Shareholder nor any of its subsidiaries, officers or non-independent directors nor, to the knowledge of such Shareholder, any agent, employee, Affiliate, representative or independent director of such Shareholder or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the applicable provisions, if any, of the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”) or any applicable rule, law or regulation of any other jurisdiction seeking to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, signed December 17, 1997, or to regulate the same or similar subject matter (“Corrupt Practice Laws”) including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of Corrupt Practice Laws; and each Shareholder, its subsidiaries and, to the knowledge of such Shareholder, its Affiliates have conducted their businesses in compliance with applicable Corrupt Practice Laws and, to the extent applicable, have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith;
(xv) Such Shareholders is not (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”) or (3) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(xvi) Such Shareholder has the power to submit, and pursuant to Section 20 of this Agreement, has legally, validly, effectively, explicitly and irrevocably submitted and, pursuant to section 8.4 of the applicable Forward Agreement and section 9.5 of the Collateral Agreement, will legally, validly, effectively and irrevocably submit, to the exclusive jurisdiction of any court of the State of New York located in the City and County of New York or in the United States District Court for the Southern District of New York, or the domicile of each of the parties hereto, in respect of actions brought against any such party as a defendant, in respect of any suit or proceeding based on or arising under this Agreement, the Securities, the applicable Forward Agreement or the Collateral Agreement, as the case may be; has validly and irrevocably waived, or will validly and irrevocably waive, as the case may be, any objection to the laying of the venue of any such suit, action or proceeding brought in any such court, and has the power to designate, appoint and empower and, pursuant to Section 20 of this Agreement, has legally, validly, effectively, explicitly and irrevocably designated, appointed and empowered, and pursuant to section 8.4 of the applicable Forward Agreement and section 9.5 of the Collateral Agreement, will legally, validly, effectively, explicitly and irrevocably designate, appoint and empower, CT Corporation System for service of process in any suit or proceeding based on or arising under this Agreement, the Notes or the Indenture, as the case may be, in any state court of the State of New York located in the City and County of New York or in the United States District Court for the Southern District of New York;
(xvii) The choice of the laws of the State of New York as the governing law of this Agreement is a valid choice of law under the laws of Mexico and the courts of Mexico would recognize and give effect to this choice of law;
(xviii) Neither such Shareholder nor its subsidiaries have immunity from jurisdiction of any court of (A) any jurisdiction in which it owns or leases property or assets, (B) the United States or the State of New York or (C) Mexico or any political subdivision thereof or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property and assets or this Agreement and the other agreements executed for consummation of the transactions contemplated herein or actions to enforce judgments in respect thereof;
(xix) A final and conclusive judgment (not subject to appeal) of the courts of the State of New York located in the City and County of New York or in the United States District Court for the Southern District of New York for the payment of money rendered against such Shareholder in respect of this Agreement or any Fundamental Agreements would be recognized by the courts of Mexico; provided, inter alia, that: (i) such judgment is final and obtained in compliance with the legal requirements of the jurisdiction of the court rendering such judgment and in compliance with all legal requirements of this Agreement or the Fundamental
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (2017 Mandatory Exchangeable Trust)
Representations and Warranties of the Shareholders. Each Shareholder of the Shareholders, on its own behalf and not on behalf of any other Shareholder, hereby severally (and, for greater certainty, not jointly with any other Shareholder) represents and warrants to the Company Purchaser as follows and ION solely as to itself acknowledges that the Purchaser is relying on such representations and severally and not jointly as followswarranties in connection with the transactions contemplated herein:
(a) Such Shareholder is the only record and beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) ofthis Agreement has been, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement, the Investors’ Rights Agreement and Permitted Liens. As of the date hereof, other than the Owned Shares, such Shareholder does not own beneficially or of record any share capital of ION (or any securities, including warrants exercisable, convertible or exchangeable into share capital of ION).
(b) Such Shareholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to such Shareholder’s Covered Shares, (ii) has not entered into any voting additional agreement or voting trust or any other agreement or arrangement, including any proxy, consent or power of attorney, with respect instrument required to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations be delivered pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations pursuant to this Agreement, and has no knowledge and is not aware of any such proxy or power of attorney in effect, and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement, and has no knowledge and is not aware of any such agreement or undertaking.
(c) Such Shareholder (i) is a legal entity duly organized, validly existing and, Agreement will be prior to the extent such concept is applicableTime of Closing, in good standing under the Applicable Legal Requirements of the jurisdiction of its organizationduly authorized, and (ii) has all requisite corporate or other power and authority and has taken all corporate or other action necessary in order to, execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by such the Shareholder and constitutes each is, or will be at the Time of Closing, a legal, valid and binding agreement obligation of such Shareholder the Shareholder, enforceable against such the Shareholder in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Applicable Legal Requirements affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.;
(db) Other than if the filingsShareholder is not an individual, notices and reports pursuant to, in compliance with or required to be made the Shareholder is validly existing under the Exchange Act, if any, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations laws of waiting periods its jurisdiction of organization and has the corporate or authorizations are required other power to be obtained by such Shareholder fromenter into this Agreement and any other agreement to which it is, or is to be given by such Shareholder tobecome, or be made by such Shareholder with, any Governmental Entity in connection with a party to pursuant to the execution, delivery terms hereof and performance by such Shareholder of this Agreement, the consummation of the transactions contemplated hereby or the Merger to perform its obligations hereunder and the other transactions contemplated by the Merger Agreement.thereunder;
(ec) The execution, the execution and delivery and performance of this Agreement by such Shareholder do does not, and the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Merger Agreement Transaction will not, constitute or result in (i) if the Shareholder is not an individual, result in a breach or violation ofof the constitution, articles or by-laws of the Shareholder (or other constating documents of the Shareholder) or of any resolutions of the directors or shareholders of the Shareholder, or a default under, the Organizational Documents of such Shareholder (if such Shareholder is not a natural person), (ii) with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss violate any provision of any benefit underapplicable law or regulation or any judicial or administrative order, award, judgment or decree applicable to the creationShareholder;
(d) the Shareholder is the registered and beneficial owner of that number of Springleaf Shares, modification or acceleration as the case may be, set forth opposite the Shareholder’s name in Schedule “A” (such ordinary shares comprising part of the Purchased Shares), free and clear of all liens, charges, mortgages, security interests, pledges, demands, claims and other encumbrances of any obligations under nature whatsoever;
(e) except for the Purchaser’s rights hereunder, no person has any agreement or option or any right or privilege capable of becoming an agreement for the creation of a Lien on any purchase of the properties, rights ordinary shares of Springleaf (namely the Purchased Shares) held or assets beneficially owned by the Shareholder and none of such Shareholder pursuant ordinary shares of Springleaf are subject to any Contract binding upon such Shareholder orvoting trust, assuming (solely shareholders agreement, voting agreement or other agreement with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 6(d), under any Applicable Legal Requirements to which such Shareholder is subject disposition or (iii) any change in the rights or obligations enjoyment of any party under any Contract legally binding upon rights of such Shareholder, except, in the case ordinary shares of clause (ii) or (iii) directly above, for any such breach, violation, termination, default, creation, acceleration or change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair such Shareholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger or the other transactions contemplated by the Merger Agreement.Springleaf;
(f) As of no consent, approval, order or authorization of, or registration or declaration with, any applicable Governmental Authority with jurisdiction over the date of this Agreement, there is no action, proceeding or investigation pending against such Shareholder or, to the knowledge of such Shareholder, threatened against such Shareholder that questions the beneficial or record ownership of such Shareholder’s Owned Shares, that would reasonably be expected to question the validity of this Agreement or to prevent or materially impair, enjoin or delay the ability of such Shareholder to perform its obligations under this Agreement or to consummate the transactions contemplated hereby.
(g) Such Shareholder is a sophisticated stockholder and has adequate information concerning the business and financial condition of the Company and ION required to make an informed decision regarding this Agreement and the other transactions contemplated be obtained by the Merger Agreement and has independently and based on such information as such Shareholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Shareholder acknowledges that in connection with the Company and ION have not made and do not make any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement. Such Shareholder acknowledges that the agreements contained herein with respect to the Covered Shares owned by such Shareholder are irrevocable.
(h) Such Shareholder understands and acknowledges that ION and the Company are entering into the Merger Agreement in reliance upon such Shareholder’s execution and delivery of this Agreement or the consummation by the Shareholder of the Transaction, except for those consents, orders, authorizations, declarations, registrations or approvals which are contemplated by this Agreement or those consents, orders, authorizations, declarations, registrations or approvals that, if not obtained, would not prevent or materially delay the consummation of the Transaction or otherwise prevent the Shareholder from performing its obligations under this Agreement;
(g) all the Shareholders are a “non-resident” of Canada within the meaning of the Tax Act;
(h) unless the Shareholder is a U.S. Shareholder and has completed and delivered a U.S. Representation Letter for U.S. Shareholder in the form attached hereto as Schedule “C” (in which case the Shareholder makes the representations, warranties, warranties and covenants and other agreements of such Shareholder contained herein.therein):
(i) No investment bankerthe offer to purchase the Shareholder’s Purchased Shares was not made to the Shareholder when either the Shareholder or any beneficial purchaser for whom it is acting, brokerif applicable, was in the United States;
(ii) the Shareholder is not a U.S. Person, is not in the United States and is not acquiring the applicable Payment Shares on behalf of, or for the account or benefit of, a U.S. Person or a person in the United States;
(iii) at the time this Agreement was executed and delivered by the Shareholder, the Shareholder was outside the United States;
(iv) if the Shareholder is a corporation or entity, (A) a majority of the Shareholder’s voting equity is beneficially owned by persons resident outside the United States; and (B) the Shareholder’s affairs are wholly controlled and directed from outside of the United States;
(v) the Shareholder or any beneficial purchaser for whom it is acting, if applicable, has no intention to distribute either directly or indirectly any of the Payment Shares in the United States, except in compliance with the U.S. Securities Act; and
(vi) the current structure of this transaction and all transactions and activities contemplated in this Agreement is not a scheme to avoid the registration requirements of the U.S. Securities Act and any applicable state securities laws;
(i) Non-Resident Shareholders represent, warrant and/or acknowledge, as applicable, that:
(i) the Payment Shares issuable hereunder have not been and will not be registered under the securities laws of any foreign jurisdiction and that the issuance of the Payment Shares pursuant to the terms of this Agreement is being made in reliance on applicable exemptions under the applicable securities law of the foreign jurisdiction, including the Singapore Securities and Futures Act (Cap. 289); and
(ii) the receipt of the Payment Shares by Non-Resident Shareholders does not contravene any of the applicable securities legislation in the jurisdiction in which it is resident, including the Singapore Securities and Futures Act (Cap. 289) and does not trigger: (i) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such transfer; and (ii) any registration or other obligation on the part of Purchaser;
(j) the Shareholder has not authorized any person to act as broker or finder or other intermediary, other than ▇▇▇▇▇ and Company, LLC, is entitled to in any broker’s, finder’s, financial advisor’s or other similar fee or commission for which ION or the Company is or will be liable capacity in connection with the transactions contemplated hereby based upon arrangements made by orthis Agreement, that in any manner may or will impose liability on Springleaf or the Purchaser; and
(k) to the knowledge of such the Shareholder, on behalf no representation or warranty of such Shareholderthe Shareholder contained in this Agreement contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading.
