Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby represents and warrants to the Company and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) that: (a) Such Shareholder is duly organized and validly existing as a legal entity under the laws of its jurisdiction of organization, with full power and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements. (b) The Principal Agreements to which such Shareholder is a party have been duly and validly authorized, executed and delivered by such Shareholder and constitute the legal, valid and binding obligations of such Shareholder, enforceable against such Shareholder in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and by general equitable principles (whether applied by a court of law or equity). (c) The execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not: (i) conflict with or constitute a breach of any of the terms or provisions of, or a default under, such Shareholder's constitutive documents; (ii) conflict with or constitute a breach of any covenant, agreement, understanding or Authorization to which such Shareholder is a party or by which such Shareholder or any of its Assets and Properties is bound; or (iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Properties. (d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority. (e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action. (f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder). (g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder. (h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements. (i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements. (j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 5 contracts
Sources: Shareholders Agreement (Nye Telenor East Invest As), Shareholders Agreement (Open Joint Stock Co Long Distance & Internat Comm Rostelecom), Shareholders Agreement (Alfa Telecom LTD)
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby represents and warrants to the Company Parent and the other Shareholders Merger Sub as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thatfollows:
(a) Such Shareholder is duly organized the record and validly existing as a beneficial owner, or the beneficial owner, of the shares of Common Stock (together with any shares of Common Stock which such Shareholder may acquire at any time on or after the date hereof during the term of this Agreement, the “Shares”) set forth opposite Shareholder’s name on Schedule I to this Agreement. Schedule I lists separately all options, warrants or other rights to purchase Common Stock held by Shareholder (“Options”).
(b) Shareholder has the legal entity under the laws of its jurisdiction of organization, with full power capacity to execute and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party this Agreement and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreementshereby.
(bc) The Principal Agreements to which such Shareholder is a party have This Agreement has been duly and validly authorized, executed and delivered by such Shareholder and constitute constitutes the legal, valid and binding obligations obligation of such Shareholder, enforceable against such Shareholder in accordance with their its terms, except subject, as such enforceability may be limited by to enforceability, to bankruptcy, insolvency, reorganization, moratorium insolvency and other Laws of general applicability relating to or similar laws affecting creditors' ’ rights and remedies generally and by to general equitable principles (whether applied by a court of law or equity)equity principles.
(cd) The execution, Neither the execution and delivery and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and this Agreement nor the consummation by such Shareholder of the transactions contemplated thereby hereby will not:
(i) conflict with or constitute result in a breach of any of the terms or provisions violation of, or a default under, such Shareholder's constitutive documents;
(ii) or conflict with or constitute a breach of with, any covenantcontract, trust, commitment, agreement, understanding understanding, arrangement or Authorization restriction of any kind to which such Shareholder is a party or by which such Shareholder or any Shareholder’s assets are bound. Except for compliance with the applicable provisions of its Assets Sections 13 and Properties is bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder 16 of the Principal Agreements to which it is a partyExchange Act, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby hereby will not violate, or require any consent, approval, Authorization, other order or action of, filing with or notice under, any provision of any judgment, order, decree, statute, law, rule or regulation applicable to any Governmental or Regulatory AuthorityShareholder.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of The Shares owned, the certificates representing the Shares it owns or controlsheld of record, beneficially or otherwiseand, is subjectto the Shareholder’s knowledge, which the certificates representing the Shares owned, but not held of record, by Shareholder are now, and at all times during the term hereof will result inbe, held by Shareholder, or could reasonably be expected to result in, by a nominee or custodian for the issuance benefit of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liensliens, claims, security interests, proxies, voting trusts or agreements, options, rights, understandings or arrangements whatsoeveror any other encumbrances whatsoever on title, transfer, or exercise of any rights of a shareholder in respect of such Shares, except for those any of the foregoing arising under the Principal Agreementsthis Agreement.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 5 contracts
Sources: Tender and Voting Agreement, Tender and Voting Agreement (Stryker Corp), Tender and Voting Agreement (Stryker Corp)
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby Shareholder, severally and not jointly, represents and warrants to the Company and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thatfollows:
(a) Such Shareholder Shareholder, if not a natural person, is a corporation, limited partnership, limited liability company or other entity duly organized and organized, validly existing as a legal entity and in good standing under the laws of its the jurisdiction of organizationits formation.
(b) Such Shareholder (i) is competent, with if he is a natural person, and (ii) has the full power and authority to execute, deliver and perform its obligations under carry out the Principal Agreements to which it is a party terms and provisions of this Agreement and to consummate the transactions contemplated therebyhereby and has taken all necessary action to authorize the execution, delivery and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreementsperformance of this Agreement.
(bc) The Principal Agreements to which such Shareholder is a party have This Agreement has been duly and validly authorized, executed and delivered by such Shareholder and constitute the legal, valid and binding obligations of such Shareholder, enforceable against such Shareholder in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and by general equitable principles (whether applied by a court of law or equity).
(cd) The execution, execution and delivery and performance of this Agreement by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby hereby by such Shareholder will not:
(i) not conflict with or constitute a with, result in the breach of any of the terms or provisions conditions of, or constitute a default under or violate, accelerate or permit the acceleration of any other similar right of any other party under, the organizational documents of such Shareholder's constitutive documents;
(ii) conflict with , if it is not a natural person, any law, rule or constitute a breach of regulation or any covenant, agreement, understanding lease, mortgage, note, bond, indenture, license or Authorization other document or undertaking, to which such Shareholder is a party or by which such Shareholder or its properties may be bound, nor will such execution, delivery and consummation violate any order, writ, injunction or decree of its Assets and Properties is bound; or
(iii) violate any federal, state, local or conflict with any law applicable foreign court, administrative agency or governmental or regulatory authority or body to such which the Shareholder or any of his or its Assets and Properties.
(d) Except as specified in Schedule 2.1(d)properties are subject, the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity effect of any of the Principal Agreements which, either individually or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects aggregate, would impair the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Actionhereunder.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 4 contracts
Sources: Shareholders Agreement (US BioEnergy CORP), Shareholders Agreement (US BioEnergy CORP), Shareholders Agreement (US BioEnergy CORP)
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby Shareholder, by its acceptance hereof, represents and warrants to the Company as follows and expressly acknowledges that Symmetry and Acquisitionco are relying upon such representations and warranties in connection with entering into this Agreement and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thatArrangement Agreement:
(a) Such (i) such Shareholder is duly organized the beneficial owner of, or controls or directs the voting rights in respect of, the Shareholder Securities listed immediately below such Shareholder’s Acceptance, (ii) the only Company Shares beneficially owned, or over which control or direction is exercised by such Shareholder are those listed immediately below such Shareholder’s Acceptance, (iii) the Shareholder Securities are free and clear of any and all Encumbrances, and (iv) the registered shareholder of the Shareholder Securities listed immediately below such Shareholder’s Acceptance is the registered Shareholder of such Shareholder Securities;
(b) such Shareholder has the sole right to sell, or cause the sale of, and vote, or control and direct the voting rights in respect of all of the Shareholder Securities listed immediately below such Shareholder’s Acceptance;
(c) all of the Subject Shares beneficially held by such Shareholder will, at the Effective Time, be beneficially owned by such Shareholder with good and marketable title thereto, free and clear of any and all Encumbrances and are and will at such time be issued and outstanding as fully paid and non-assessable shares of the Company;
(d) no person, firm or corporation has any agreement or option, or any right or privilege (whether by Law, pre-emptive or contractual) capable of becoming an agreement or option, for the purchase, acquisition or transfer from such Shareholder of any of its Subject Shares or any interest therein or right thereto, except Acquisitionco pursuant to this Agreement;
(e) such Shareholder does not beneficially own or exercise control or direction over any Convertible Securities and such Shareholder has no agreement or option, or right or privilege (whether by law, pre-emptive or contractual) capable of becoming an agreement or option, for the purchase or acquisition by such Shareholder or transfer to such Shareholder of Convertible Securities;
(f) the execution and delivery by such Shareholder of this Agreement, the authorization of this Agreement by such Shareholder (if such Shareholder is a corporation or trust), and the performance by such Shareholder of its obligations under this Agreement, shall not result in: (i) a breach or violation of any of the provisions of, or constitute a default under, or conflict with or cause the acceleration of any obligation of such Shareholder under (A) any contract to which such Shareholder or any of its assets are or may be bound, (B) if such Shareholder is a corporation or trust, any provision of the constating documents, by-laws, or resolutions of the board of directors or trustees, as applicable, (or any committee thereof) or shareholders or unitholders, as applicable, of such Shareholder, (C) any judgment, decree, order or award of any Governmental Entity having jurisdiction over such Shareholder, (D) any license, permit, approval, consent or authorization held by such Shareholder, or (E) any applicable Law, or (ii) the creation or imposition of any Encumbrance on any of the Subject Shares;
(g) if such Shareholder is a corporation or trust, such Shareholder is a corporation or trust validly existing as a legal entity under the laws Laws of its jurisdiction of incorporation or organization, with full as applicable, and has all necessary power and authority to execute, execute and deliver this Agreement and to perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.hereunder;
(bh) The Principal Agreements to which such Shareholder is a party have this Agreement has been duly and validly authorized, executed and delivered by such Shareholder and constitute the constitutes a legal, valid and binding obligations obligation of such Shareholder, enforceable against such Shareholder in accordance with their its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws insolvency and other Laws affecting the enforcement of creditors' ’ rights and remedies generally and by general subject to the qualification that equitable principles (whether applied by remedies may only be granted in the discretion of a court of law or equity).
(c) The execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not:competent jurisdiction;
(i) conflict with there are no shareholders’ agreements, voting trusts or constitute a breach of any of the terms or provisions ofother agreements, or any right or privilege (whether by Law, pre-emptive or contractual) capable of becoming a default under, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of any covenant, shareholders’ agreement, understanding voting trust or Authorization to which such Shareholder is a party other agreement, affecting the Subject Shares or by which such Shareholder or any of its Assets and Properties is bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of any holder thereof to exercise all ownership rights thereto, including the voting of any such Shareholder to perform its obligations thereundersecurities; and
(j) there are no legal proceedings in progress before any public body, (ii) court or authority or, to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts pending or circumstances known to threatened against such Shareholder that would be expected adversely affect in any manner the ability of such Shareholder to give rise enter into this Agreement and to perform its obligations hereunder or the title of such Shareholder to any of the Subject Shares and there is no judgment, decree or order against such Action.Shareholder that would adversely affect in any manner the ability of such Shareholder to enter into this Agreement and to perform its obligations hereunder or the title of such Shareholder to any of the Subject Shares; and
(fk) Such none of such Shareholder is or any person not dealing at “arms length” (within the record holder and beneficial owner meaning of the Shares described opposite Income Tax Act (Canada)) with such Shareholder's name on Schedule 1 (Shareholder beneficially owns, directly or indirectly, any securities of Symmetry or any property deriving its value in whole or in the Endorsement executed by such Shareholder)part from securities of Symmetry.
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 4 contracts
Sources: Lock Up Agreement (Symmetry Holdings Inc), Lock Up Agreement (Symmetry Holdings Inc), Lock Up Agreement (Symmetry Holdings Inc)
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby represents and warrants to the Company Purchaser, severally and the other Shareholders not jointly, as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thatset forth below:
(a) Such Shareholder is duly organized the record and validly existing beneficial owner (as a legal entity defined in Rule 13d-3 under the laws Exchange Act) of the shares of Common Stock set forth opposite his or its jurisdiction name on Schedule 1 to this Agreement (such shares of organizationCommon Stock, together with any Common Stock acquired by the Shareholder after the date of this Agreement, whether such Shares are acquired by way of exercise of Company Options or other rights to purchase Common Stock or by way of dividend, distribution, exchange, merger, consolidation, grant of proxy or otherwise, but excluding shares owned by other Shareholders, all as may be adjusted from time to time pursuant to Section 8 hereof, the “Shares”). Schedule 1 to this Agreement lists separately all Company Options issued to such Shareholder. Such Shareholder is the record and beneficial owner of the Company Options set forth opposite such Shareholder’s name on Schedule 1 to this Agreement.
(b) Such Shareholder has voting power and power to agree to all of the matters regarding such Shareholder set forth in this Agreement, in each case with respect to all of the Shares, with full power no limitations, qualifications or restrictions on such right. Such Shareholder is not the record or beneficial owner of any securities of the Company on the date hereof other than the Shares and authority the Company Options set forth on Schedule 1.
(c) Such Shareholder has the legal capacity to execute, execute and deliver and perform its obligations under the Principal Agreements to which it is a party this Agreement and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under hereby regarding such Principal AgreementsShareholder.
(bd) The Principal Agreements to which such Shareholder is a party have This Agreement has been duly and validly authorized, executed and delivered by such Shareholder and, assuming due and constitute valid authorization, execution and delivery thereof by Purchaser and Merger Sub, constitutes the legal, valid and binding obligations obligation of such Shareholder, enforceable against such Shareholder in accordance with their its terms, except (i) as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, and (ii) the availability of the remedy of specific performance or similar laws affecting creditors' rights injunctive or other forms of equitable relief may be subject to equitable defenses and remedies generally and by general equitable principles (whether applied by a would be subject to the discretion of the court of law or equity)before which any proceeding therefor may be brought.
(ce) The execution, Neither the execution and delivery and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and this Agreement nor the consummation by such Shareholder of the transactions contemplated thereby hereby will not:
(i) conflict with or constitute result in a breach of any of the terms or provisions violation of, or constitute (with or without due notice or lapse of time or both) a default under, such Shareholder's constitutive documents;
(ii) or conflict with with, or constitute a breach give rise to any right of termination, cancellation or acceleration under any covenantcontract, trust, note, bond, mortgage, indenture, license, agreement, understanding or Authorization material contractual restriction or obligation of any kind to which such Shareholder is a party or by which such Shareholder or any of his or its Assets and Properties is Shares are bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, singularly or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially aggregate, would prevent or adversely affects affect the ability of such Shareholder to perform his or its obligations thereunderunder this Agreement. The consummation of the transactions contemplated hereby will not violate, or require any consent, approval or notice (iiexcept those required under applicable securities laws) to the knowledge under, any provision of such Shareholderany judgment, no such Action is threatenedorder, and (iii) there are no facts injunction, decree, statute, law, rule or circumstances known regulation applicable to such Shareholder that which, singularly or in the aggregate, would be expected prevent or adversely affect the ability of such Shareholder to give rise to any such Actionperform his or its obligations under this Agreement.
(f) Such The Shares owned by such Shareholder is are now, and at all times during the record holder term hereof will be, held by such Shareholder or by a nominee or custodian for the benefit of such Shareholder, free and beneficial owner clear of all liens, claims, security interests, proxies, voting trusts, agreements, options, rights, understandings or arrangements or any other encumbrances whatsoever on title, transfer or exercise of any rights of a Shareholder in respect of such Shares (collectively, “Encumbrances”), except for any such Encumbrances arising hereunder, and the transfer of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed held by such Shareholder)Shareholder hereunder will effectively vest in Merger Sub valid and marketable title to such Shares, free and clear of any Encumbrances.
(g) Such If Shareholder’s Shares constitute are subject to community property interests under the only shares laws of capital stock any jurisdiction, such Shareholder has agreed to have executed and delivered to Purchaser such consents, waivers and approvals as are necessary for the execution of this Agreement and the approval and consummation of the Company owned of record or beneficially by transactions contemplated hereby regarding such Shareholder.
(h) Except as specified Such Shareholder understands and acknowledges that Purchaser and Merger Sub are entering into the Merger Agreement in the Principal Agreements reliance upon such Shareholder’s execution and Schedule 2.1(h), such Shareholder has sole power delivery of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreementsthis Agreement.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 3 contracts
Sources: Shareholders Agreement (Ault Inc), Shareholders Agreement (Sl Industries Inc), Shareholders Agreement (Sl Industries Inc)
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby represents and warrants to the Company and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thatfollows:
(a) Such Shareholder (i) is as of the date hereof, and, except as otherwise permitted pursuant to Section 1 hereof, shall be at all times during the term of this Agreement, the indirect or direct beneficial owner of the Subject Shares set forth opposite such Shareholders’ name on Schedule A hereto (and AY Holdings is the indirect record owner through the registered holder which is Computershare DR Nominees Limited with respect to 7,405,262 Subject Shares and Cede & Co. with respect to 41,557,663 Subject Shares), free and clear of any Liens (other than (1) Permitted Liens, (2) Liens granted to one or more finance providers in connection with any financing facility to which the Shareholder and/or any of its Affiliates is a party, (3) written restrictions on transfer under applicable securities Laws, (4) this Agreement, (5) the Shareholders Agreement and (6) the Enhanced Cooperation Agreement; provided that such Liens shall not prevent, inhibit or restrict such Shareholder’s or any of its Affiliates’ ability to enter into this Agreement or vote in accordance with Section 2), and (ii) does not, nor do any of its Affiliates, own of record or beneficially own any Company Shares (or any securities convertible into or exercisable or exchangeable or redeemable for any Company Shares) other than as set forth opposite its name on Schedule A. Schedule A sets forth a true and complete list of all of the Subject Shares as of the date hereof.
(b) Except with respect to obligations under the Company Organizational Documents, as applicable, AY Holdings has, as of the date hereof and will have at all times through the termination of this Agreement in accordance with Section 6, the sole right to Transfer, to vote (or cause to vote) and to direct (or cause to direct) the voting of the Subject Shares beneficially owned by the Shareholders as of the date hereof, and none of such Subject Shares are subject to any proxy, voting trust or other Contract, arrangement or restriction with respect to the Transfer or the voting of the Subject Shares (other than as set forth in the Shareholders Agreement and Enhanced Cooperation Agreement (but which such Contracts shall not prevent, inhibit or restrict such Shareholder’s or any of its Affiliates’ compliance with this Agreement (including Section 2), and restrictions on transfer under applicable securities Laws), except as set forth in this Agreement or the Transaction Agreement. Neither the Shareholders nor any of their Affiliates have entered into any Contract that is inconsistent with the terms of this Agreement or would in any way restrict, limit or interfere with the performance of the Shareholders’ obligations hereunder.
(c) Such Shareholder (i) is duly organized and organized, validly existing as a legal entity and in good standing under the laws Laws of its jurisdiction of organizationCanada or Netherlands, with full as applicable, and (ii) has the requisite corporate, company, partnership or other power and authority to executeexecute and deliver this Agreement, deliver and to perform its obligations under the Principal Agreements to which it is a party hereunder and to consummate the transactions contemplated thereby, hereby and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute comply with the terms hereof. The execution and deliver or perform its obligations under such Principal Agreements.
(b) The Principal Agreements to which such Shareholder is a party have been duly and validly authorized, executed and delivered delivery of this Agreement by such Shareholder and constitute the legal, valid and binding obligations of such each Shareholder, enforceable against such Shareholder in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and by general equitable principles (whether applied by a court of law or equity).
(c) The execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such each Shareholder of the transactions contemplated thereby hereby and the compliance by each Shareholder with the provisions hereof have been duly authorized by all requisite corporate, company, partnership or other action on the part of each Shareholder, and no other corporate, company, partnership or other organizational proceedings on the part of each Shareholder are necessary to authorize this Agreement, to consummate the transactions contemplated hereby or to comply with the provisions hereof.
(d) This Agreement has been duly and validly executed and delivered by each Shareholder, constitutes a valid and binding obligation of each Shareholder and, assuming due authorization, execution and delivery by ▇▇▇▇▇ and the Company, is enforceable against each Shareholder in accordance with its terms, subject to any Enforceability Exceptions.
(e) The execution and delivery of this Agreement, the consummation of the transactions contemplated hereby and compliance with the provisions hereof do not and will not:
not conflict with, or result in (i) conflict with any violation or constitute a breach of any of the terms or provisions of, or a default (with or without notice or lapse of time, or both) under, such Shareholder's constitutive documents;
any provision of the organizational documents of a Shareholder (ii) any violation or breach of, default (with or without notice or lapse of time, or both) under or conflict with any (1) Law or constitute (2) Action applicable to a breach of Shareholder or its properties or assets, or (3) any covenant, agreement, understanding Contract or Authorization other legally binding instrument or obligation to which such Shareholder is a party or by which such Shareholder or any its assets are bound, in the case of its Assets and Properties is bound; or
each of clauses (iii1) violate or conflict with any law applicable to such Shareholder or any of its Assets and Properties.
through (d) Except as specified in Schedule 2.1(d3), to the executionextent such violation, delivery and breach or other action would prevent, enjoin or materially delay the performance by such Shareholder of its obligations under this Agreement or the Principal Agreements actions of any of its Affiliates that such Shareholder has agreed to which procure. No Consent of, or registration, declaration, notice or filing with, any Governmental Authority is necessary, under Applicable Law, for the consummation by the Shareholders of the transactions contemplated by this Agreement.
(f) With respect to each Shareholder, as of the date hereof, there is no Action pending against or, to the knowledge of such Shareholder, threatened in writing against it is a party, or any of its assets (including the compliance Subject Shares beneficially owned by such Shareholder with all of the provisions thereof and Shareholder) before or by any Governmental Authority that would reasonably be expected to prevent or materially delay or impair the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of by this Agreement and the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins Transaction Agreement or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the impair such Shareholder’s ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder)hereunder.
(g) Such Shares constitute No broker, finder, investment banker, financial advisor, or other Person is entitled to any brokerage, finder’s or other similar fee or commission, or the only shares reimbursement of capital stock of expenses, from Bidco, the Company owned or their Affiliates (other than the Shareholders) in connection with the transactions contemplated hereby or by the Transaction Agreement based upon arrangements made by or on behalf of record or beneficially by such a Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 3 contracts
Sources: Voting and Transaction Support Agreement (Algonquin Power & Utilities Corp.), Voting and Transaction Support Agreement (Atlantica Sustainable Infrastructure PLC), Transaction Agreement (Atlantica Sustainable Infrastructure PLC)
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby individually represents and warrants to the Company and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders Closing as of the date on which such Person executes such Endorsement) thatfollows:
(a) Such Shareholder has good and marketable title to, and sole record and beneficial ownership of, the number of the Shares set forth opposite such Shareholder's name on Exhibit A hereto, which are to be transferred to the Company pursuant to this Agreement, free and clear of any and all covenants, conditions, marital property rights, and other Encumbrances.