Appears in 1 contract
Sources: Share Exchange Agreement
Representations and Warranties of the Shareholders. Each Shareholder of the Shareholders, on its own behalf and not on behalf of any other Shareholder, hereby severally (and, for greater certainty, not jointly with any other Shareholder) represents and warrants to the Company Purchaser as follows and ION solely as to itself acknowledges that the Purchaser is relying on such representations and severally and not jointly as followswarranties in connection with the transactions contemplated herein:
(a) Such Shareholder is the only record and beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) ofthis Agreement has been, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement, the Investors’ Rights Agreement and Permitted Liens. As of the date hereof, other than the Owned Shares, such Shareholder does not own beneficially or of record any share capital of ION (or any securities, including warrants exercisable, convertible or exchangeable into share capital of ION).
(b) Such Shareholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to such Shareholder’s Covered Shares, (ii) has not entered into any voting additional agreement or voting trust or any other agreement or arrangement, including any proxy, consent or power of attorney, with respect instrument required to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations be delivered pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations pursuant to this Agreement, and has no knowledge and is not aware of any such proxy or power of attorney in effect, and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement, and has no knowledge and is not aware of any such agreement or undertaking.
(c) Such Shareholder (i) is a legal entity duly organized, validly existing and, Agreement will be prior to the extent such concept is applicableTime of Closing, in good standing under the Applicable Legal Requirements of the jurisdiction of its organizationduly authorized, and (ii) has all requisite corporate or other power and authority and has taken all corporate or other action necessary in order to, execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by such the Shareholder and constitutes each is, or will be at the Time of Closing, a legal, valid and binding agreement obligation of such Shareholder the Shareholder, enforceable against such the Shareholder in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Applicable Legal Requirements affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.;
(db) Other than if the filingsShareholder is not an individual, notices and reports pursuant to, in compliance with or required to be made the Shareholder is validly existing under the Exchange Act, if any, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations laws of waiting periods its jurisdiction of organization and has the corporate or authorizations are required other power to be obtained by such Shareholder fromenter into this Agreement and any other agreement to which it is, or is to be given by such Shareholder tobecome, or be made by such Shareholder with, any Governmental Entity in connection with a party to pursuant to the execution, delivery terms hereof and performance by such Shareholder of this Agreement, the consummation of the transactions contemplated hereby or the Merger to perform its obligations hereunder and the other transactions contemplated by the Merger Agreement.thereunder;
(ec) The execution, the execution and delivery and performance of this Agreement by such Shareholder do does not, and the consummation of the transactions contemplated hereby Transaction will not violate any provision of any applicable law or regulation or any judicial or administrative order, award, judgment or decree applicable to the Merger Shareholder;
(d) the Shareholder is the registered and beneficial owner of that number of common shares of NeuroPharm set forth opposite the Shareholder’s name in Schedule “A” (such common share comprising part of the Purchased Shares), free and clear of all Liens, charges, mortgages, security interests, pledges, demands, claims and other transactions contemplated encumbrances of any nature whatsoever;
(e) except for the Purchaser’s rights hereunder, no person has any agreement or option or any right or privilege capable of becoming an agreement for the purchase of the common shares of NeuroPharm (namely the Purchased Shares), held or beneficially owned by the Merger Agreement will not, constitute or result in (i) a breach or violation of, or a default under, the Organizational Documents of such Shareholder (if such Shareholder is not a natural person), (ii) with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss of any benefit under, the creation, modification or acceleration of any obligations under or the creation of a Lien on any of the properties, rights or assets of such Shareholder pursuant to any Contract binding upon such Shareholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 6(d), under any Applicable Legal Requirements to which such Shareholder is subject or (iii) any change in the rights or obligations of any party under any Contract legally binding upon such Shareholder, except, in the case of clause (ii) or (iii) directly above, for any such breach, violation, termination, default, creation, acceleration or change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair such Shareholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger or the other transactions contemplated by the Merger Agreement.;
(f) As of no consent, approval, order or authorization of, or registration or declaration with, any applicable Governmental Authority with jurisdiction over the date of this Agreement, there is no action, proceeding or investigation pending against such Shareholder or, to the knowledge of such Shareholder, threatened against such Shareholder that questions the beneficial or record ownership of such Shareholder’s Owned Shares, that would reasonably be expected to question the validity of this Agreement or to prevent or materially impair, enjoin or delay the ability of such Shareholder to perform its obligations under this Agreement or to consummate the transactions contemplated hereby.
(g) Such Shareholder is a sophisticated stockholder and has adequate information concerning the business and financial condition of the Company and ION required to make an informed decision regarding this Agreement and the other transactions contemplated be obtained by the Merger Agreement and has independently and based on such information as such Shareholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Shareholder acknowledges that in connection with the Company and ION have not made and do not make any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement. Such Shareholder acknowledges that the agreements contained herein with respect to the Covered Shares owned by such Shareholder are irrevocable.
(h) Such Shareholder understands and acknowledges that ION and the Company are entering into the Merger Agreement in reliance upon such Shareholder’s execution and delivery of this Agreement or the consummation by the Shareholder of the Transaction, except for those consents, orders, authorizations, declarations, registrations or approvals which are contemplated by this Agreement or those consents, orders, authorizations, declarations, registrations or approvals that, if not obtained, would not prevent or materially delay the consummation of the Transaction or otherwise prevent the Shareholder from performing its obligations under this Agreement;
(g) except as Disclosed by the Shareholder to the Purchaser, the Shareholder is not a “non- resident” of Canada within the meaning of the Act;
(h) Non-Resident Shareholders represent, warrant and/or acknowledge, as applicable, that:
i. the Payment Shares issuable hereunder have not been and will not be registered under the representationsSecurities Laws of any foreign jurisdiction and that the issuance of the Payment Shares pursuant to the terms of this Agreement is being made in reliance on applicable exemptions; and
ii. the receipt of the Payment Shares by Non-Resident Shareholders does not contravene any of the applicable securities legislation in the jurisdiction in which it is resident and does not trigger: (i) any obligation to prepare and file a prospectus or similar document, warranties, covenants or any other report with respect to such transfer; and (ii) any registration or other agreements obligation on the part of such Shareholder contained herein.Purchaser;
(i) No investment banker, broker, the Shareholder has not authorized any person to act as broker or finder or other intermediary, other than ▇▇▇▇▇ and Company, LLC, is entitled to in any broker’s, finder’s, financial advisor’s or other similar fee or commission for which ION or the Company is or will be liable capacity in connection with the transactions contemplated hereby based upon arrangements made by orthis Agreement, that in any manner may or will impose liability on NeuroPharm or the Purchaser; and
(j) to the knowledge of such the Shareholder, on behalf no representation or warranty of such Shareholderthe Shareholder contained in this Agreement contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading.
Appears in 1 contract
Sources: Share Exchange Agreement
Representations and Warranties of the Shareholders. Each Shareholder hereby represents and warrants to the Company and ION solely as to itself and (severally and not jointly as to itself only) as of the date hereof to SPAC as follows:
(a) Such Shareholder is the only record and beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) has Ownership of, and has good, valid and marketable title toto or has a valid proxy to vote, the such Shareholder’s Covered Shares, free and clear of any Liens (other than as created by this Agreement, Agreement or the Investors’ Rights Agreement and Permitted Liens. As organizational documents of the date Company (including, for the purposes hereof, other any agreements between or among shareholders of the Company) or transfer restrictions under applicable securities Laws). Other than the Owned SharesShares set forth opposite such Shareholder’s name on Schedule 1, such Shareholder does not legally own or beneficially or of record hold any share capital of ION (Company Shares or any securities, including warrants exercisable, convertible or exchangeable into share capital of ION)interest therein.
(b) Such Shareholder (i) Shareholder, in each case except as provided in this AgreementAgreement or the Company’s Governing Documents, (i) has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth hereinherein whether by Ownership or by proxy, in each case, with respect to such Shareholder’s Covered Shares, (ii) has not entered into any shareholders’ agreement, voting agreement, voting trust, pooling agreement or voting trust or any other agreement similar agreement, understanding or arrangement, including or, to the Shareholders’ knowledge, any proxyright or privilege (by Law or Contract) capable of becoming any of the foregoing, consent in each case, and has no knowledge and is not aware of any such foregoing agreement or power of attorney, arrangement in effect with respect to any of such Shareholder’s Covered Shares Shares, in each case, that is are inconsistent with with, or would interfere with, or prohibit or prevent such Shareholder’s Shareholder from satisfying its obligations pursuant to to, this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations pursuant to this Agreement, and has no knowledge and is not aware of any such proxy or power of attorney in effect, and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement, and has no knowledge and is not aware of any such agreement or undertaking.
(c) Such Shareholder affirms that (i) if the Shareholder is a natural person, he or she has all the requisite power and authority and has taken all action necessary in order to execute and deliver this Agreement, to perform his or her obligations hereunder and to consummate the transactions contemplated hereby, and (ii) if the Shareholder is not a natural person, (A) is a legal entity duly organized, validly existing and, to the extent such concept is applicable, in good standing under the Applicable Legal Requirements Laws of the jurisdiction of its organization, and (iiB) has all requisite corporate or other power and authority and has taken all corporate or other action necessary in order to, execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by such Shareholder and, subject to the due execution and delivery of this Agreement by each other Party, constitutes a legally valid and binding agreement of such Shareholder enforceable against such Shareholder in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and the terms hereof (except as enforceability may be limited by bankruptcy Laws or other similar Applicable Legal Requirements Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equityequity affecting the availability of specific performance and other equitable remedies).
(d) Other than the filings, notices and reports pursuant to, in compliance with or required to be made under the Exchange Act, if anyapplicable Law, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of waiting periods or authorizations are required to be obtained by such Shareholder from, or to be given by such Shareholder to, or be made by such Shareholder with, any Governmental Entity Authority in connection with the execution, delivery and performance by such Shareholder of this Agreement, the consummation of the transactions contemplated hereby hereby, the Arrangement or the Merger and the other transactions Transactions contemplated by the Merger Business Combination Agreement.
(e) The execution, delivery and performance of this Agreement by such Shareholder do does not, and the consummation of the transactions contemplated hereby hereby, the Arrangement or the Merger and the other transactions Transactions contemplated by the Merger Business Combination Agreement will not, constitute or result in (i) a breach or violation of, or a default under, the Organizational Governing Documents of such Shareholder (if such Shareholder is not a natural person), (ii) with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss of any benefit under, the creation, modification or acceleration of any obligations under or the creation of a Lien on any of the properties, rights or assets of such Shareholder pursuant to any Contract binding upon such Shareholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 6(d5(d), under any Applicable Legal Requirements applicable Law to which such Shareholder is subject subject, or (iii) any change in the rights or obligations of any party under any Contract legally binding upon such Shareholder, except, in the case of clause (ii) or (iii) directly above, for any such breach, violation, termination, default, creation, acceleration or change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair such Shareholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger Arrangement or the other transactions Transactions contemplated by the Merger Business Combination Agreement.
(f) As of the date of this Agreement, there There is no action, proceeding or investigation Action pending against such Shareholder or, to the knowledge of such Shareholder, threatened against such Shareholder that that, (i) in any manner, questions the beneficial or record ownership recorded Ownership of such Shareholder’s Owned Shares, that would reasonably be expected to question Covered Shares or the validity of this Agreement Agreement, or (ii) before (or, in the case of threatened Actions, that would be before) any arbitrator or any Governmental Authority, which challenges or seeks to prevent or materially impairprevent, enjoin or materially delay the ability of performance by such Shareholder to perform of its obligations under this Agreement or to consummate the transactions contemplated herebyAgreement.
(g) Such Shareholder has received a copy of and reviewed the Business Combination Agreement and has had the opportunity to consult with such Shareholder’s tax and legal advisors. Such Shareholder is a sophisticated stockholder Shareholder and has adequate information concerning the business and financial condition of SPAC and the Company and ION to make an informed decision regarding this Agreement and the other transactions contemplated by the Merger Business Combination Agreement and has independently and based on such information as such Shareholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Shareholder acknowledges that (i) SPAC and the Company and ION have not made and do not make any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement. Such Shareholder acknowledges that Agreement and (ii) the agreements contained herein with respect to the Covered Shares owned held by such Shareholder are irrevocable.
(h) Such Shareholder understands and acknowledges that ION and the Company are SPAC is entering into the Merger Business Combination Agreement in reliance upon such Shareholder’s execution and delivery of this Agreement and the representations, warranties, covenants and other agreements of such Shareholder contained herein.
(i) No investment banker, broker, finder or other intermediary, other than ▇▇▇▇▇ and Company, LLC, intermediary is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which ION SPAC or the Company is or will could be liable in connection with the Business Combination Agreement or this Agreement or any of the respective transactions contemplated hereby or thereby, in each case based upon arrangements made by such Shareholder in his, her or its capacity as a Shareholder or, to the knowledge of such Shareholder, on behalf of such ShareholderShareholder in his, her or its capacity as a Shareholder of the Company.
Appears in 1 contract
Sources: Shareholder Support Agreement (Jupiter Acquisition Corp)
Representations and Warranties of the Shareholders. Each Shareholder of the Shareholders, on its own behalf and not on behalf of any other Shareholder, hereby severally (and, for greater certainty, not jointly with any other Shareholder) represents and warrants to the Company Purchaser as follows and ION solely as to itself acknowledges that the Purchaser is relying on such representations and severally and not jointly as followswarranties in connection with the transactions contemplated herein:
(a) Such Shareholder is the only record and beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) ofthis Agreement has been, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement, the Investors’ Rights Agreement and Permitted Liens. As of the date hereof, other than the Owned Shares, such Shareholder does not own beneficially or of record any share capital of ION (or any securities, including warrants exercisable, convertible or exchangeable into share capital of ION).
(b) Such Shareholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to such Shareholder’s Covered Shares, (ii) has not entered into any voting additional agreement or voting trust or any other agreement or arrangement, including any proxy, consent or power of attorney, with respect instrument required to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations be delivered pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations pursuant to this Agreement, and has no knowledge and is not aware of any such proxy or power of attorney in effect, and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement, and has no knowledge and is not aware of any such agreement or undertaking.
(c) Such Shareholder (i) is a legal entity duly organized, validly existing and, Agreement will be prior to the extent such concept is applicableTime of Closing, in good standing under the Applicable Legal Requirements of the jurisdiction of its organizationduly authorized, and (ii) has all requisite corporate or other power and authority and has taken all corporate or other action necessary in order to, execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by such the Shareholder and constitutes each is, or will be at the Time of Closing, a legal, valid and binding agreement obligation of such Shareholder the Shareholder, enforceable against such the Shareholder in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Applicable Legal Requirements affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.;
(db) Other than if the filingsShareholder is not an individual, notices and reports pursuant to, in compliance with or required to be made the Shareholder is validly existing under the Exchange Act, if any, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations laws of waiting periods its jurisdiction of organization and has the corporate or authorizations are required other power to be obtained by such Shareholder fromenter into this Agreement and any other agreement to which it is, or is to be given by such Shareholder tobecome, or be made by such Shareholder with, any Governmental Entity in connection with a party to pursuant to the execution, delivery terms hereof and performance by such Shareholder of this Agreement, the consummation of the transactions contemplated hereby or the Merger to perform its obligations hereunder and the other transactions contemplated by the Merger Agreement.thereunder;
(ec) The execution, the execution and delivery and performance of this Agreement by such Shareholder do does not, and the consummation of the transactions contemplated hereby Transaction will not violate any provision of any applicable law or regulation or any judicial or administrative order, award, judgment or decree applicable to the Merger Shareholder;
(d) the Shareholder is the registered and beneficial owner of that number of common shares of FSB set forth opposite the Shareholder’s name in Schedule "A" (such common share comprising part of the Purchased Shares), free and clear of all Liens, charges, mortgages, security interests, pledges, demands, claims and other transactions contemplated encumbrances of any nature whatsoever;
(e) except for the Purchaser’s rights hereunder, no person has any agreement or option or any right or privilege capable of becoming an agreement for the purchase of the common shares of FSB (namely the Purchased Shares), held or beneficially owned by the Merger Agreement will not, constitute or result in (i) a breach or violation of, or a default under, the Organizational Documents Shareholder and none of such Shareholder (if such Shareholder is not a natural person), (ii) with or without notice, lapse common shares of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss of any benefit under, the creation, modification or acceleration of any obligations under or the creation of a Lien on any of the properties, rights or assets of such Shareholder pursuant FSB are subject to any Contract binding upon such Shareholder orvoting trust, assuming (solely shareholders agreement, voting agreement or other agreement with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 6(d), under any Applicable Legal Requirements to which such Shareholder is subject disposition or (iii) any change in the rights or obligations enjoyment of any party under any Contract legally binding upon rights of such Shareholder, except, in the case common shares of clause (ii) or (iii) directly above, for any such breach, violation, termination, default, creation, acceleration or change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair such Shareholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger or the other transactions contemplated by the Merger Agreement.FSB;
(f) As of no consent, approval, order or authorization of, or registration or declaration with, any applicable Governmental Authority with jurisdiction over the date of this Agreement, there is no action, proceeding or investigation pending against such Shareholder or, to the knowledge of such Shareholder, threatened against such Shareholder that questions the beneficial or record ownership of such Shareholder’s Owned Shares, that would reasonably be expected to question the validity of this Agreement or to prevent or materially impair, enjoin or delay the ability of such Shareholder to perform its obligations under this Agreement or to consummate the transactions contemplated hereby.
(g) Such Shareholder is a sophisticated stockholder and has adequate information concerning the business and financial condition of the Company and ION required to make an informed decision regarding this Agreement and the other transactions contemplated be obtained by the Merger Agreement and has independently and based on such information as such Shareholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Shareholder acknowledges that in connection with the Company and ION have not made and do not make any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement. Such Shareholder acknowledges that the agreements contained herein with respect to the Covered Shares owned by such Shareholder are irrevocable.
(h) Such Shareholder understands and acknowledges that ION and the Company are entering into the Merger Agreement in reliance upon such Shareholder’s execution and delivery of this Agreement or the consummation by the Shareholder of the Transaction, except for those consents, orders, authorizations, declarations, registrations or approvals which are contemplated by this Agreement or those consents, orders, authorizations, declarations, registrations or approvals that, if not obtained, would not prevent or materially delay the consummation of the Transaction or otherwise prevent the Shareholder from performing its obligations under this Agreement;
(g) except as Disclosed by the Shareholder to the Purchaser the Shareholder is a "non-resident" of Canada within the meaning of the Tax Act;
(h) Non-Resident Shareholders represent, warrant and/or acknowledge, as applicable, that:
i. the Payment Shares issuable hereunder have not been and will not be registered under the representationssecurities laws of any foreign jurisdiction and that the issuance of the Payment Shares pursuant to the terms of this Agreement is being made in reliance on applicable exemptions; and
ii. the receipt of the Payment Shares by Non-Resident Shareholders does not contravene any of the applicable securities legislation in the jurisdiction in which it is resident and does not trigger: (i) any obligation to prepare and file a prospectus or similar document, warranties, covenants or any other report with respect to such transfer; and (ii) any registration or other agreements obligation on the part of such Shareholder contained herein.Purchaser;
(i) No investment bankerexcept for the Finder, broker, the Shareholder has not authorized any other person to act as broker or finder or other intermediary, other than ▇▇▇▇▇ and Company, LLC, is entitled to in any broker’s, finder’s, financial advisor’s or other similar fee or commission for which ION or the Company is or will be liable capacity in connection with the transactions contemplated hereby based upon arrangements made by orthis Agreement, that in any manner may or will impose liability on FSB or the Purchaser; and
(j) to the knowledge of such the Shareholder, on behalf no representation or warranty of such Shareholderthe Shareholder contained in this Agreement contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading.
Appears in 1 contract
Representations and Warranties of the Shareholders. Each Shareholder of the Shareholders, on its own behalf and not on behalf of any other Shareholder, hereby severally (and, for greater certainty, not jointly with any other Shareholder) represents and warrants to the Company Purchaser as follows and ION solely as to itself acknowledges that the Purchaser is relying on such representations and severally and not jointly as followswarranties in connection with the transactions contemplated herein:
(a) Such Shareholder is the only record and beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) ofthis Agreement has been, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement, the Investors’ Rights Agreement and Permitted Liens. As of the date hereof, other than the Owned Shares, such Shareholder does not own beneficially or of record any share capital of ION (or any securities, including warrants exercisable, convertible or exchangeable into share capital of ION).
(b) Such Shareholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to such Shareholder’s Covered Shares, (ii) has not entered into any voting additional agreement or voting trust or any other agreement or arrangement, including any proxy, consent or power of attorney, with respect instrument required to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations be delivered by the Shareholder pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations pursuant to this Agreement, and has no knowledge and is not aware of any such proxy or power of attorney in effect, and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement, and has no knowledge and is not aware of any such agreement or undertaking.