(b) If Shareholder is an entity, Shareholder has been duly organized incorporated or formed and is validly existing as a legal entity in good standing under the laws of its jurisdiction state of organizationincorporation or formation. Whether an individual or an entity, with full Shareholder has the right, power and authority to executeenter into this Agreement and any ancillary agreements hereto, deliver to transfer, convey and sell to the Company at the Closing the Shares to be sold to the Company by such Shareholder, and otherwise perform its obligations under this Agreement and any ancillary agreements. Upon consummation of the Principal Agreements to which it is a party Closing, the Company will acquire from such Shareholder the legal and to consummate the transactions contemplated therebybeneficial ownership of, and is not required all right to vote and other rights inhering in the Shares to be qualified as a foreign corporation sold to the Company by such Shareholder, free and clear of all covenants, conditions, marital property rights, or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal AgreementsEncumbrances.
(bc) The Principal Agreements Shareholder is not a party to, subject to which such or bound by any Law or Order, and no Action is pending against Shareholder or, to Shareholder's knowledge, threatened, that would prevent the execution, delivery or performance of this Agreement by Shareholder or the transfer, conveyance and sale of the Shares to be sold by Shareholder to the Company pursuant to the terms hereof.
(d) This Agreement has been duly authorized by all necessary corporate, partnership or limited liability company action on the part of Shareholder, and if Shareholder is a party have corporation, partnership or limited liability company, this Agreement has been duly and validly authorized, executed and delivered by such Shareholder and constitute the legal, is a valid and binding obligations obligation of such Shareholder, enforceable against such Shareholder in accordance with their its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or and other similar laws affecting limiting creditors' rights and remedies generally and by general equitable principles (whether applied by a court of law or equity)principles.
(ce) The executionNeither the execution and delivery of this Agreement, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and nor the consummation by such Shareholder of the transactions contemplated thereby hereby by Shareholder violates or will not:
(i) conflict with violate or constitute results or will result in a breach of any of the terms or and provisions of, or constitutes or will constitute a default under, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of under any covenant, agreement, understanding or Authorization material Contract to which such Shareholder is a party or by is bound or which such applies to the Shares being sold, or any Order applicable to Shareholder or any of its Assets and Properties is bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Propertiesthe Shares being sold.
(df) Except as specified in Schedule 2.1(d)If and to the extent required, Shareholder hereby consents to the execution, delivery and performance of this Agreement by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, each other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute Shareholder will acquire the only shares Promissory Note for investment for Shareholder's own accounts and not with a view to or for offer or sale in connection with any distribution thereof. Shareholder understands that the Promissory Note will not be registered under the Securities Act of capital stock 1933, as amended (the "Securities Act") or any applicable state securities laws by reason of a specific exemption or exception from the registration requirements thereof which depend upon, among other things, the accuracy of Shareholder's representations and warranties in this Section. Shareholder understands that the Promissory Note will bear a legend substantially to the effect that the Promissory Note may not be transferred without the prior consent of the Company owned (which shall not be unreasonably withheld) and has not been registered under the Securities Act or any applicable state securities laws and may be offered and sold only if so registered or upon delivery to the Company of record an opinion of counsel that an exemption or beneficially by exception from such Shareholderregistration is applicable.
(h) Except as specified Shareholder acknowledges receipt of all information requested from the Company and considered by Shareholder to be necessary or appropriate for deciding whether to sell the Shares and acquire the Promissory Note pursuant to this Agreement, including, without limitation, any documents filed by the Company with the Securities and Exchange Commission. Shareholder is an "accredited investor" within the meaning of Rule 501(a) under the Securities Act or has such knowledge and experience in financial and business matters that Shareholder is capable of evaluating the merits and risks of, and Shareholder is able to bear the economic risks of, selling such Shares of Common Stock and acquiring such Shareholder's interest in the Principal Agreements and Schedule 2.1(h), such Promissory Note. Shareholder has sole power of disposition had the opportunity to ask questions and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and receive answers regarding the terms and conditions of the Principal Agreements.
(i) Except as specified sale of the Shares and the acquisition of an interest in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated Promissory Note pursuant to the Termination this Agreement, neither and Shareholder is satisfied with the responsiveness and adequacy of such answers. Shareholder nor any of its Affiliates has entered into any agreement, arrangement understands and acknowledges that events or understanding with (i) any one circumstances may occur after the date hereof that may be favorable or more of the Shareholders or any of their respective Affiliates with respect to matters relating unfavorable to the Company's earnings, its management business affairs or any Shares operations, and that such events or (ii) circumstances may result in changes in the Company, any fair market value of its Affiliates or managementthe Shares.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Lewis Robert E), Stock Purchase Agreement (Lewis Randall W), Stock Purchase Agreement (Kb Home)
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby Shareholder, severally and not jointly, represents and warrants to the Company and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders Shareholders, as of the date on which hereof or as of the date such Person executes such Endorsement) Shareholder becomes a party hereto, that:
(a) Such Shareholder is an entity duly organized and validly existing as a legal entity under the laws Laws of the jurisdiction of its jurisdiction of organization, with .
(b) Such Shareholder has full power and authority to executeenter into, deliver and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its this Agreement. The execution and delivery of this Agreement and the performance of the rights and obligations under such Principal Agreements.
(b) The Principal Agreements to which such Shareholder is a party hereunder have been duly and validly authorized, executed and delivered authorized by such Shareholder and constitute no other proceedings by or on behalf of such Shareholder will be necessary to authorize this Agreement or the legal, performance of the rights and obligations hereunder. This Agreement constitutes the valid and binding obligations of such Shareholder, Shareholder enforceable against such Shareholder it in accordance with their its terms, except as such the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium reorganization or other similar laws Laws affecting enforcement of creditors' ’ rights and remedies generally and by (ii) subject to general equitable principles (whether applied by a court of law or equity).
(c) The execution, delivery and performance of this Agreement by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not:
not (i) conflict with violate (A) the Organizational Documents of such Shareholder or constitute (B) any Law, treaty, rule or regulation applicable to or binding upon such Shareholder or any of its properties or assets or (ii) result in a breach of any of the terms or provisions of, or a default under, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of any covenant, agreement, understanding or Authorization contractual obligation to which such Shareholder is a party or by which such Shareholder it or any of its Assets and Properties properties or assets is bound; or
, in the case of each of clauses (iiii)(B) violate or conflict with and (ii) in any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could respect that would reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects have a material adverse effect on the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Actionunder this Agreement.
(fd) Such Shareholder is In the record holder case of Itaú Parent and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h)Corp Group Parent, such Shareholder has sole power of disposition and sole voting power with respect to all such Sharesowns, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in date hereof, directly or indirectly, the Principal Agreements shares of Company Stock of Company One and Schedule 2.1(i)Company Two, such Shares are held respectively, free and clear of all LiensEncumbrances of any kind on the right to vote or Transfer such shares and has the sole power, proxiesauthority and legal capacity to vote and Transfer such shares and in the case of Company One and Company Two, voting trusts such Company owns, as of the date hereof, the shares of the Chilean Bank referred to in the Recitals free and clear of all Encumbrances of any kind on the right to vote or agreementsTransfer such shares and (together with Itaú Parent and Corp Group Parent) has the sole power, understandings authority and legal capacity to vote and Transfer such shares (in each case other than Encumbrances in favor of the other Shareholder or arrangements whatsoever, except for those arising under the Principal Agreementsits Affiliates).
(je) Except for the Principal Agreements representations and the agreements terminated pursuant to the Termination Agreementwarranties contained in this Section 7.19, neither no such Shareholder Shareholder, nor any other Person or entity acting on behalf of its Affiliates has entered into such Shareholder, makes any agreementrepresentation or warranty, arrangement express or understanding with (i) implied to any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or managementother Shareholder.
Appears in 3 contracts
Sources: Shareholder Agreement, Transaction Agreement (Corpbanca/Fi), Shareholder Agreement (Corpbanca/Fi)
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof jointly and severally hereby represents and warrants to the Company and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thatfollows:
(a) Such Shareholder is duly organized and validly existing as a legal entity under the laws of its jurisdiction of organization, with full has all necessary power and authority to execute, deliver enter into this Agreement and to perform its such Shareholder’s obligations under the Principal Agreements to which it is a party this Agreement. The execution, delivery and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.
(b) The Principal Agreements to which performance of this Agreement by such Shareholder is a party have been duly and validly authorized, authorized by such Shareholder. This Agreement has been duly executed and delivered by such each Shareholder and constitute (assuming the legaldue authorization, execution and delivery by the Company) constitutes a valid and binding obligations obligation of such Shareholder, enforceable against such Shareholder in accordance with their its terms, except as such enforceability may be to the extent enforcement is limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or similar laws affecting creditors' ’ rights and remedies generally and by to general equitable principles (whether applied by considered in a court of proceeding at law or in equity).
(b) The Securities and the certificates (or any book-entry notations used to represent any uncertificated Parent Shares) representing the Securities are now, and at all times during the term hereof will be, held by such Shareholder, or by a nominee or custodian for the benefit of such Shareholder, and such Shareholder has title to the Securities, free and clear of all encumbrances, except as provided by this Agreement and other than the agreement dated August 31, 2015 between Parent and the Shareholders (the “MVS Agreement”). As of the date of this Agreement, such Shareholder owns of record or beneficially no Parent Share, Multiple Voting Share or any other share capital of, or any other equity interests in, Parent, other than the Securities set forth across from such Shareholder’s name on Exhibit A hereto and other than Parent Shares owned by FFHL Share Option 1 Corp. for purposes of Parent’s and its Subsidiaries share option plans. Such Shareholder has full power to vote the Securities as provided herein.
(c) The Neither the execution, delivery and performance of this Agreement by such Shareholder of the Principal Agreements to which it is a party, nor compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not:
(i) conflict with or constitute a breach of any of the terms or provisions ofhereof will (i) trigger any rights of first refusal, preemptive rights, preferential purchase or a default undersimilar rights, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of any covenant, agreement, understanding or Authorization to which such Shareholder is a party or by which such Shareholder or any of its Assets and Properties is bound; or
(iii) violate or conflict with any law Law applicable to such Shareholder or any of its Assets and Properties.
Securities, (diii) Except as specified result in Schedule 2.1(d)the creation of any lien, pledge, security interest, charge or other encumbrance upon the execution, delivery and performance by such Shareholder of Securities or (iv) require the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order Order or action authorization of, waiver from, or registration, declaration, notice or filing with or notice to any Governmental or Regulatory Authority.
(e) Entity, except, with respect to clauses (i) There is no Action pending to which through (iii), for any such Shareholder is a party triggers, violations, conflicts or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) wouldother occurrences that would not, or would not reasonably be expected to, result in the issuance of an order which prevent or materially adversely affects impair or delay the ability of such Shareholder to perform its obligations thereunderhereunder.
(d) Such Shareholder understands and acknowledges that the Company is entering into the Merger Agreement in reliance upon such Shareholder’s execution and delivery of this Agreement.