(c) Such Shareholder (i) is a legal entity duly organized, validly existing and, Agreement will be prior to the extent such concept is applicableTime of Closing, in good standing under the Applicable Legal Requirements of the jurisdiction of its organizationduly authorized, and (ii) has all requisite corporate or other power and authority and has taken all corporate or other action necessary in order to, execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by such the Shareholder and constitutes each is, or will be at the Time of Closing, a legal, valid and binding agreement obligation of such Shareholder the Shareholder, enforceable against such the Shareholder in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Applicable Legal Requirements affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.;
(db) Other than if the filingsShareholder is not an individual, notices and reports pursuant to, in compliance with or required to be made the Shareholder is validly existing under the Exchange Act, if any, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations laws of waiting periods its jurisdiction of organization and has the corporate or authorizations are required other power to be obtained by such Shareholder fromenter into this Agreement and any other agreement to which it is, or is to be given by such Shareholder tobecome, or be made by such Shareholder with, any Governmental Entity in connection with a party to pursuant to the execution, delivery terms hereof and performance by such Shareholder of this Agreement, the consummation of the transactions contemplated hereby or the Merger to perform its obligations hereunder and the other transactions contemplated by the Merger Agreement.thereunder;
(ec) The execution, the execution and delivery and performance of this Agreement by such Shareholder do does not, and the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Merger Agreement Transaction will not, constitute or result in (i) if the Shareholder is not an individual, result in a breach or violation of, of the articles or a default under, by-laws of the Organizational Documents of such Shareholder (if such Shareholder is not a natural person), or other constating documents of the Shareholder) or of any resolutions of the directors or shareholders of the Shareholder; or (ii) with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss violate any provision of any benefit underApplicable Laws or regulation or any judicial or administrative order, award, judgment or decree applicable to the creationShareholder;
(d) the Shareholder is the registered and beneficial owner of that number of Canuck Shares set forth opposite the Shareholder’s name in Schedule “A”, modification or acceleration free and clear of all liens, charges, mortgages, security interests, pledges, demands, claims and other encumbrances of any obligations under nature whatsoever;
(e) except for the Purchaser’s rights hereunder, no person has any agreement or option or any right or privilege capable of becoming an agreement for the creation of a Lien on any purchase of the properties, rights Canuck Shares held or assets beneficially owned by the Shareholder and none of such Shareholder pursuant Canuck Shares are subject to any Contract binding upon such Shareholder orvoting trust, assuming (solely shareholders agreement, voting agreement or other agreement with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 6(d), under any Applicable Legal Requirements to which such Shareholder is subject disposition or (iii) any change in the rights or obligations enjoyment of any party under any Contract legally binding upon rights of such Shareholder, except, in the case common shares of clause (ii) or (iii) directly above, for any such breach, violation, termination, default, creation, acceleration or change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair such Shareholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger or the other transactions contemplated by the Merger Agreement.Canuck;
(f) As of no consent, approval, order or authorization of, or registration or declaration with, any applicable Governmental Authority with jurisdiction over the date of this Agreement, there is no action, proceeding or investigation pending against such Shareholder or, to the knowledge of such Shareholder, threatened against such Shareholder that questions the beneficial or record ownership of such Shareholder’s Owned Shares, that would reasonably be expected to question the validity of this Agreement or to prevent or materially impair, enjoin or delay the ability of such Shareholder to perform its obligations under this Agreement or to consummate the transactions contemplated hereby.
(g) Such Shareholder is a sophisticated stockholder and has adequate information concerning the business and financial condition of the Company and ION required to make an informed decision regarding this Agreement and the other transactions contemplated be obtained by the Merger Agreement and has independently and based on such information as such Shareholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Shareholder acknowledges that in connection with the Company and ION have not made and do not make any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement. Such Shareholder acknowledges that the agreements contained herein with respect to the Covered Shares owned by such Shareholder are irrevocable.
(h) Such Shareholder understands and acknowledges that ION and the Company are entering into the Merger Agreement in reliance upon such Shareholder’s execution and delivery of this Agreement and or the representationsconsummation by the Shareholder of the Transaction, warrantiesexcept for those consents, covenants and other agreements orders, authorizations, declarations, registrations or approvals which are contemplated by this Agreement or those consents, orders, authorizations, declarations, registrations or approvals that, if not obtained, would not prevent or materially delay the consummation of such the Transaction or otherwise prevent the Shareholder contained herein.from performing its obligations under this Agreement;
(ig) No investment banker, broker, the Shareholder is a resident at the address set forth in Schedule “A” of this Agreement;
(h) the Shareholder has not authorized any person to act as broker or finder or other intermediary, other than ▇▇▇▇▇ and Company, LLC, is entitled to in any broker’s, finder’s, financial advisor’s or other similar fee or commission for which ION or the Company is or will be liable capacity in connection with the transactions contemplated hereby based upon arrangements made by orthis Agreement, that in any manner may or will impose liability on Canuck or the Purchaser; and
(i) to the knowledge of such the Shareholder, on behalf no representation or warranty of such Shareholderthe Shareholder contained in this Agreement contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading.
Appears in 1 contract
Sources: Share Exchange Agreement
Representations and Warranties of the Shareholders. Each Shareholder of the Shareholders, on its own behalf and not on behalf of any other Shareholder, hereby severally (and, for greater certainty, not jointly with any other Shareholder) represents and warrants to the Company Purchaser as follows and ION solely as to itself acknowledges that the Purchaser is relying on such representations and severally and not jointly as followswarranties in connection with the transactions contemplated herein:
(a) Such Shareholder is the only record and beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) ofthis Agreement has been, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement, the Investors’ Rights Agreement and Permitted Liens. As of the date hereof, other than the Owned Shares, such Shareholder does not own beneficially or of record any share capital of ION (or any securities, including warrants exercisable, convertible or exchangeable into share capital of ION).
(b) Such Shareholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to such Shareholder’s Covered Shares, (ii) has not entered into any voting additional agreement or voting trust or any other agreement or arrangement, including any proxy, consent or power of attorney, with respect instrument required to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations be delivered pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations pursuant to this Agreement, and has no knowledge and is not aware of any such proxy or power of attorney in effect, and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement, and has no knowledge and is not aware of any such agreement or undertaking.
(c) Such Shareholder (i) is a legal entity duly organized, validly existing and, Agreement will be prior to the extent such concept is applicableTime of Closing, in good standing under the Applicable Legal Requirements of the jurisdiction of its organizationduly authorized, and (ii) has all requisite corporate or other power and authority and has taken all corporate or other action necessary in order to, execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by such the Shareholder and constitutes each is, or will be at the Time of Closing, a legal, valid and binding agreement obligation of such Shareholder the Shareholder, enforceable against such the Shareholder in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Applicable Legal Requirements affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.;
(db) Other than if the filingsShareholder is not an individual, notices and reports pursuant to, in compliance with or required to be made the Shareholder is validly existing under the Exchange Act, if any, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations laws of waiting periods its jurisdiction of organization and has the corporate or authorizations are required other power to be obtained by such Shareholder fromenter into this Agreement and any other agreement to which it is, or is to be given by such Shareholder tobecome, or be made by such Shareholder with, any Governmental Entity in connection with a party to pursuant to the execution, delivery terms hereof and performance by such Shareholder of this Agreement, the consummation of the transactions contemplated hereby or the Merger to perform its obligations hereunder and the other transactions contemplated by the Merger Agreement.thereunder;
(ec) The execution, the execution and delivery and performance of this Agreement by such Shareholder do does not, and the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Merger Agreement Transaction will not, constitute or result in (i) if the Shareholder is not an individual, result in a breach or violation ofof the articles or by-laws of the Shareholder (or other constating documents of the Shareholder) or of any resolutions of the directors or shareholders of the Shareholder, or a default under, the Organizational Documents of such Shareholder (if such Shareholder is not a natural person), (ii) with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss violate any provision of any benefit underapplicable law or regulation or any judicial or administrative order, award, judgment or decree applicable to the creationShareholder;
(d) the Shareholder is the registered and beneficial owner of that number of common shares of Lexington set forth opposite the Shareholder’s name in Schedule “A” (such common share comprising part of the Purchased Shares), modification or acceleration free and clear of all Liens, charges, mortgages, security interests, pledges, demands, claims and other encumbrances of any obligations under nature whatsoever;
(e) except for the Purchaser’s rights hereunder, no person has any agreement or option or any right or privilege capable of becoming an agreement for the creation of a Lien on any purchase of the propertiescommon shares of Lexington (namely the Purchased Shares), rights held or assets beneficially owned by the Shareholder and none of such Shareholder pursuant common shares of Lexington are subject to any Contract binding upon such Shareholder orvoting trust, assuming (solely shareholders agreement, voting agreement or other agreement with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 6(d), under any Applicable Legal Requirements to which such Shareholder is subject disposition or (iii) any change in the rights or obligations enjoyment of any party under any Contract legally binding upon rights of such Shareholder, except, in the case common shares of clause (ii) or (iii) directly above, for any such breach, violation, termination, default, creation, acceleration or change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair such Shareholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger or the other transactions contemplated by the Merger Agreement.Lexington;
(f) As of no consent, approval, order or authorization of, or registration or declaration with, any applicable Governmental Authority with jurisdiction over the date of this Agreement, there is no action, proceeding or investigation pending against such Shareholder or, to the knowledge of such Shareholder, threatened against such Shareholder that questions the beneficial or record ownership of such Shareholder’s Owned Shares, that would reasonably be expected to question the validity of this Agreement or to prevent or materially impair, enjoin or delay the ability of such Shareholder to perform its obligations under this Agreement or to consummate the transactions contemplated hereby.
(g) Such Shareholder is a sophisticated stockholder and has adequate information concerning the business and financial condition of the Company and ION required to make an informed decision regarding this Agreement and the other transactions contemplated be obtained by the Merger Agreement and has independently and based on such information as such Shareholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Shareholder acknowledges that in connection with the Company and ION have not made and do not make any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement. Such Shareholder acknowledges that the agreements contained herein with respect to the Covered Shares owned by such Shareholder are irrevocable.
(h) Such Shareholder understands and acknowledges that ION and the Company are entering into the Merger Agreement in reliance upon such Shareholder’s execution and delivery of this Agreement or the consummation by the Shareholder of the Transaction, except for those consents, orders, authorizations, declarations, registrations or approvals which are contemplated by this Agreement or those consents, orders, authorizations, declarations, registrations or approvals that, if not obtained, would not prevent or materially delay the consummation of the Transaction or otherwise prevent the Shareholder from performing its obligations under this Agreement;
(g) except for the Non-Resident Shareholders, the Shareholder is not a “non-resident” of Canada within the meaning of the Tax Act;
(h) unless the Shareholder is a U.S. Shareholder and has completed and delivered a U.S. Representation Letter for U.S. Shareholders in the form attached hereto as Schedule “D” (in which case the Shareholder makes the representations, warrantieswarranties and covenants therein), covenants represents and other agreements warrants that:
i. the offer to purchase the Shareholder’s Purchased Shares, as the case may be, was not made to the Shareholder when either the Shareholder or any beneficial purchaser for whom it is acting, if applicable, was in the United States;
ii. the Shareholder is not a U.S. Person, is not in the United States and is not acquiring the applicable Payment Shares on behalf of, or for the account or benefit of, a U.S. Person or a person in the United States;
iii. at the time this Agreement was executed and delivered by the Shareholder, the Shareholder was outside the United States;
iv. if the Shareholder is a corporation or entity, (A) a majority of such the Shareholder’s voting equity is beneficially owned by persons resident outside the United States; and (B) the Shareholder’s affairs are wholly controlled and directed from outside of the United States;
v. the Shareholder contained herein.or any beneficial purchaser for whom it is acting, if applicable, has no intention to distribute either directly or indirectly any of the Payment Shares in the United States, except in compliance with the U.S. Securities Act; and
vi. the current structure of this transaction and all transactions and activities contemplated in this Agreement is not a scheme to avoid the registration requirements of the U.S. Securities Act and any applicable state securities laws;
(i) No investment bankerNon-Resident Shareholders represent, brokerwarrant and/or acknowledge, as applicable, that:
i. the Payment Shares issuable hereunder have not been and will not be registered under the securities laws of any foreign jurisdiction and that the issuance of the Payment Shares pursuant to the terms of this Agreement is being made in reliance on applicable exemptions; and
ii. the receipt of the Payment Shares by Non-Resident Shareholders does not contravene any of the applicable securities legislation in the jurisdiction in which it is resident and does not trigger: (i) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such transfer; and (ii) any registration or other obligation on the part of Purchaser;
(j) the Shareholder has not authorized any person to act as broker or finder or other intermediary, other than ▇▇▇▇▇ and Company, LLC, is entitled to in any broker’s, finder’s, financial advisor’s or other similar fee or commission for which ION or the Company is or will be liable capacity in connection with the transactions contemplated hereby based upon arrangements made by orthis Agreement, that in any manner may or will impose liability on Lexington or the Purchaser; and
(k) to the knowledge of such the Shareholder, on behalf no representation or warranty of such Shareholderthe Shareholder contained in this Agreement contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading.
Appears in 1 contract
Sources: Share Exchange Agreement
Representations and Warranties of the Shareholders. Each Shareholder hereby represents and warrants to the Company (severally, and ION solely not jointly, as to itself and severally and not jointly only) to CGAC as follows:
(a) Such Except as disclosed on Schedule 2 hereto, such Shareholder is the only record and sole beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of, and has good, valid and marketable title to, the to or has a valid proxy to vote such Shareholder’s Covered Shares, free and clear of Liens any liens (other than as created by this Agreement, Agreement or the Investors’ Rights Agreement and Permitted LiensOrganizational Documents of the Company). As of the date hereof, other than the Owned SharesShares set forth opposite such Shareholder’s name on Schedule 1, such Shareholder does not own beneficially or of record any share capital of ION Company Shares (or any securities, including warrants exercisable, securities convertible into Company Shares) or exchangeable into share capital of ION)any interest therein.
(b) Such Shareholder (i) Shareholder, in each case except as provided in this AgreementAgreement or the Organizational Documents of the Company, (i) has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth hereinherein whether by ownership or by proxy, in each case, with respect to such Shareholder’s Covered Shares, (ii) has not entered into any voting agreement or voting trust or trust, and has no knowledge and is not aware of any other such voting agreement or arrangement, including any proxy, consent or power of attorney, voting trust in effect with respect to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations pursuant to this Agreement, and has no knowledge and is not aware of any such proxy or power of attorney in effect, and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement, and has no knowledge and is not aware of any such agreement or undertaking.
(c) Such Shareholder affirms that (i) if the Shareholder is a natural person, he or she has the legal capacity and all the requisite power and authority and has taken all action necessary in order to execute and deliver this Agreement, to perform his or her obligations hereunder and to consummate the transaction contemplated hereby, and (ii) if the Shareholder is not a natural person, it (A) is a legal entity duly organized, validly existing and, to the extent such concept is applicable, in good standing under the Applicable Legal Requirements Laws of the jurisdiction of its organization, and (iiB) has all requisite corporate or other power and authority and has taken all corporate or other action necessary in order to, execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by such Shareholder and, subject to the due execution and delivery of this Agreement by each other Party hereto, constitutes a legally valid and binding agreement of such Shareholder enforceable against such the Shareholder in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and the terms hereof (except as enforceability may be limited by bankruptcy Laws or other similar Applicable Legal Requirements Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equityequity affecting the availability of specific performance and other equitable remedies).
(d) Other than the filings, notices and reports pursuant to, in compliance with or required to be made under the Exchange Act, if any, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of waiting periods or authorizations are required to be obtained by such Shareholder from, or to be given by such Shareholder to, or be made by such Shareholder with, any Governmental Entity Authority in connection with the execution, delivery and performance by such Shareholder of this Agreement, the consummation of the transactions contemplated hereby or the Merger and Business Combination or the other transactions contemplated by the Merger Business Combination Agreement.
(e) The execution, delivery and performance of this Agreement by such Shareholder do does not, and the consummation of the transactions contemplated hereby or and the Merger Business Combination and the other transactions contemplated by the Merger Business Combination Agreement will not, constitute or result in (i) a breach or violation of, or a default under, the Organizational Documents of such Shareholder (if such Shareholder is not a natural person), (ii) with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss of any benefit under, the creation, modification or acceleration of any obligations under or the creation of a Lien Security Interest on any of the properties, rights or assets of such Shareholder pursuant to any Contract binding upon such Shareholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby), ) compliance with the matters referred to in Section 6(d4(d), under any Applicable Legal Requirements applicable Law to which such Shareholder is subject or (iii) any change in the rights or obligations of any party under any Contract legally binding upon such Shareholder, except, in the case of clause (ii) or (iii) directly above, for any such breach, violation, termination, default, creation, acceleration or change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair such Shareholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger Business Combination or the other transactions contemplated by the Merger Business Combination Agreement.
(f) As of the date of this Agreement, there is no action, proceeding or investigation Action pending against such Shareholder or, to the knowledge of such Shareholder, threatened against such Shareholder that that, in any manner, questions the beneficial or record ownership of such the Shareholder’s Owned Shares, that would reasonably be expected to question Covered Shares or the validity of this Agreement Agreement, or challenges or seeks to prevent or materially impairprevent, enjoin or materially delay the ability of performance by such Shareholder to perform of its obligations under this Agreement or to consummate the transactions contemplated herebyAgreement.
(g) Such The Shareholder is a sophisticated stockholder shareholder and has adequate information concerning the business and financial condition of CGAC and the Company and ION to make an informed decision regarding this Agreement and the other transactions contemplated by the Merger Business Combination Agreement and has independently and independently, based on such information as such the Shareholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. Such The Shareholder acknowledges that CGAC and the Company and ION have not made and do not make any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement. Such The Shareholder acknowledges that the agreements contained herein with respect to the Covered Shares owned held by such the Shareholder are irrevocable.
(h) Such Shareholder understands and acknowledges that ION and the Company are CGAC is entering into the Merger Business Combination Agreement in reliance upon such Shareholder’s execution and delivery of this Agreement and the representations, warranties, covenants and other agreements of such Shareholder contained herein.
(i) No investment banker, broker, finder or other intermediary, other than ▇▇▇▇▇ and Company, LLC, intermediary is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which ION CGAC or the Company is or will could be liable in connection with the Business Combination Agreement or this Agreement or any of the respective transactions contemplated hereby or thereby, in each case based upon arrangements made by such Shareholder in his, her or its capacity as a shareholder or, to the knowledge of such Shareholder, on behalf of such ShareholderShareholder in his, her or its capacity as a shareholder.
(j) Such Shareholder is not, nor is owned or controlled by or acting on behalf of, nor is represented by any authorized person who is, a Prohibited Person.
Appears in 1 contract
Sources: Voting and Support Agreement (Corner Growth Acquisition Corp.)
Representations and Warranties of the Shareholders. Each Shareholder of the Shareholders, on its own behalf and not on behalf of any other Shareholder, hereby severally (and, for greater certainty, not jointly with any other Shareholder) represents and warrants to the Company Purchaser as follows and ION solely as to itself acknowledges that the Purchaser is relying on such representations and severally and not jointly as followswarranties in connection with the transactions contemplated herein:
(a) Such Shareholder is the only record and beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) ofthis Agreement has been, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement, the Investors’ Rights Agreement and Permitted Liens. As of the date hereof, other than the Owned Shares, such Shareholder does not own beneficially or of record any share capital of ION (or any securities, including warrants exercisable, convertible or exchangeable into share capital of ION).
(b) Such Shareholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to such Shareholder’s Covered Shares, (ii) has not entered into any voting additional agreement or voting trust or any other agreement or arrangement, including any proxy, consent or power of attorney, with respect instrument required to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations be delivered pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations pursuant to this Agreement, and has no knowledge and is not aware of any such proxy or power of attorney in effect, and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement, and has no knowledge and is not aware of any such agreement or undertaking.