(e) The information relating to such Shareholder and its Affiliates provided by or on behalf of such Shareholder or its Affiliates for inclusion in the Proxy Statement or the Parent Registration Statement will not (i) on the date the Proxy Statement or any amendment or supplement thereto is first mailed to the shareholders of the Company, (ii) to at the knowledge time of such Shareholder, no such Action is threatenedthe Company Shareholder Meeting, and (iii) there are no facts at the time the Parent Registration Statement or any amendment or supplement thereto becomes effective, contain, with respect to information supplied by such Shareholder, any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances known under which they were made, not misleading. Each Shareholder authorizes and agrees to permit the Company to publish and disclose in the Proxy Statement and any Other Company Filings such Shareholder that would be expected to give rise to Shareholder’s identity and ownership of Securities and the nature of its commitments, arrangements and understandings under this Agreement and any such Actionother information required by applicable Law.
(f) Such Shareholder There is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (no Action pending against or threatened in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), writing against such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or managementRepresentatives which, if determined or resolved adversely in accordance with the plaintiff’s or claimant’s demands, would reasonably be expected to prevent or materially delay the ability of such Shareholder to perform its obligations hereunder.
Appears in 2 contracts
Sources: Parent Shareholder Voting Agreement (Fairfax Financial Holdings LTD/ Can), Parent Shareholder Voting Agreement (Allied World Assurance Co Holdings, AG)
Representations and Warranties of the Shareholders. Each Shareholder, as to such Shareholder party hereto on the date hereof (severally and not jointly and severally), hereby represents and warrants to the Company Parent and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders Merger Sub as of the date on which such Person executes such Endorsement) thathereof as follows:
(a) Such Shareholder is duly organized the beneficial owner of, and validly existing as a legal entity under has good and valid title to, the laws Covered Shares, free and clear of its jurisdiction all Liens that would materially and adversely affect the ability of organizationsuch Shareholder to perform his, with full power and authority to execute, deliver and perform her or its obligations under this Agreement other than as created by this Agreement and pursuant to applicable securities Laws. As of the Principal Agreements to which it is a party date hereof, other than the Owned Shares (and to consummate any equity awards relating thereto, including any Class B Units), such Shareholder does not own beneficially or of record any shares of capital stock (including common shares of beneficial interest) or voting securities of the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal AgreementsCompany.
(b) The Principal Agreements Each Shareholder that is an individual has all requisite power and authority, and each Shareholder that is an entity has all requisite entity power and authority, to which execute and deliver this Agreement and to perform such Shareholder is a party have Shareholder’s obligations hereunder. This Agreement has been duly and validly authorized, executed and delivered by such Shareholder and, assuming due authorization, execution and constitute the delivery by Parent and Merger Sub, constitutes a legal, valid and binding obligations obligation of such Shareholder, enforceable against such Shareholder in accordance with their its terms, except as such enforceability enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ rights and remedies generally and by general equitable principles of equity (regardless of whether applied by considered in a court of law proceeding in equity or equityat law).
(c) The Except for the applicable requirements of the Exchange Act, (i) no filing with, and no permit, authorization, consent or approval of, any Governmental Authority is necessary on the part of such Shareholder for the execution, delivery and performance of this Agreement by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and or the consummation by such Shareholder of the transactions contemplated thereby will not:
hereby and (iii) conflict neither the execution, delivery or performance of this Agreement by such Shareholder nor the consummation by such Shareholder of the transactions contemplated hereby nor compliance by such Shareholder with any of the provisions hereof shall (A) result in any breach or violation of, or constitute a breach default (or an event which, with notice or lapse of time or both, would become a default) under, or give to others any rights of the terms termination, amendment, acceleration or provisions cancellation of, or result in the creation of a default underLien on such property or asset of such Shareholder pursuant to, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of any covenant, agreement, understanding or Authorization Contract to which such Shareholder is a party or by which such Shareholder or any property or asset of its Assets and Properties such Shareholder is bound; or
bound or affected or (iiiB) violate any order, writ, injunction, decree, statute, rule or conflict with any law regulation applicable to such Shareholder or any of such Shareholder’s properties or assets, in each case other than as would not restrict, prohibit or impair the exercise by Parent or Merger Sub of its Assets and Propertiesrights under this Agreement or have an adverse effect on such Shareholder’s ability to perform its obligations hereunder.
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder As of the Principal Agreements to which it is a partydate of this Agreement, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There there is no Action litigation pending to which against any such Shareholder is a party or to which any of the Shares it owns or controlsShareholder, beneficially or otherwiseor, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to threatened against such Shareholder that restricts or prohibits (or, if successful, would be expected to give rise to restrict or prohibit) the exercise by Parent or Merger Sub of its rights under this Agreement or the performance by any such ActionShareholder of such Shareholder’s obligations under this Agreement.
(fe) Such Shareholder is understands and acknowledges that Parent and Merger Sub are entering into the record holder and beneficial owner of the Shares described opposite Merger Agreement in reliance upon such Shareholder's name on Schedule 1 (or in ’s execution and delivery of this Agreement and the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares representations and warranties of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreementscontained herein.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 2 contracts
Sources: Voting Agreement (Fortress Investment Group LLC), Voting Agreement (J. Alexander's Holdings, Inc.)
Representations and Warranties of the Shareholders. Each -------------------------------------------------- Shareholder party hereto on the date hereof hereby severally represents and warrants warrants, as to such Shareholder, to Merger Sub as follows:
a. Except as described on Schedule I hereto, such Shareholder is the record and beneficial owner of the shares of Common Stock ("Shares") set forth next to such Shareholder's name on Exhibit A attached hereto and such Shares constitute all of the shares of capital stock of the Company and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date owned by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders such Shareholder as of the date on which such Person executes such Endorsement) that:
(a) Such Shareholder is duly organized and validly existing as a legal entity under the laws of its jurisdiction of organization, with full power and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreementshereof.
(b) The Principal Agreements to which such Shareholder is a party have b. This Agreement has been duly and validly authorized, executed and delivered by such Shareholder and constitute constitutes the legal, valid and binding obligations obligation of such Shareholder, enforceable against such Shareholder in accordance with their its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or and other similar laws affecting relating to creditors' rights and remedies generally and by to general equitable principles (whether applied by a court of law or equity).
(c) The execution, c. Neither the execution and delivery and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and this Agreement nor the consummation by such Shareholder of the transactions contemplated thereby hereby will not:
(i) conflict with or constitute result in a breach of any of the terms or provisions violation of, or a default (or an event that with notice or lapse of time or both would become a default) under, such Shareholder's constitutive documents;
(ii) or conflict with or constitute a breach of with, any covenantcontract, trust, commitment, agreement, understanding or Authorization arrangement of any kind to which such the Shareholder is a party or by bound or to which such Shareholder Shareholder's Shares are subject or result in the creation of any Lien (as defined below) on any of its Assets and Properties is bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation Shareholder's Shares. Consummation by such Shareholder of the transactions contemplated thereby hereby will not violate, or require any consent, approval, Authorization, other order or action of, filing with or notice under any provision of any judgment, order, decree, writ, injunction, statute, law, rule or regulation applicable to such Shareholder or such Shareholder's Shares, except for any Governmental necessary filing under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or Regulatory Authoritythe ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR Act").
(e) (i) There is no Action pending to which d. Except as described on Schedule I attached hereto, such Shareholder is a party or to which any of Shareholder's Shares and the certificates representing such Shareholder's Shares it owns or controls, beneficially or otherwise, is subject, which are now and at all times during the term hereof will result inbe held by such Shareholder, or could reasonably be expected to result in, by a nominee or custodian for the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge benefit of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liensliens, claims, security interests, proxies, voting trusts or agreements, understandings or arrangements whatsoeveror any other encumbrances whatsoever (collectively, "Liens"), except for those any such encumbrances or proxies arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant hereunder or otherwise disclosed to the Termination AgreementMerger Sub; provided, neither however, that such Shareholder nor any of its Affiliates has entered into any agreement, arrangement may transfer all or understanding with (i) any one or more a portion of the Shareholders or any Shares in accordance with Section 3 of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or managementthis Agreement.
Appears in 2 contracts
Sources: Shareholder Agreement (VMM Merger Corp), Shareholder Agreement (Vdi Multimedia)
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby represents and warrants (severally and not jointly as to the Company and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders itself only) as of the date on which such Person executes such Endorsement) thathereof to SPAC as follows:
(a) Such Shareholder is duly organized the registered owner or beneficial owner (within the meaning of the Securities Act (Saskatchewan)) of, and validly existing has good, valid and marketable title to or has a valid proxy to vote such shares, such Shareholder’s Covered Shares, free and clear of any Liens (other than as created by this Agreement or the organizational documents of the Company (including, for the purposes hereof, any agreements between or among shareholders of the Company)). Other than the Owned Shares set forth opposite such Shareholder’s name on Schedule 1, such Shareholder does not legally own or beneficially hold any Company Common Shares or any interest therein.
(b) Such Shareholder in each case except as provided in this Agreement 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 herein 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 similar agreement, understanding or arrangement, or any right or privilege (by Law or contract) capable of becoming any of the foregoing, in each case, and has no knowledge and is not aware of any such foregoing agreement or arrangement in effect with respect to any of such Shareholder’s Covered Shares, in each case, that are inconsistent with, or would interfere with, or prohibit or prevent such Shareholder from satisfying its 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 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, (A) is a legal entity duly organized, validly existing and, to the extent such concept is applicable, in good standing under the laws Laws of the jurisdiction of its jurisdiction of organization, with full and (B) has all requisite corporate or other power and authority to and has taken all corporate or other action necessary in order to, execute, deliver and perform its obligations under the Principal Agreements to which it is a party this Agreement and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.
(b) The Principal Agreements to which such Shareholder is a party have hereby. This Agreement has been duly and validly authorized, executed and delivered by such Shareholder and, subject to the due execution and constitute the legaldelivery of this Agreement by each other Party, constitutes a legally valid and binding obligations agreement of such Shareholder, Shareholder enforceable against such Shareholder in accordance with their terms, the terms hereof (except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium bankruptcy Laws or other similar laws Laws affecting creditors' ’ rights and remedies generally general principles of equity affecting the availability of specific performance and by general other equitable principles (whether applied by a court of law or equityremedies).
(c) The execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not:
(i) conflict with or constitute a breach of any of the terms or provisions of, or a default under, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of any covenant, agreement, understanding or Authorization to which such Shareholder is a party or by which such Shareholder or any of its Assets and Properties is bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified Other than the filings, notices and reports pursuant to, in Schedule 2.1(d)compliance with or required to be made under applicable 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 Authority in connection with the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a partythis Agreement, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consenthereby, approval, Authorization, the Plan of Arrangement or the other order or action of, filing with or notice to any Governmental or Regulatory Authoritytransactions contemplated by the Business Combination Agreement.
(e) The execution, delivery and performance of this Agreement by such Shareholder does not, and the consummation of the transactions contemplated hereby, the Plan of Arrangement or the other transactions contemplated by the Business Combination Agreement will not, constitute or result in (i) There a breach or violation of, or a default under, the Governing Documents of such Shareholder (if such Shareholder is no Action pending 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 5(d), under any applicable Law to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result inor (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 could (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 result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements prevent or any action taken materially delay or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the impair such Shareholder’s ability of such Shareholder to perform its obligations thereunderhereunder or to consummate the transactions contemplated hereby, the consummation of the Plan of Arrangement or the other transactions contemplated by the Business Combination Agreement.