(c) Such Shareholder (i) is a legal entity duly organized, validly existing and, Agreement will be prior to the extent such concept is applicableTime of Closing, in good standing under the Applicable Legal Requirements of the jurisdiction of its organizationduly authorized, and (ii) has all requisite corporate or other power and authority and has taken all corporate or other action necessary in order to, execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by such the Shareholder and constitutes each is, or will be at the Time of Closing, a legal, valid and binding agreement obligation of such Shareholder the Shareholder, enforceable against such the Shareholder in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Applicable Legal Requirements affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.;
(db) Other than if the filingsShareholder is not an individual, notices and reports pursuant to, in compliance with or required to be made the Shareholder is validly existing under the Exchange Act, if any, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations laws of waiting periods its jurisdiction of organization and has the corporate or authorizations are required other power to be obtained by such Shareholder fromenter into this Agreement and any other agreement to which it is, or is to be given by such Shareholder tobecome, or be made by such Shareholder with, any Governmental Entity in connection with a party to pursuant to the execution, delivery terms hereof and performance by such Shareholder of this Agreement, the consummation of the transactions contemplated hereby or the Merger to perform its obligations hereunder and the other transactions contemplated by the Merger Agreement.thereunder;
(ec) The execution, the execution and delivery and performance of this Agreement by such Shareholder do does not, and the consummation of the transactions contemplated hereby Transaction will not violate any provision of any applicable law or regulation or any judicial or administrative order, award, judgment or decree applicable to the Merger Shareholder;
(d) the Shareholder is the registered and beneficial owner of that number of common shares of MindLeap set forth opposite the Shareholder’s name in Schedule “A” (such common share comprising part of the Purchased Shares), free and clear of all Liens, charges, mortgages, security interests, pledges, demands, claims and other transactions contemplated encumbrances of any nature whatsoever;
(e) except for the Purchaser’s rights hereunder, no person has any agreement or option or any right or privilege capable of becoming an agreement for the purchase of the common shares of MindLeap (namely the Purchased Shares), held or beneficially owned by the Merger Agreement will not, constitute or result in (i) a breach or violation of, or a default under, the Organizational Documents of such Shareholder (if such Shareholder is not a natural person), (ii) with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss of any benefit under, the creation, modification or acceleration of any obligations under or the creation of a Lien on any of the properties, rights or assets of such Shareholder pursuant to any Contract binding upon such Shareholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 6(d), under any Applicable Legal Requirements to which such Shareholder is subject or (iii) any change in the rights or obligations of any party under any Contract legally binding upon such Shareholder, except, in the case of clause (ii) or (iii) directly above, for any such breach, violation, termination, default, creation, acceleration or change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair such Shareholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger or the other transactions contemplated by the Merger Agreement.;
(f) As of no consent, approval, order or authorization of, or registration or declaration with, any applicable Governmental Authority with jurisdiction over the date of this Agreement, there is no action, proceeding or investigation pending against such Shareholder or, to the knowledge of such Shareholder, threatened against such Shareholder that questions the beneficial or record ownership of such Shareholder’s Owned Shares, that would reasonably be expected to question the validity of this Agreement or to prevent or materially impair, enjoin or delay the ability of such Shareholder to perform its obligations under this Agreement or to consummate the transactions contemplated hereby.
(g) Such Shareholder is a sophisticated stockholder and has adequate information concerning the business and financial condition of the Company and ION required to make an informed decision regarding this Agreement and the other transactions contemplated be obtained by the Merger Agreement and has independently and based on such information as such Shareholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Shareholder acknowledges that in connection with the Company and ION have not made and do not make any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement. Such Shareholder acknowledges that the agreements contained herein with respect to the Covered Shares owned by such Shareholder are irrevocable.
(h) Such Shareholder understands and acknowledges that ION and the Company are entering into the Merger Agreement in reliance upon such Shareholder’s execution and delivery of this Agreement or the consummation by the Shareholder of the Transaction, except for those consents, orders, authorizations, declarations, registrations or approvals which are contemplated by this Agreement or those consents, orders, authorizations, declarations, registrations or approvals that, if not obtained, would not prevent or materially delay the consummation of the Transaction or otherwise prevent the Shareholder from performing its obligations under this Agreement;
(g) except as Disclosed by the Shareholder to the Purchaser the Shareholder is not a “non- resident” of Canada within the meaning of the Tax Act;
(h) Non-Resident Shareholders represent, warrant and/or acknowledge, as applicable, that:
i. the Payment Shares issuable hereunder have not been and will not be registered under the representationsSecurities Laws of any foreign jurisdiction and that the issuance of the Payment Shares pursuant to the terms of this Agreement is being made in reliance on applicable exemptions; and
ii. the receipt of the Payment Shares by Non-Resident Shareholders does not contravene any of the applicable securities legislation in the jurisdiction in which it is resident and does not trigger: (i) any obligation to prepare and file a prospectus or similar document, warranties, covenants or any other report with respect to such transfer; and (ii) any registration or other agreements obligation on the part of such Shareholder contained herein.Purchaser;
(i) No investment banker, broker, the Shareholder has not authorized any person to act as broker or finder or other intermediary, other than ▇▇▇▇▇ and Company, LLC, is entitled to in any broker’s, finder’s, financial advisor’s or other similar fee or commission for which ION or the Company is or will be liable capacity in connection with the transactions contemplated hereby based upon arrangements made by orthis Agreement, that in any manner may or will impose liability on MindLeap or the Purchaser; and
(j) to the knowledge of such the Shareholder, on behalf no representation or warranty of such Shareholderthe Shareholder contained in this Agreement contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading.
Appears in 1 contract
Sources: Share Exchange Agreement
Representations and Warranties of the Shareholders. Each Shareholder of the Shareholders, on its own behalf and not on behalf of any other Shareholder, hereby severally (and, for greater certainty, not jointly with any other Shareholder) represents and warrants to the Company Purchaser as follows and ION solely as to itself acknowledges that the Purchaser is relying on such representations and severally and not jointly as followswarranties in connection with the transactions contemplated herein:
(a) Such Shareholder is the only record and beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) ofthis Agreement has been, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement, the Investors’ Rights Agreement and Permitted Liens. As of the date hereof, other than the Owned Shares, such Shareholder does not own beneficially or of record any share capital of ION (or any securities, including warrants exercisable, convertible or exchangeable into share capital of ION).
(b) Such Shareholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to such Shareholder’s Covered Shares, (ii) has not entered into any voting additional agreement or voting trust or any other agreement or arrangement, including any proxy, consent or power of attorney, with respect instrument required to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations be delivered pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations pursuant to this Agreement, and has no knowledge and is not aware of any such proxy or power of attorney in effect, and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement, and has no knowledge and is not aware of any such agreement or undertaking.
(c) Such Shareholder (i) is a legal entity duly organized, validly existing and, Agreement will be prior to the extent such concept is applicableClosing Time, in good standing under the Applicable Legal Requirements of the jurisdiction of its organizationduly authorized, and (ii) has all requisite corporate or other power and authority and has taken all corporate or other action necessary in order to, execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by such the Shareholder and constitutes each is, or will be at the Closing Time, a legal, valid and binding agreement obligation of such Shareholder the Shareholder, enforceable against such the Shareholder in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Applicable Legal Requirements affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.;
(db) Other than if the filingsShareholder is not an individual, notices and reports pursuant to, in compliance with or required to be made the Shareholder is validly existing under the Exchange Act, if any, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations laws of waiting periods its jurisdiction of organization and has the corporate or authorizations are required other power to be obtained by such Shareholder fromenter into this Agreement and any other agreement to which it is, or is to be given by such Shareholder tobecome, or be made by such Shareholder with, any Governmental Entity in connection with a party to pursuant to the execution, delivery terms hereof and performance by such Shareholder of this Agreement, the consummation of the transactions contemplated hereby or the Merger to perform its obligations hereunder and the other transactions contemplated by the Merger Agreement.thereunder;
(ec) The execution, the execution and delivery and performance of this Agreement by such Shareholder do does not, and the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Merger Agreement Transaction will not, constitute or result in : (i) if the Shareholder is not an individual, result in a breach or violation ofof the articles or by-laws of the Shareholder (or other constating documents of the Shareholder) or of any resolutions of the directors or shareholders of the Shareholder, or a default under, the Organizational Documents of such Shareholder (if such Shareholder is not a natural person), (ii) with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss violate any provision of any benefit underapplicable law or regulation or any judicial or administrative order, award, judgment or decree applicable to the creationShareholder;
(d) the Shareholder is the registered and beneficial owner of that number of Beyond Oil Shares, modification or acceleration of any obligations under or as the creation of a Lien on any case may be, set forth opposite the Shareholder’s name in Schedule “A” (such Beyond Oil Shares comprising part of the propertiesPurchased Shares), free and clear of all Liens;
(e) except for the Purchaser’s rights hereunder, no person has any agreement or assets option or any right or privilege capable of becoming an agreement for the purchase of the Beyond Oil Shares (namely the Purchased Shares) held or beneficially owned by the Shareholder and none of such Shareholder pursuant Beyond Oil Shares are subject to any Contract binding upon such Shareholder orvoting trust, assuming (solely shareholders agreement, voting agreement or other agreement with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 6(d), under any Applicable Legal Requirements to which such Shareholder is subject disposition or (iii) any change in the rights or obligations enjoyment of any party under any Contract legally binding upon rights of such ShareholderBeyond Oil Shares;
(f) there is no pending or threatened legal, exceptadministrative, in arbitral or other proeceding, claim, mediation, suit or action, or governmental, regulatory or similar investigation or audit against the case of clause (ii) or (iii) directly above, for any such breach, violation, termination, default, creation, acceleration or change Shareholder that would not, individually or in the aggregate, could reasonably be expected to prevent or materially delay or impair such have an effect on the Shareholder’s ability to perform its obligations hereunder Beyond Oil Shares, or to consummate otherwise that may have the effect of challenging, preventing, delaying, making illegal or otherwise interfering with the transactions contemplated hereby, the consummation of the Merger or the other transactions contemplated by the Merger Agreement.
(f) As of the date of under this Agreement, there is no action, proceeding or investigation pending against such Shareholder or, to the knowledge of such Shareholder, threatened against such Shareholder that questions the beneficial or record ownership of such Shareholder’s Owned Shares, that would reasonably be expected to question the validity of this Agreement or to prevent or materially impair, enjoin or delay the ability of such Shareholder to perform its obligations under this Agreement or to consummate the transactions contemplated hereby.;
(g) Such no consent, approval, order or authorization of, or registration or declaration with, any applicable Governmental Authority with jurisdiction over the Shareholder is a sophisticated stockholder and has adequate information concerning the business and financial condition of the Company and ION required to make an informed decision regarding this Agreement and the other transactions contemplated be obtained by the Merger Agreement and has independently and based on such information as such Shareholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Shareholder acknowledges that in connection with the Company and ION have not made and do not make any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement. Such Shareholder acknowledges that the agreements contained herein with respect to the Covered Shares owned by such Shareholder are irrevocable.