(iif) There is no action, proceeding or investigation pending against such Shareholder or, to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to threatened against such Shareholder that, (i) in any manner, questions the beneficial or record ownership of such Shareholder’s Covered Shares or the validity of this Agreement, or (ii) before (or, in the case of threatened Actions, that would be expected before) any arbitrator or any Governmental Authority, which challenges or seeks to give rise to any such Action.
(f) Such Shareholder is prevent, enjoin or materially delay the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed performance by such Shareholder)Shareholder of its obligations under this Agreement.
(g) Such Shares constitute Shareholder has received a copy of and reviewed the only shares Business Combination Agreement and has had the opportunity to consult with such Shareholder’s tax and legal advisors. Such Shareholder is a sophisticated Shareholder and has adequate information concerning the business and financial condition of capital stock of SPAC and the Company owned to make an informed decision regarding this Agreement and the other transactions contemplated by the 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 have not made and do not make any representation or warranty, whether express or implied, of record any kind or beneficially character except as expressly set forth in this Agreement and (ii) the agreements contained herein with respect to the Covered Shares held by such ShareholderShareholder are irrevocable.
(h) Except as specified Such Shareholder understands and acknowledges that SPAC is entering into the Business Combination Agreement in reliance upon such Shareholder’s execution and delivery of this Agreement and the Principal Agreements representations, warranties, covenants and Schedule 2.1(h), other agreements of such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreementscontained herein.
(i) Except as specified No investment banker, broker, finder or other intermediary is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which SPAC or the Company is or could be liable in connection with the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts Business Combination Agreement or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders this Agreement or any of their the respective Affiliates with respect to matters relating 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 Companyknowledge of such Shareholder, on behalf of such Shareholder in his, her or its management or any Shares or (ii) capacity as a Shareholder of the Company, any of its Affiliates or management.
Appears in 2 contracts
Sources: Shareholder Support Agreement (Above Food Ingredients Inc.), Shareholder Support Agreement (Bite Acquisition Corp.)
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby Shareholder, severally and not jointly, represents and warrants to the Company Parent and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders Purchaser, as of the date on which such Person executes such Endorsement) thathereof and as of any Closing (as defined herein), as follows:
(a) Such Shareholder is duly organized and validly existing the beneficial owner (as a legal entity defined in Rule 13d-3 under the laws Securities Exchange Act of its jurisdiction 1934, as amended (the “Exchange Act”), which meaning will apply for all purposes of organization, with full power and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated therebythis Agreement) of, and is not required has good title to, all of such Shareholder’s Securities, free and clear of any mortgage, pledge, hypothecation, rights of others, claim, security interest, charge, encumbrance, title defect, title retention agreement, voting trust agreement, interest, option, lien, charge or similar restriction or limitation, including any restriction on the right to be qualified vote, sell or otherwise dispose of the Securities (each, a “Lien”), except as a foreign corporation or other entity authorized to do business set forth in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreementsthis Agreement.
(b) The Principal Agreements to Securities set forth opposite his, her or its name on Schedule A constitute all of the securities (as defined in Section 3(a)(10) of the Exchange Act, which definition will apply for all purposes of this Agreement) of the Company beneficially owned, directly or indirectly, by such Shareholder.
(c) Except for such Securities, such Shareholder does not, directly or indirectly, other than as disclosed on Schedule A, beneficially own or have any option, warrant or other right to acquire any securities of the Company that are or may by their terms become entitled to vote or any securities that are convertible or exchangeable into or exercisable for any securities of the Company that are or may by their terms become entitled to vote, nor is such Shareholder subject to any Contract, commitment, arrangement, understanding, restriction or relationship, other than this Agreement, that provides for such Shareholder to vote or acquire any securities of the Company. Such Shareholder holds exclusive power to vote the Securities and has not granted a party proxy to any other person (as defined in the Merger Agreement, which meaning will apply for all purposes of this Agreement) to vote the Securities, subject to the limitations set forth in this Agreement.
(d) Such Shareholder has full legal capacity, power and authority to execute and deliver this Agreement and to perform his, her or its obligations hereunder and such execution, delivery and performance have been authorized by such Shareholder, and no other proceedings or actions by such Shareholder are necessary therefor.
(e) This Agreement has been duly and validly authorized, executed and delivered by such Shareholder and constitute the legaland, assuming this Agreement constitutes a valid and binding obligations agreement of Parent, Purchaser and the Company, is a valid and binding obligation of such Shareholder, Shareholder enforceable against such Shareholder in accordance with their its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and by general equitable principles (whether applied by a court of law or equity).
(cf) The execution, Neither the execution and delivery and of this Agreement nor the performance by such Shareholder of his, her or its obligations hereunder will conflict with, result in a violation or breach of, or constitute a default (or an event that, with notice or lapse of time or both, would result in a default) or give rise to any right of termination, amendment, cancellation, or acceleration or result in the Principal Agreements to which it is a partycreation of any Lien on any Securities under, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not:
(i) conflict with or constitute a breach of any of the terms or provisions ofContract, or a default under, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of any covenantcommitment, agreement, understanding understanding, arrangement or Authorization restriction of any kind to which such Shareholder is a party or by which such Shareholder is bound or (ii) any of its Assets and Properties is bound; or
(iii) violate injunction, judgment, writ, decree, order or conflict with any law ruling applicable to such Shareholder the Shareholder; except for conflicts, violations, breaches, defaults, terminations, amendments, cancellations, accelerations or any Liens, disclosed on Section 3.1(c) of its Assets and Properties.
(d) Except as specified the Company Disclosure Schedule, that could not individually or in Schedule 2.1(d), the execution, delivery and aggregate be reasonably expected to prevent or materially impair or delay the performance by such Shareholder of the Principal Agreements to which it is a partyhis, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order her or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder)hereunder.
(g) Such Shares constitute Neither the only shares execution and delivery of capital stock of this Agreement nor the Company owned of record or beneficially performance by such ShareholderShareholder of his, her or its obligations hereunder will violate any law, decree, statute, rule or regulation applicable to the Shareholder or require any order, consent, authorization or approval of, filing or registration with, or declaration or notice to, any court, administrative agency or other governmental body or authority, the violation of which or failure to take any such action could, individually or in the aggregate, be reasonably expected to prevent or materially impair or delay the performance by such Shareholder of its obligations hereunder, other than any required notices or filings pursuant to federal or state securities laws.
(h) Except as specified set forth in Section 3.8 of the Principal Agreements and Schedule 2.1(h)Merger Agreement, no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement or the Merger Agreement based upon arrangements made by or on behalf of such Shareholder has sole power that is or will be payable by the Company or any of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreementsits subsidiaries.
(i) Except as specified Such Shareholder understands and acknowledges that Parent is entering into, and causing Purchaser to enter into, the Merger Agreement in the Principal Agreements reliance upon such Shareholder’s execution, delivery and Schedule 2.1(i), such Shares are held free and clear performance of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreementsthis Agreement.
(j) Except for To the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither extent such Shareholder is a trust, such Shareholder has supplied or made available to Parent or Purchaser true and correct copies of all documents establishing, organizing, governing or controlling such trust including any order, decree or other judicial pronouncement affecting such trust documents, and all such documents remain in full force and effect.
(k) Neither the Company nor any of its Affiliates subsidiaries has entered into any agreementoutstanding liabilities or obligations to such Shareholder that were not fully reflected or reserved against in the most recent financial statements included in the Filed Company SEC Documents, arrangement except for immaterial travel and other expenses related to service as an employee, officer or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters director and obligations relating to the Companyservice as an employee, its management officer or any Shares or (ii) the Company, any of its Affiliates or managementdirector.
Appears in 2 contracts
Sources: Tender and Option Agreement (Euramax International PLC), Tender and Option Agreement (Euramax International PLC)
Representations and Warranties of the Shareholders. Each Shareholder party hereto on of the date hereof Shareholders hereby represents and warrants to the Company Company, severally and the other Shareholders not jointly, as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thatfollows:
(a) Such Shareholder is duly organized and validly existing as a legal entity the beneficial owner (within the meaning of Rule 13d-3 under the laws Securities Exchange Act of its jurisdiction 1934, as amended (the “Exchange Act”)) and unless otherwise indicated, the record owner of organizationthe shares of Pyramid Common Stock (as may be adjusted from time to time pursuant to Section 5 hereof, with full the “Shares”) set forth opposite such Shareholder’s name on Schedule A to this Agreement and such Shares represent all of the shares of Pyramid Common Stock beneficially owned by such Shareholder as of the date hereof. For purposes of this Agreement, the term “Shares” shall include any shares of Pyramid Common Stock issuable to such Shareholder upon exercise or conversion of any existing right, contract, option, or warrant to purchase, or securities convertible into or exchangeable for, Pyramid Common Stock (“Shareholder Rights”) that are currently exercisable or convertible or become exercisable or convertible and any other shares of Pyramid Common Stock such Shareholder may acquire or beneficially own during the term of this Agreement.
(b) Such Shareholder has all requisite power and authority and, if an individual, the legal capacity, to execute, execute and deliver and perform its obligations under the Principal Agreements to which it is a party this Agreement and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.
(b) The Principal Agreements to which such Shareholder is a party have hereby. This Agreement has been duly and validly authorized, executed and delivered by such Shareholder and constitute and, assuming that this Agreement constitutes the legal, valid and binding obligations obligation of the Company, constitutes the legal, valid and binding obligation of such Shareholder, enforceable against such Shareholder in accordance with their terms, its terms (except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' ’ rights and remedies generally and generally, or by general principles governing the availability of equitable principles (whether applied by a court of law or equityremedies).
(c) The execution, execution and delivery and performance of this Agreement by such Shareholder does not, and the performance of the Principal Agreements to which it is a party, compliance this Agreement by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not:
, (i) if such Shareholder is a corporation or limited liability company, conflict with the certificate or constitute a breach articles of any incorporation, certificate of the terms formation or provisions oflimited liability company agreement or bylaws, or similar organizational documents of such Shareholder as presently in effect (in the case of a default underShareholder that is a legal entity), such Shareholder's constitutive documents;
(ii) conflict with or violate any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to such Shareholder or by which it is bound or affected, (iii)(A) result in any breach of or constitute a breach default (or an event that with notice or lapse of time or both would become a default) under, (B) give to any other person any rights of termination, amendment, acceleration or cancellation of, or (C) result in the creation of any covenantpledge, claim, lien, charge, encumbrance or security interest of any kind or nature whatsoever upon any of the properties or assets of the Shareholder under, any agreement, understanding contract, indenture, note or Authorization instrument to which such Shareholder is a party or by which it is bound or affected, except for such breaches, defaults or other occurrences that would not prevent or materially delay the performance by such Shareholder of any of such Shareholder’s obligations under this Agreement, or (iv) except for applicable requirements, if any, of the Exchange Act, the Securities Act of 1933, as amended (the “Securities Act”), the New York Stock Exchange Market (the “NYSE”) or the H▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the “HSR Act”), require any filing by such Shareholder with, or any permit, authorization, consent or approval of, any governmental or regulatory authority, except where the failure to make such filing or obtain such permit, authorization, consent or approval would not prevent or materially delay the performance by the Shareholder of its Assets and Properties is bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Propertiessuch Shareholder’s obligations under this Agreement.
(d) Except as specified in Schedule 2.1(d), The Shares and the execution, delivery and performance certificates representing the Shares owned by such Shareholder of are now and at all times during the Principal Agreements to which it is a party, the compliance term hereof will be held by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result inShareholder, or could reasonably be expected to result in, by a nominee or custodian for the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge benefit of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Lienspledges, liens, charges, claims, security interests, proxies, voting trusts or agreements, understandings or arrangements or any other encumbrances whatsoever, except for those any such encumbrances or proxies arising hereunder or under applicable federal and state securities laws or under the Principal Agreementsagreements set forth on Schedule B hereto. Such Shareholder owns of record or beneficially no shares of Pyramid Common Stock other than such Shareholder’s Shares.
(je) Except for As of the Principal Agreements and the agreements terminated pursuant to the Termination Agreementdate hereof, neither such Shareholder Shareholder, nor any of its Affiliates has entered into respective properties or assets is subject to any agreementorder, arrangement writ, judgment, injunction, decree, determination or understanding with (i) any one award that would prevent or more delay the consummation of the Shareholders or any transactions contemplated hereby.
(f) Such Shareholder understands and acknowledges that the Company is entering into, the Merger Agreement in reliance upon such Shareholder’s execution and delivery of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or managementthis Agreement.
Appears in 2 contracts
Sources: Voting Agreement (Pyramid Oil Co), Voting Agreement (Pyramid Oil Co)
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby severally represents and warrants to the Company Parent and the other Shareholders Merger Sub as of the Effective Date (and each Person who becomes a party follows as to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thatShareholder:
(a) a. Such Shareholder is the record and beneficial owner of the shares of Common Stock ("Shares") set forth next to such Shareholder's name on Exhibit A hereto. Such Shareholder is the record and beneficial owner of the options and/or warrants to purchase Common Stock set forth next to such Shareholder's name on Exhibit B hereto ("Options and Warrants"). Such Shares and Options and Warrants constitute all of the shares of Common Stock and other securities convertible into or exercisable or exchangeable for shares of Common Stock owned of record or beneficially by such Shareholder. The Shares and the shares of Common Stock issuable upon exercise of the Options and Warrants are collectively referred to herein as such Shareholder's "Subject Shares".
b. Such Shareholder, if a corporation or other entity, is duly organized and organized, validly existing as a legal entity and in good standing under the laws of its jurisdiction of organizationrespective jurisdiction, with full has all requisite power and authority to execute, execute and deliver and perform its obligations under the Principal Agreements to which it is a party this Agreement and to consummate the transactions contemplated therebyhereby, and is not required to be qualified as a foreign corporation has taken all necessary corporate, partnership or other entity authorized action to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute authorize the execution, delivery and deliver or perform its obligations under such Principal Agreementsperformance of this Agreement.
(b) The Principal Agreements to which such Shareholder is a party have c. This Agreement has been duly and validly authorized, executed and delivered by such Shareholder and constitute constitutes the legal, valid and binding obligations obligation of such Shareholder, enforceable against such Shareholder in accordance with their its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and by general equitable principles (whether applied by a court of law or equity).
(c) The execution, d. Neither the execution and delivery and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and this Agreement nor the consummation by such Shareholder of the transactions contemplated thereby hereby will not:
(i) conflict with or constitute result in a breach of any of the terms or provisions violation of, or a default under, such Shareholder's constitutive documents;
(ii) or conflict with or constitute a breach of with, any covenantcontract, trust, commitment, agreement, understanding or Authorization arrangement of any kind to which such the Shareholder is a party or by bound or to which such Shareholder or any Shareholder's Subject Shares are subject. Neither the execution and delivery of its Assets and Properties is bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and this Agreement nor the consummation by such Shareholder of the transactions contemplated thereby hereby will not violate, or require any consent, approval, Authorization, other order or action of, filing with or notice to under any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity provision of any of the Principal Agreements judgment, order, decree, statute, law, rule or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known regulation applicable to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite or such Shareholder's name on Schedule 1 Subject Shares, except for any necessary filing under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Hart-▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇itrust Improvements Act of 1976, as amended (the "HSR Act") or in the Endorsement executed by such Shareholder)state takeover laws.
(g) e. Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has (or, with respect to Option and Warrants, upon exercise will have) sole voting power, sole power of disposition and sole voting power all other shareholder rights with respect to all of such Shareholder's Subject Shares, with no restrictions on such rightsrestrictions, other than such restrictions pursuant to applicable securities laws, on Transfers as arise under applicable United States federal securities laws the Shareholder's rights of disposition pertaining thereto. Such Shareholder's Subject Shares and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), certificates or agreements representing such Shareholder's Subject Shares are now and at all times during the term hereof will be held by such Shareholder, or by a nominee or custodian for the benefit of such Shareholder, free and clear of all Liensliens, claims, security interests, proxies, voting trusts or agreements, understandings or arrangements or any other encumbrances whatsoever, except for those any such encumbrances or proxies arising under hereunder or otherwise disclosed in writing to the Principal AgreementsParent.
(j) Except for the Principal Agreements and the agreements terminated pursuant f. There is no suit, action, investigation or proceeding pending or, to the Termination Agreementknowledge of such Shareholder, neither threatened against such Shareholder nor at law or in equity before or by any Governmental Authority that could reasonably be expected to materially impair the ability of its Affiliates has entered into such Shareholder to perform such Shareholder's obligations hereunder or to consummate the transactions contemplated hereby, and there is no judgment, decree, injunction, rule, order or writ of any agreement, arrangement Governmental Authority to which such Shareholder or understanding with (i) any one such Shareholder's assets are subject that could reasonably be expected to materially impair the ability of such Shareholder to perform such Shareholder's obligations hereunder or more of to consummate the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or managementtransactions contemplated hereby.
Appears in 2 contracts
Sources: Shareholders Agreement (Renex Corp), Shareholders Agreement (Renex Corp)
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby represents and warrants (severally and not jointly as to itself only) to the Company and the other Shareholders Acquiror as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thatfollows:
(a) Such Shareholder is duly organized the sole beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of, and validly existing has good, valid and marketable title to or has a valid proxy to vote, such Shareholder’s Covered Shares, free and clear of any Liens (other than as created by this Agreement or the Organizational Documents of the Company). As of the date hereof, other than the Owned Shares set forth opposite such Shareholder’s name on Schedule 1, such Shareholder does not own beneficially any shares of Company Share or other equity securities of the Company (or any securities convertible, exchangeable for or convertible into shares of Company Share or other equity securities of the Company) or any interest therein.
(b) Such Shareholder in each case except as provided in this Agreement 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 herein 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, and has no knowledge and is not aware of any such voting agreement or 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 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 laws Laws of the jurisdiction of its jurisdiction of organization, with full and (B) has all requisite corporate or other power and authority to and has taken all corporate or other action necessary in order to, execute, deliver and perform its obligations under the Principal Agreements to which it is a party this Agreement and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.
(b) The Principal Agreements to which such Shareholder is a party have hereby. This Agreement has been duly and validly authorized, executed and delivered by such Shareholder and, subject to the due execution and constitute the legaldelivery of this Agreement by each other Party, constitutes a legally valid and binding obligations agreement of such Shareholder, Shareholder enforceable against such the Shareholder in accordance with their terms, the terms hereof (except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium bankruptcy Laws or other similar laws Laws affecting creditors' ’ rights and remedies generally general principles of equity affecting the availability of specific performance and by general other equitable principles (whether applied by a court of law or equityremedies).
(c) The execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not:
(i) conflict with or constitute a breach of any of the terms or provisions of, or a default under, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of any covenant, agreement, understanding or Authorization to which such Shareholder is a party or by which such Shareholder or any of its Assets and Properties is bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified Other than the filings, notices and reports pursuant to, in Schedule 2.1(d)compliance with or required to be made under the Exchange Act, 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 Authority in connection with the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a partythis Agreement, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order hereby or action of, filing with or notice to any Governmental or Regulatory Authoritythe Transactions.
(e) The execution, delivery and performance of this Agreement by such Shareholder does not, and the consummation of the transactions contemplated hereby and the Transactions will not, constitute or result in (i) There a breach or violation of, or a default under, the Organizational Documents of such Shareholder (if such Shareholder is no Action pending 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 4(d), under any applicable Law to which such Shareholder is a 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 to which (iii) directly above, for any of such breach, violation, termination, default, creation, acceleration or change that would not, individually or in the Shares it owns or controlsaggregate, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements prevent or any action taken materially delay or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the impair such Shareholder’s ability of such Shareholder to perform its obligations thereunderhereunder or to consummate the transactions contemplated hereby or the Transactions.
(f) As of the date of this Agreement, (ii) there is no Action pending against such Shareholder or, to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to threatened against such Shareholder that would be expected to give rise to that, in any such Action.
(f) Such Shareholder is manner, questions the record holder and beneficial owner ownership of the Shareholder’s Covered Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed validity of this Agreement, or challenges or seeks to prevent, enjoin or materially delay the performance by such Shareholder)Shareholder of its obligations under this Agreement.
(g) Such Shares constitute The Shareholder is a sophisticated shareholder and has adequate information concerning the only shares business and financial condition of capital stock of Acquiror and the Company owned to make an informed decision regarding this Agreement and the Transactions and has independently and based on such information as the Shareholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. The Shareholder acknowledges that Acquiror and the Company have not made and do not make any representation or warranty, whether express or implied, of record any kind or beneficially character except as expressly set forth in this Agreement. The Shareholder acknowledges that the agreements contained herein with respect to the Covered Shares held by such Shareholderthe Shareholder are irrevocable.
(h) Except as specified Such Shareholder understands and acknowledges that Acquiror is entering into the Business Combination Agreement in reliance upon such Shareholder’s execution and delivery of this Agreement and the Principal Agreements representations, warranties, covenants and Schedule 2.1(h), other agreements of such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreementscontained herein.
(i) Except as specified No investment banker, broker, finder or other intermediary is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which Acquiror or the Company is or could be liable in connection with the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts Business Combination Agreement or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders this Agreement or any of their the respective Affiliates with respect to matters relating 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 Companyknowledge of such Shareholder, on behalf of such Shareholder in his, her or its management or any Shares or (ii) the Company, any of its Affiliates or managementcapacity as a shareholder.
Appears in 2 contracts
Sources: Company Holders Support Agreement (Agrico Acquisition Corp.), Company Holders Support Agreement (Agrico Acquisition Corp.)
Representations and Warranties of the Shareholders. Each Shareholder party hereto on of the date hereof Shareholders hereby represents and warrants to the Company Parent and the other Shareholders Purchaser, severally and not jointly, as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thatfollows:
(a) Such Shareholder is duly organized the record and validly existing beneficial owner of the shares of Common Stock (as a may be adjusted from time to time pursuant to Section 6 hereof, the "Shares") set forth opposite his name on Schedule 1 to this Agreement. For purposes of this Agreement, the term "Shares" does not include any option exercisable into Common Stock until such option is exercised. Schedule 1 lists all options issued to the Shareholders.