(h) Such Shareholder understands and acknowledges that ION and the Company are entering into the Merger Agreement in reliance upon such Shareholder’s execution and delivery of this Agreement or the consummation by the Shareholder of the Transaction, except for those consents, orders, authorizations, declarations, registrations or approvals which are contemplated by this Agreement or those consents, orders, authorizations, declarations, registrations or approvals that, if not obtained, would not prevent or materially delay the consummation of the Transaction or otherwise prevent the Shareholder from performing its obligations under this Agreement;
(h) the respective diligence materials provided in written form, if any, whether in a data room or via alternate electronic deliveries, including e-mail and similar applications, provided by the representations, warranties, covenants Shareholder to the Purchaser or Beyond Oil for the purpose of determining the terms of the Transaction are true and other agreements of such Shareholder contained herein.correct in all material respects;
(i) No investment bankerthe Shareholder is a “non-resident” of Canada within the meaning of the Tax Act, brokerand Purchased Shares do not constitute “taxable Canadian property” within the meaning of the Tax Act;
(j) if the Shareholder is a holder of any Target PubCo Options, finder such Shareholder remains eligible to hold the Target PubCo Options under the terms of the Beyond Oil Option Plan. Such Shareholder has not committed any act or omission which would result in the termination of the Target PubCo Options or any default under the terms of any agreement or certificate governing the Target PubCo Options or the Beyond Oil Option Plan. Such Shareholder further has not encumbered in any way, or granted any rights to another party, with respect to the Target PubCo Options;
(k) where a person is an owner or holder of Target Pubco Options, or will otherwise and in any capacity receive Resulting Issuer Options, restricted shares or other intermediarypayment or deliverable of any description in accordance with this Agreement, other than ▇▇▇▇▇ as mere owner of Purchased Shares, such person has not provided any services of any description at any time in Canada, and Companyfor greater certainty is not receiving any such Resulting Issuer Options, LLCrestricted shares or other payment or deliverable (as the case may be) in respect of services rendered or to be rendered in Canada;
(l) the offer to purchase the Shareholder’s Purchased Shares, as the case may be, was not made to the Shareholder when either the Shareholder or any beneficial purchaser for whom it is acting, if applicable, was in the United States;
(m) the Shareholder is not a U.S. Person, is entitled not in the United States and is not acquiring the applicable Payment Shares on behalf of, or for the account or benefit of, a U.S. Person or a person in the United States;
(n) at the time this Agreement was executed and delivered by the Shareholder, the Shareholder was outside the United States;
(o) if the Shareholder is a corporation or entity: (A) a majority of the Shareholder’s voting equity is beneficially owned by persons resident outside the United States; and (B) the Shareholder’s affairs are wholly controlled and directed from outside of the United States;
(p) the Shareholder or any beneficial purchaser for whom it is acting, if applicable, has no intention to distribute either directly or indirectly any broker’sof the Payment Shares in the United States, finder’sexcept in compliance with the United States. Securities Act of 1933;
(q) the current structure of this transaction and all transactions and activities contemplated in this Agreement is not a scheme to avoid the registration requirements of the United States Securities Act of 1933 and any applicable state securities laws;
(r) other than the Finders, financial advisor’s the Shareholder has not authorized any person to act as broker or finder or in any other similar fee or commission for which ION or the Company is or will be liable capacity in connection with the transactions contemplated hereby based upon arrangements made by orthis Agreement, that in any manner may or will impose liability on Beyond Oil or the Purchaser; and
(s) no representation or warranty of the Shareholder contained in this Agreement contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading. Each of the Shareholders acknowledges and agrees that the Shareholders Representatives must deliver a certificate to the knowledge of such Shareholder, Purchaser on behalf of all Shareholders at the Closing Time certifying that the above representations and warranties remain true and correct as at the Closing Time, and as such Shareholdereach Shareholder agrees to immediately alert the Shareholders Representatives of any circumstance that would or may cause one of the representations and warranties contained in this Section 6.02 to be false, misleading, or incomplete in any manner whatsoever.
Appears in 1 contract
Sources: Share Purchase Agreement
Representations and Warranties of the Shareholders. Each Shareholder of the Shareholders, on its own behalf and not on behalf of any other Shareholders, hereby severally (and, for greater certainty, not jointly with any other Shareholders) represents and warrants to the Company Purchaser as follows and ION solely as to itself acknowledges that the Purchaser is relying on such representations and severally and not jointly as followswarranties in connection with the transactions contemplated herein:
(a) Such Shareholder is the only record and beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) ofthis Agreement has been, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement, the Investors’ Rights Agreement and Permitted Liens. As of the date hereof, other than the Owned Shares, such Shareholder does not own beneficially or of record any share capital of ION (or any securities, including warrants exercisable, convertible or exchangeable into share capital of ION).
(b) Such Shareholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to such Shareholder’s Covered Shares, (ii) has not entered into any voting additional agreement or voting trust or any other agreement or arrangement, including any proxy, consent or power of attorney, with respect instrument required to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations be delivered by the Shareholder pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations pursuant to this Agreement, and has no knowledge and is not aware of any such proxy or power of attorney in effect, and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement, and has no knowledge and is not aware of any such agreement or undertaking.
(c) Such Shareholder (i) is a legal entity duly organized, validly existing and, Agreement will be prior to the extent such concept is applicableTime of Closing, in good standing under the Applicable Legal Requirements of the jurisdiction of its organizationduly authorized, and (ii) has all requisite corporate or other power and authority and has taken all corporate or other action necessary in order to, execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by such Shareholder the Shareholders and constitutes each is, or will be at the Time of Closing, a legal, valid and binding agreement obligation of such Shareholder the Shareholders, enforceable against such Shareholder the Shareholders in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Applicable Legal Requirements affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.;
(db) Other than if the filingsShareholder is not an individual, notices and reports pursuant to, in compliance with or required to be made the Shareholder is validly existing under the Exchange Act, if any, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations laws of waiting periods its jurisdiction of organization and has the corporate or authorizations are required other power to be obtained by such Shareholder fromenter into this Agreement and any other agreement to which it is, or is to be given by such Shareholder tobecome, or be made by such Shareholder with, any Governmental Entity in connection with a party to pursuant to the execution, delivery terms hereof and performance by such Shareholder of this Agreement, the consummation of the transactions contemplated hereby or the Merger to perform its obligations hereunder and the other transactions contemplated by the Merger Agreement.thereunder;
(ec) The execution, the execution and delivery and performance of this Agreement by such Shareholder do does not, and the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Merger Agreement Transaction will not, constitute or result in (i) if the Shareholder is not an individual, result in a breach or violation ofof the articles or by-laws of the Shareholder (or other constating documents of the Shareholder) or of any resolutions of the directors or shareholders of the Shareholder, or a default under, the Organizational Documents of such Shareholder (if such Shareholder is not a natural person), (ii) with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss violate any provision of any benefit underapplicable law or regulation or any judicial or administrative order, award, judgment or decree applicable to the creationShareholder;
(d) the Shareholder is the registered and beneficial owner of that number of ▇▇▇▇ ▇▇▇▇▇▇, modification or acceleration as the case may be, set forth opposite the Shareholder’s name in Schedule “A” (such common shares comprising part of the Purchased Shares), free and clear of all liens, charges, mortgages, security interests, pledges, demands, claims and other encumbrances of any obligations under nature whatsoever;
(e) except for the Purchaser’s rights hereunder, no person has any agreement or option or any right or privilege capable of becoming an agreement for the creation of a Lien on any purchase of the properties, rights Purchased Shares held or assets beneficially owned by the Shareholder and none of such Shareholder pursuant ▇▇▇▇ ▇▇▇▇▇▇ are subject to any Contract binding upon such Shareholder orvoting trust, assuming (solely shareholders agreement, voting agreement or other agreement with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 6(d), under any Applicable Legal Requirements to which such Shareholder is subject disposition or (iii) any change in the rights or obligations enjoyment of any party under any Contract legally binding upon rights of such Shareholder, except, in the case common shares of clause (ii) or (iii) directly above, for any such breach, violation, termination, default, creation, acceleration or change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair such Shareholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger or the other transactions contemplated by the Merger Agreement.Boba;
(f) As of no consent, approval, order or authorization of, or registration or declaration with, any applicable Governmental Authority with jurisdiction over the date of this Agreement, there is no action, proceeding or investigation pending against such Shareholder or, to the knowledge of such Shareholder, threatened against such Shareholder that questions the beneficial or record ownership of such Shareholder’s Owned Shares, that would reasonably be expected to question the validity of this Agreement or to prevent or materially impair, enjoin or delay the ability of such Shareholder to perform its obligations under this Agreement or to consummate the transactions contemplated hereby.
(g) Such Shareholder is a sophisticated stockholder and has adequate information concerning the business and financial condition of the Company and ION required to make an informed decision regarding this Agreement and the other transactions contemplated be obtained by the Merger Agreement and has independently and based on such information as such Shareholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Shareholder acknowledges that in connection with the Company and ION have not made and do not make any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement. Such Shareholder acknowledges that the agreements contained herein with respect to the Covered Shares owned by such Shareholder are irrevocable.
(h) Such Shareholder understands and acknowledges that ION and the Company are entering into the Merger Agreement in reliance upon such Shareholder’s execution and delivery of this Agreement and or the representationsconsummation by the Shareholder of the Transaction, warrantiesexcept for those consents, covenants and other agreements orders, authorizations, declarations, registrations or approvals which are contemplated by this Agreement or those consents, orders, authorizations, declarations, registrations or approvals that, if not obtained, would not prevent or materially delay the consummation of such the Transaction or otherwise prevent the Shareholder contained herein.from performing its obligations under this Agreement;
(g) the Shareholder is not a U.S. Shareholder and:
(i) No investment bankerthe offer to purchase the Shareholder’s Purchased Shares was not made to the Shareholder when either the Shareholder or any beneficial purchaser for whom it is acting, brokerif applicable, was in the United States;
(ii) the Shareholder is not a U.S. Person, is not in the United States and is not acquiring the applicable Payment Shares on behalf of, or for the account or benefit of, a U.S. Person or a person in the United States;
(iii) at the time this Agreement was executed and delivered by the Shareholder, the Shareholder was outside the United States;
(iv) if the Shareholder is a corporation or entity, (A) a majority of the Shareholder’s voting equity is beneficially owned by persons resident outside the United States; and (B) the Shareholder’s affairs are wholly controlled and directed from outside of the United States;
(v) the Shareholder or any beneficial purchaser for whom it is acting, if applicable, has no intention to distribute either directly or indirectly any of the Payment Shares in the United States, except in compliance with the U.S. Securities Act; and
(vi) the current structure of this transaction and all transactions and activities contemplated in this Agreement is not a scheme by the Shareholder to avoid the registration requirements of the U.S. Securities Act and any applicable state securities laws;
(h) the Shareholder has not authorized any person to act as broker or finder or other intermediary, other than ▇▇▇▇▇ and Company, LLC, is entitled to in any broker’s, finder’s, financial advisor’s or other similar fee or commission for which ION or the Company is or will be liable capacity in connection with the transactions contemplated hereby based upon arrangements made by orthis Agreement, that in any manner may or will impose liability on Boba or the Purchaser; and
(i) to the knowledge of such the Shareholder, on behalf no representation or warranty of such Shareholderthe Shareholder contained in this Agreement contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading.
Appears in 1 contract
Sources: Share Exchange Agreement
Representations and Warranties of the Shareholders. Each Shareholder of the Shareholders, and their respective Affiliates, hereby represents and warrants to the Company and ION solely as to itself and severally and not jointly as follows:
(a) Such Shareholder is The Shareholders have the only record and beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement, the Investors’ Rights Agreement and Permitted Liens. As of the date hereof, other than the Owned Shares, such Shareholder does not own beneficially or of record any share capital of ION (or any securities, including warrants exercisable, convertible or exchangeable into share capital of ION).