(b) Such Shareholder has the legal entity under the laws of its jurisdiction of organization, with full power capacity to execute and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party this Agreement and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreementshereby.
(bc) The Principal Agreements to which such Shareholder is a party have This Agreement has been duly and validly authorized, executed and delivered by such Shareholder and constitute constitutes the legal, valid and binding obligations obligation of such Shareholder, enforceable against such Shareholder in accordance with their its terms, except (i) as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar and other laws of general application affecting enforcement of creditors' rights generally, and remedies generally (ii) the availability of the remedy of specific performance or injunctive or other forms of equitable relief may be subject to equitable defenses and by general equitable principles (whether applied by a would be subject to the discretion of the court of law or equity)before which any proceeding therefor may be brought.
(cd) The execution, Neither the execution and delivery and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and this Agreement nor the consummation by such Shareholder of the transactions contemplated thereby hereby will not:
(i) conflict with or constitute a breach of violate any of the terms or provisions of, or a default under, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of any covenant, agreement, understanding or Authorization other agreement to which such Shareholder is a party or by which such Shareholder or any of its Assets and Properties is bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which The Shares and the certificates representing the Shares owned by such Shareholder is a party or to which any of are now and at all times during the Shares it owns or controls, beneficially or otherwise, is subject, which term hereof will result inbe held by such Shareholder, or could reasonably be expected to result in, by a nominee or custodian for the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge benefit of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liensliens, claims, security interests, proxies, voting trusts or agreements, understandings or arrangements or any other encumbrances whatsoever, except for those any such encumbrances or proxies arising under the Principal Agreementshereunder.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 2 contracts
Sources: Shareholders Agreement (Sage Group PLC), Shareholders Agreement (Best Software Inc)
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby represents and warrants to the Company Parent and the other Shareholders Purchaser, severally and not jointly, and solely as of the Effective Date (to itself and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders its Covered Shares, as of the date on which such Person executes such Endorsement) thatfollows:
(a) Such The Shareholder (i) is duly organized and validly existing the beneficial owner (as a legal entity defined in Rule 13d-3 under the laws Securities Exchange Act of its jurisdiction 1934, as amended) of, and has good and marketable title to, the Covered Shares set forth opposite such Shareholder’s name on Schedule A hereto, free and clear of organizationany and all liens, claims, security interests, proxies, voting trusts or agreements, options, rights, understandings or arrangements or any other encumbrances whatsoever on title, transfer, or exercise of any rights of a Shareholder in respect of such Covered Shares (collectively, “Encumbrances”) except for restrictions on transfer under the Securities Act of 1933, as amended, or Encumbrances arising hereunder; (ii) does not own, of record or beneficially, any shares of capital stock of the Company (or rights to acquire any such shares) other than the Covered Shares set forth on Schedule A hereto; and (iii) has the right to vote and dispose of and holds power to issue instructions with respect to the matters set forth in Sections 3, 4, 5 and 6 hereof, power to demand appraisal rights and power to agree to all of the matters set forth in this Agreement with respect to all of such Shareholder’s Covered Shares, with full power no material limitations, qualifications or restrictions on such rights, subject to applicable federal securities law and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreementsterms of this Agreement.
(b) The Principal Agreements to which In the case of any Shareholder that is a corporation, limited partnership or limited liability company, such Shareholder is a party have been an entity duly organized, validly existing and validly authorized, executed and delivered by such Shareholder and constitute in good standing under the legal, valid and binding obligations laws of such Shareholder, enforceable against such Shareholder the jurisdiction in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium which it is incorporated or similar laws affecting creditors' rights and remedies generally and by general equitable principles (whether applied by a court of law or equity)constituted.
(c) The Shareholder has the legal capacity and all requisite power and authority to execute and deliver this Agreement and to perform the Shareholder’s obligations hereunder and consummate the transactions contemplated hereby. To the extent applicable, the execution, delivery and performance by such the Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof this Agreement and the consummation by such the Shareholder of the transactions contemplated thereby hereby have been duly and validly authorized by the Shareholder (or its board of directors or similar governing body, as applicable), and no other actions or proceedings on the part of the Shareholder are necessary to authorize the execution and delivery by the Shareholder of this Agreement and the consummation by the Shareholder of the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by the Shareholder and constitutes a valid and binding obligation of the Shareholder enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law).
(d) Neither the execution and delivery of this Agreement by the Shareholder, the performance by the Shareholder of such Shareholder’s obligations hereunder nor the consummation by the Shareholder of the transactions contemplated hereby will not:
(i) conflict with result in a violation or constitute a breach of any of the terms or provisions of, or constitute (with or without notice or lapse of time or both) a default under, such Shareholder's constitutive documents;
(ii) or conflict with (A) to the extent applicable, any provisions of the organizational documents of the Shareholder or constitute a breach of (B) any covenantnote, bond, mortgage, indenture, contract, agreement, understanding lease, license, permit or Authorization other instrument or obligation of any kind to which such Shareholder is a party or by which such Shareholder’s Covered Shares are bound, except with respect to clause (B) for any such violations, breaches, defaults or conflicts as could not reasonably be expected, either individually or in the aggregate, to materially impair the ability of such Shareholder to perform his or its obligations hereunder or to consummate the transactions contemplated hereby on a timely basis, or (ii) violate, or require any consent, approval, or notice under, any provision of any judgment, order or decree or any of its Assets and Properties is bound; or
(iii) violate federal, state, local or conflict with any law foreign statute, law, ordinance, rule, regulation, order, judgment, decree or legal requirement applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and ’s Covered Shares (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated filings required pursuant to the Termination AgreementSecurities Exchange Act of 1934, neither such Shareholder nor any of its Affiliates has entered into any agreementas amended, arrangement or understanding with (i) any one or more of and the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or managementrules promulgated thereunder).
Appears in 2 contracts
Sources: Tender and Shareholder Support Agreement (Genelabs Technologies Inc /Ca), Tender and Shareholder Support Agreement (Glaxosmithkline PLC)
Representations and Warranties of the Shareholders. Each The Shareholder party hereto on the date hereof hereby represents and warrants to the Company and the other Shareholders PubCo as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders itself as of the date on which such Person executes such Endorsement) thatfollows:
(a) Such Shareholder is duly organized the only record and validly existing 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 or the Company Governing Documents (including, for the purposes hereof, any agreements between or among shareholders of the Company). As of the date hereof, other than the Covered Shares, such Shareholder does not own beneficially or of record any shares of capital stock of the Company (or any securities convertible into shares of capital stock of the Company) or any interest therein.
(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 the Shareholder’s Covered Shares, (ii) has not entered into any voting agreement or voting trust 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 (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.
(c) Such Shareholder affirms that (i) if such 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 such Shareholder is not a natural person, (A) it is a legal entity duly organized, validly existing and, to the extent such concept is applicable, in good standing under the laws Laws of the jurisdiction of its jurisdiction of organization, with full organization and (B) 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 the Principal Agreements to which it is a party this Agreement and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.
(b) The Principal Agreements to which such Shareholder is a party have hereby . This Agreement has been duly and validly authorized, executed and delivered by such Shareholder and constitute the legal, constitutes a valid and binding obligations agreement of such Shareholder, Shareholder enforceable against such Shareholder in accordance with their its terms, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and similar laws Laws affecting creditors' ’ rights and remedies generally and by subject, as to enforceability, to general equitable principles (whether applied by a court of law or equity).
(c) The execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not:
(i) conflict with or constitute a breach of any of the terms or provisions of, or a default under, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of any covenant, agreement, understanding or Authorization to which such Shareholder is a party or by which such Shareholder or any of its Assets and Properties is bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified Other than the filings, notices and reports pursuant to, in Schedule 2.1(d)compliance with or required to be made under the Exchange Act, 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 the Shareholder with, any Governmental Authority in connection with the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a partythis Agreement, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, hereby or the Mergers and the other order or action of, filing with or notice to any Governmental or Regulatory Authoritytransactions 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 Mergers and the other transactions contemplated by the Merger Agreement will not, constitute or result in (i) There a breach or violation of, or a default under, the limited liability company agreement or similar governing documents of such Shareholder (if such Shareholder is no Action pending 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 4(d), under any applicable Law to which such Shareholder is a 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 to which (iii) directly above, for any of such breach, violation, termination, default, creation, acceleration or change that would not, individually or in the Shares it owns or controlsaggregate, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements prevent or any action taken materially delay or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the impair such Shareholder’s ability of such Shareholder to perform its obligations thereunderhereunder or to consummate the transactions contemplated hereby, the consummation of the Mergers or the other transactions contemplated by the Merger Agreement.
(iif) 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, no such Action is threatened, and (iii) there are no facts or circumstances known to threatened against such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is questions the beneficial or record holder and beneficial owner ownership of the Shares described opposite such Shareholder's name on Schedule 1 (’s Owned Shares, the validity of this Agreement or in the Endorsement executed performance by such Shareholder)Shareholder of its obligations under this Agreement.
(g) Such Shares constitute the only shares of capital stock of Shareholder understands and acknowledges that PubCo, SPAC and the Company owned of record or beneficially by 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.
(h) Except as specified No investment banker, broker, finder or other intermediary is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which PubCo, SPAC or the Company is or will be liable in connection with the Principal Agreements and Schedule 2.1(h), transactions contemplated hereby based upon arrangements made by such Shareholder has sole power in his, her or its capacity as a Shareholder or on behalf of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of in his, her or its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or managementcapacity as a Shareholder.
Appears in 2 contracts
Sources: Shareholder Support Agreement (RF Acquisition Corp.), Shareholder Support Agreement (RF Acquisition Corp.)
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby represents and warrants to the Company and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thatfollows:
(a) Such If such Shareholder is a corporation, such Shareholder is a corporation duly organized and incorporated, validly existing as a legal entity and in good standing under the laws of the state of its jurisdiction of organization, with full incorporation and has all requisite corporate power and authority to executeown, deliver lease and operate its properties and to carry on its business as presently conducted. If such Shareholder is a partnership, such Shareholder is a partnership duly formed, validly existing and in good standing under the laws of the state of its formation and has all requisite partnership power and authority to own, lease and operate its properties and to carry on its business as presently conducted.
(b) Such Shareholder has all necessary power and authority to enter into and perform its obligations under the Principal Agreements to which it is a party this Agreement and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.
(b) The Principal Agreements to which hereby. If such Shareholder is a party corporation, the execution and delivery of this Agreement by such Shareholder have been duly and validly authorizedauthorized by all necessary corporate action on the part of such Shareholder, and no other corporate proceedings or shareholder actions on the part of or with respect to such Shareholder are necessary to authorize this Agreement, the performance by such Shareholder of its obligations hereunder or the consummation by such Shareholder of the transactions contemplated hereby. If such Shareholder that is a partnership, the execution and delivery of this Agreement by such Shareholder have been duly and validly authorized by all necessary partnership action on the part of such Shareholder and all necessary action on the part of its partners, and no other proceedings or actions on the part of or with respect to such Shareholder or its partners are necessary to authorize this Agreement, the performance by such Shareholder of its obligations hereunder or the consummation by such Shareholder of the transactions contemplated hereby. This Agreement has been duly executed and delivered by such Shareholder and constitute the constitutes a legal, valid and binding obligations obligation of such Shareholder, enforceable against such Shareholder in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and by general equitable principles (whether applied by a court of law or equity).