(b) Such Shareholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to such Shareholder’s Covered Shares, (ii) has not entered into any voting agreement or voting trust or any other agreement or arrangement, including any proxy, consent or power of attorney, with respect to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations pursuant to this Agreement, and has no knowledge and is not aware of any such proxy or power of attorney in effect, and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement, and has no knowledge and is not aware of any such agreement or undertaking.
(c) Such Shareholder (i) is a legal entity duly organized, validly existing and, to the extent such concept is applicable, in good standing under the Applicable Legal Requirements of the jurisdiction of its organization, and (ii) has all requisite corporate or other power and authority and has taken all corporate or other action necessary in order to, to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly executed The Shareholders are competent to execute and delivered by such Shareholder and constitutes a valid and binding agreement of such Shareholder enforceable against such Shareholder in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Applicable Legal Requirements affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.
(d) Other than the filings, notices and reports pursuant to, in compliance with or required to be made under the Exchange Act, if any, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of waiting periods or authorizations are required to be obtained by such Shareholder from, or to be given by such Shareholder to, or be made by such Shareholder with, any Governmental Entity in connection with the execution, delivery and performance by such Shareholder of deliver this Agreement, the consummation of to perform their obligations hereunder and to consummate the transactions contemplated hereby or the Merger and the other transactions contemplated by the Merger Agreement.
(e) hereby. The execution, delivery and performance of this Agreement by such Shareholder do not, the Shareholders and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Shareholders and this Agreement has been duly executed and delivered by or on behalf of the Merger Shareholders and constitutes a valid and legally binding obligation of the Shareholders, enforceable against each Shareholder in accordance with its terms;
(b) The Shareholders are the beneficial owner of 6,683,540 shares of Company Common Stock and such Shares constitute the Shareholders’ entire interest in the outstanding Company Common Stock. No person or entity not a signatory to this Agreement has a beneficial interest in or a right to acquire the Shares or any portion of the Shares. As of the date hereof, all of the Shares are free and clear of any liens, claims, encumbrances, mortgages, security interests and charges of any nature whatsoever; and
(c) The execution and delivery of this Agreement by the Shareholders does not, and the other transactions contemplated performance of this Agreement by the Merger Agreement Shareholders will not, constitute or result in (i) a breach require any consent, approval, authorization or violation permit of, or a default underfiling with or notification to, any Governmental Entity or any other person by the Organizational Documents Shareholder, except (A) as provided in the Merger Agreement, or (B) filings with the SEC of such Shareholder (if such Shareholder is not a natural person), (ii) reports or other furnished or filed materials under the Exchange Act as may be required in connection with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss of any benefit under, the creation, modification or acceleration of any obligations under or the creation of a Lien on any of the properties, rights or assets of such Shareholder pursuant to any Contract binding upon such Shareholder or, assuming (solely with respect to performance execution and delivery of this Agreement and the transactions contemplated hereby); (ii) conflict with, compliance or result in any violation of, or default (with the matters referred to in Section 6(d), or without notice or lapse of time or both) under any Applicable Legal Requirements provision of, the Company’s Articles of Incorporation, Bylaws or any other agreement to which such Shareholder is subject any of the Shareholders are a party, including any prior proxy, voting agreement, shareholder agreement, voting trust, trust agreement, pledge agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise or license; or (iii) conflict with or violate any change judgment, order, notice, decree, statute, law, ordinance, rule or regulation applicable to any of the Shareholders or to any of the Shareholders’ property or assets, except in the rights or obligations cases of any party under any Contract legally binding upon such Shareholder, except, in the case of clause (ii) or and (iii) directly above, for any above where such breach, violation, termination, default, creation, acceleration conflicts or change that violations would not, individually or in the aggregate, not reasonably be expected to prevent or materially impede or delay or impair such Shareholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger or the other transactions contemplated by the Merger Agreement.
(f) As of the date of this Agreement, there is no action, proceeding or investigation pending against such Shareholder or, to the knowledge of such Shareholder, threatened against such Shareholder that questions the beneficial or record ownership of such Shareholder’s Owned Shares, that would reasonably be expected to question the validity of this Agreement or to prevent or materially impair, enjoin or delay the ability consummation of such Shareholder to perform its obligations under this Agreement or to consummate the transactions contemplated hereby.
(g) Such Shareholder is a sophisticated stockholder and has adequate information concerning the business and financial condition of the Company and ION to make an informed decision regarding this Agreement and the other transactions contemplated by the Merger Agreement and has independently and based on such information as such Shareholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Shareholder acknowledges that the Company and ION have not made and do not make any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement. Such Shareholder acknowledges that the agreements contained herein with respect to the Covered Shares owned by such Shareholder are irrevocable.
(h) Such Shareholder understands and acknowledges that ION and the Company are entering into the Merger Agreement in reliance upon such Shareholder’s execution and delivery of this Agreement and the representations, warranties, covenants and other agreements of such Shareholder contained herein.
(i) No investment banker, broker, finder or other intermediary, other than ▇▇▇▇▇ and Company, LLC, is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which ION or the Company is or will be liable in connection with the transactions contemplated hereby based upon arrangements made by or, to the knowledge of such Shareholder, on behalf of such Shareholder.
Appears in 1 contract
Sources: Shareholder Voting and Support Agreement (Zones Inc)
Representations and Warranties of the Shareholders. Each Shareholder of the Shareholders hereby represents and warrants to the Company and ION solely Ultimate, as to itself and severally and not jointly himself only, as follows:
(a) Such Except as set forth on Annex A, such Shareholder is the only record and beneficial owner (within of the meaning Shares shown as owned by him on Annex A of Rule 13d-3 under the Exchange Act) ofthis Agreement, and has good, valid good and marketable title to, the Covered to such Shares, has all necessary power and authority to enter into this Agreement, and such Shares are free and clear of Liens any and all claims, liens, charges, encumbrances and security interests other than as created by this Agreement, the Investors’ Rights Agreement and Permitted Liens. As shown on Annex A. None of the date hereofShares owned by him are subject to any proxy, voting trust or other agreement or arrangement with respect to the voting of such Shares, other than the Owned Shares, such Shareholder does not own beneficially or of record any share capital of ION (or any securities, including warrants exercisable, convertible or exchangeable into share capital of ION)pursuant to this Agreement.
(b) Such Shareholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power to issue instructions with respect to the matters set forth herein, in each case, with respect to such Shareholder’s Covered Shares, (ii) has not entered into any voting agreement or voting trust or any other agreement or arrangement, including any proxy, consent or power of attorney, with respect to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of such Shareholder’s Covered Shares that is inconsistent with such Shareholder’s obligations pursuant to this Agreement, and has no knowledge and is not aware of any such proxy or power of attorney in effect, and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement, and has no knowledge and is not aware of any such agreement or undertaking.
(c) Such Shareholder (i) is a legal entity duly organized, validly existing and, to the extent such concept is applicable, in good standing under the Applicable Legal Requirements of the jurisdiction of its organization, and (ii) has all requisite corporate or other power and authority and has taken all corporate or other action necessary in order to, execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by such Shareholder and constitutes a is the legal, valid and binding agreement of such Shareholder Shareholder, enforceable against such Shareholder him in accordance with its terms, subject to applicable except as such validity, binding effect or enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and or other similar Applicable Legal Requirements affecting laws relating to creditors’ ' rights generally and subjectexcept that the availability of equitable remedies, as including specific performance, is subject to enforceabilitythe discretion of the court before which any proceeding therefor may be brought.
(c) The execution of this Agreement by such Shareholder does not, and the performance by him of his obligations hereunder will not, constitute a violation of, conflict with or result in a default under any contract, commitment, agreement, understanding, arrangement, statute or restriction of any kind to general principles which he is a party or by which he or any of equityhis property is bound or any judgment, decree or order applicable to him.
(d) Other than Neither the filingsexecution and delivery of this Agreement, notices and reports pursuant to, in compliance with or required to be made under nor the Exchange Act, if any, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of waiting periods or authorizations are required to be obtained by such Shareholder from, or to be given by such Shareholder to, or be made by such Shareholder with, any Governmental Entity in connection with the execution, delivery and performance by such Shareholder of this Agreementhis obligations hereunder will violate any provision of law applicable to him, except for the consummation requirements, if any, of the transactions contemplated hereby or the Merger federal and the other transactions contemplated by the Merger Agreementstate securities laws.
(e) The execution, delivery and performance of this Agreement by such Shareholder do not, and the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Merger Agreement will not, constitute or result in (i) a breach or violation of, or a default under, the Organizational Documents of such Shareholder (if such Shareholder is not a natural person), (ii) with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss of any benefit under, the creation, modification or acceleration of any obligations under or the creation of a Lien Shares shown on any of the properties, rights or assets of such Shareholder pursuant to any Contract binding upon such Shareholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 6(d), under any Applicable Legal Requirements to which such Shareholder is subject or (iii) any change in the rights or obligations of any party under any Contract legally binding upon such Shareholder, except, in the case of clause (ii) or (iii) directly above, for any such breach, violation, termination, default, creation, acceleration or change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair such Shareholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of the Merger or the other transactions contemplated by the Merger Agreement.
(f) As of the date of this Agreement, there is no action, proceeding or investigation pending against such Shareholder or, to the knowledge of such Shareholder, threatened against such Shareholder that questions the beneficial or record ownership of such Shareholder’s Owned Shares, that would reasonably be expected to question the validity of this Agreement or to prevent or materially impair, enjoin or delay the ability of such Shareholder to perform its obligations under this Agreement or to consummate the transactions contemplated hereby.
(g) Such Shareholder is a sophisticated stockholder and has adequate information concerning the business and financial condition of the Company and ION to make an informed decision regarding this Agreement and the other transactions contemplated by the Merger Agreement and has independently and based on such information said Annex A as such Shareholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Shareholder acknowledges that the Company and ION have not made and do not make any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement. Such Shareholder acknowledges that the agreements contained herein with respect to the Covered Shares owned by such Shareholder are irrevocable.
(h) Such Shareholder understands and acknowledges that ION and the Company are entering into the Merger Agreement in reliance upon such Shareholder’s execution and delivery only securities of this Agreement and the representationsAudio King owned by him, warranties, covenants and other agreements beneficially or of such Shareholder contained herein.
(i) No investment banker, broker, finder or other intermediaryrecord, other than ▇▇▇▇▇ and Company, LLC, is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which ION or options shown on Section 1.4(e) of the Company is Disclosure Letter (as defined in the Merger Agreement), and he owns no other options to purchase or will be liable in connection with the transactions contemplated hereby based upon arrangements made by or, rights to the knowledge subscribe for or otherwise acquire any securities of such Shareholder, on behalf of such ShareholderAudio King.
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