(c) The execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not:
(i) conflict with or constitute a breach of any of the terms or provisions of, or a default under, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of any covenant, agreement, understanding or Authorization to which such Shareholder is a party or by which such Shareholder or any of its Assets and Properties is bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Propertieshereof.
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 2 contracts
Sources: Merger Agreement (Janal LTD Partnership), Agreement and Plan of Merger (Cavco Industries Inc)
Representations and Warranties of the Shareholders. Each Shareholder party hereto on of the date hereof Shareholders hereby represents and warrants to the Company and the other Shareholders Corporation as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thatfollows:
(ai) Such The Shareholder is duly organized the legal and validly existing as a legal entity under record owner of the laws of its jurisdiction of organizationRedeemed Shares, with and has full unrestricted power and authority to executetransfer and sell the Redeemed Shares to the Corporation, deliver in the manner provided for in this Agreement;
(ii) The Redeemed Shares represent the entire equity interest of the Shareholder in the Corporation and, upon consummation of the transaction contemplated herein, the Shareholder shall hereinafter own no Shares in the Corporation and perform its obligations under the Principal Agreements to which it is shall have no rights associated with being a party and to consummate the transactions contemplated thereby, and Shareholder whatsoever;
(iii) The Shareholder is not required the holder, beneficially or of record, of any right or option to be qualified as a foreign corporation acquire additional Shares in the Corporation, whether by warrant, option or other entity authorized to do business otherwise;
(iv) The Shareholder is transferring good and marketable title in the Redeemed Shares free and clear of any and all liens, claims, pledges, equities, security interests, options, restrictions and encumbrances and any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver rights of any person or perform its obligations under such Principal Agreements.entity of any kind, nature or description whatsoever;
(bv) The Principal Agreements to which such Shareholder is This Agreement constitutes a party have been duly and validly authorized, executed and delivered by such Shareholder and constitute the legal, valid and binding obligations obligation of such Shareholder, the Shareholder which is enforceable against such the Shareholder in accordance with their its terms, except as such enforceability enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' relating to or limiting creditor’s rights and remedies generally and by general subject to the availability of equitable principles (whether applied by a court of law or equity).
(c) The execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not:
(i) conflict with or constitute a breach of any of the terms or provisions of, or a default under, such Shareholder's constitutive documentsremedies;
(iivi) conflict with or constitute a breach Neither the execution and delivery of any covenantthis Agreement, agreement, understanding or Authorization to which such Shareholder is a party or by which such Shareholder or any nor the fulfillment of its Assets and Properties is bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of this Agreement, constitute or will constitute a default under, conflict or are, or will be, inconsistent with or result in the Principal Agreements.termination of any contract, agreement, covenant or other instrument to which the Shareholder is a party, or which to the actual knowledge of the Shareholder, would have a material adverse effect on the Corporation; and
(ivii) Except as specified The Shareholder is not a party to, nor has been threatened with, any legal or equitable action or proceeding before any court, arbitration, administrative agency or other tribunal which might adversely affect the Shareholder’s ability to consummate the transactions described in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination contemplated by this Agreement, neither such nor is there any judgment, award, decree, lien or order pending or threatened action against the Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect Shares that would adversely affect the Shareholder’s ability to matters relating to consummate the Company, its management or any Shares or (ii) the Company, any of its Affiliates or managementtransactions described in and contemplated by this Agreement.
Appears in 1 contract
Sources: Stock Redemption Agreement (Singing Machine Co Inc)
Representations and Warranties of the Shareholders. Each In order to induce the Buyer to enter into this Agreement and consummate the Transaction, each Shareholder party hereto on the date hereof hereby represents and warrants hereby, severally but not jointly, makes to the Company Buyer the representations and the other Shareholders as of the Effective Date (warranties contained in this Section 2A. Such representations and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted warranties are subject to the Company qualifications and exceptions set forth in the other Shareholders as of the date on which such Person executes such Endorsement) that:Disclosure Schedule.
(a) Such Shareholder is duly organized the sole record and validly existing as a legal entity under beneficial owner of the laws Ordinary Shares and Series A-1 Preferred Shares set forth opposite such Shareholder’s name on Exhibit B attached hereto (subject to adjustment, if at all, pursuant to Section 1.2(b)), in each case free and clear of its jurisdiction any Claims, including Claims of organizationspouses, with full power and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation former spouses or other entity authorized to do business in any family members, or other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver shareholders (or perform its obligations under such Principal Agreementsformer shareholders) of the Company.
(b) The Principal Agreements to which such Shareholder is a party have been duly This Agreement and validly authorizedall agreements, documents and instruments executed and delivered by such Shareholder and constitute the legal, pursuant hereto are valid and binding obligations of such Shareholder, Shareholder enforceable against such Shareholder in accordance with their respective terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganizationmoratorium, moratorium reorganization or other similar laws affecting the enforcement of creditors' ’ rights generally; and remedies generally (ii) limitations on the enforcement of the remedy of specific performance and by general other equitable principles (whether applied by a court of law or equity).
(c) The executionremedies. Such Shareholder has full right, delivery authority, power and performance capacity to enter into this Agreement and all agreements, documents and instruments executed and delivered by such Shareholder pursuant hereto and to carry out the transactions contemplated hereby and thereby. Except as set forth on Section 2A(b) of the Principal Agreements to which it is a partyDisclosure Schedule, compliance the execution and delivery by each Shareholder of this Agreement and all agreements, documents and instruments executed and delivered by such Shareholder with all of the provisions thereof pursuant hereto and the consummation by such Shareholder performance of the transactions contemplated thereby by this Agreement and such other agreements, documents and instruments do not and will not:
: (i) violate or result in a violation of, conflict with or constitute or result in a breach violation of or default (whether after the giving of notice, lapse of time or both) or loss of benefit under any provision of such Shareholder’s organizational or trust documents, if applicable, or cause the creation of any Claim upon any of the terms assets of the Company or provisions any of its Subsidiaries (including any Purchased Shares or Redeemed Shares held thereby); (ii) violate or result in a violation of, or constitute a default (whether after the giving of notice, lapse of time or both) under, any Legal Requirement applicable to the Company, any of its Subsidiaries or to such Shareholder's constitutive documents;
; (iiiii) require from the Company, any of its Subsidiaries or such Shareholder any notice to, declaration or filing with, or consent or approval of, any Governmental Authority or other third party, or (iv) violate or result in a violation of, conflict with or constitute or result in a breach violation of or default (whether after the giving of notice, lapse of time or both) under, accelerate any covenantobligation under, or give rise to a right of termination of, any Licenses, agreement, understanding contract, permit, license, authorization or Authorization other obligation to which such Shareholder is a party or by which such Shareholder or any of its Assets and Properties is assets are bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Properties.
(dc) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder As of each of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof date hereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h)Closing Date, such Shareholder has sole power does not have any claims, counterclaims, suits, causes of disposition and sole voting power with respect action, or demands (whether now known, suspected or claimed to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(ihave) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) against the Company, any of its Affiliates Subsidiaries, Buyer, the Funds or managementany of their respective officers, directors, members, managers partners, employees, consultants or agents other than arising out of the performance of this Agreement.
Appears in 1 contract
Sources: Share Purchase and Redemption Agreement (Alma Lasers Ltd.)
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby represents and warrants to the Company and the other Shareholders as of the Effective Date Northgate (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented acknowledges that Northgate is relying upon such representations and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsementwarranties) that:
(a) Such the Common Shares, options to purchase Common Shares (if any) (the “Options”), and the warrants to purchase Common Shares (if any) (the “Warrants”), set forth opposite its name on Schedule B to this Agreement include all securities of Northgate held of record or beneficially owned by the Shareholder (the Common Shares, Options and Warrants, together, the “Securities”);
(b) any Common Shares as to which legal or beneficial ownership or the right to vote or the right of disposition is duly organized acquired by the Shareholder after the date hereof (including upon the exercise of Options or Warrants) shall be considered to be “Securities” hereunder and validly shall be subject in all respects to this Agreement;
(c) subject to any proxies or powers of attorney granted hereunder, and other existing as a legal entity under arrangements between the laws Shareholder and its affiliates, the Shareholder has the sole voting and the sole dispositive power, and the sole power to agree to the matters set forth herein with respect to the Securities, and will continue to have the sole power to vote and dispose of its jurisdiction the Securities at the time of organizationany vote contemplated by this Agreement and at the time that Northgate acquires the Securities pursuant to the Plan of Arrangement;
(d) other than the Securities, with full no Common Shares or other securities of Northgate which by their terms are exercisable for or convertible into or exchangeable for Common Shares, are beneficially owned or controlled, directly or indirectly, by the Shareholder; the Shareholder has, and will have on the Effective Date, power and authority to executedeliver good title to the Securities, deliver free and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in clear of any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.Encumbrances;
(be) The Principal Agreements to which such Shareholder is a party have this Agreement has been duly and validly authorized, executed and delivered by such Shareholder the Shareholder, and, assuming the due authorization, execution and constitute the delivery by Primero, this Agreement constitutes a legal, valid and binding obligations obligation of such the Shareholder, enforceable against such Shareholder in accordance with their its terms, except as such enforceability may be limited by subject to laws of general application and bankruptcy, insolvency, reorganization, moratorium or insolvency and other similar laws affecting creditors' ’ rights and remedies generally and by general equitable principles (whether applied by a court of law or equity).;
(cf) The executionif the Shareholder is a corporation or other entity, delivery and performance by such Shareholder it is validly subsisting under the laws of the Principal Agreements jurisdiction governing its incorporation or formation and has all necessary corporate or other power and authority to which it is a partyexecute and deliver this Agreement and to perform its obligations hereunder;
(g) neither the execution and delivery of this Agreement by the Shareholder, compliance by such Shareholder with all of the provisions thereof and the consummation by such the Shareholder of the transactions contemplated thereby will nothereby nor the compliance by the Shareholder with any of the provisions hereof will:
(i) conflict with result in any breach of, or constitute a breach default (or an event which with notice or lapse of time or both would become a default), or give rise to any third party right of termination, cancellation, material modification, acceleration, purchase or right of first refusal, under any provision of any of the terms constating documents of the Shareholder (if the Shareholder is a corporation or other entity) or under any of the terms, conditions or provisions of, or a default under, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of any covenantnote, loan agreement, bond, mortgage, indenture, contract, licence, agreement, understanding lease, permit or Authorization other instrument or obligation to which such Shareholder is a party or by which such Shareholder or any of its Assets and Properties is properties or assets (including the Securities) may be bound, which breach or default could reasonably be expected to prevent, materially delay or materially impair the Shareholder’s ability to consummate the transactions contemplated by this Agreement;
(ii) require the Shareholder to make any filing with (other than pursuant to the requirements of applicable securities legislation which filings the Shareholder will undertake), or to obtain any permit, waiver, authorization, exemption, registration, licence, consent or approval of, any Governmental Entity or any other person; or
(iii) subject to compliance with any approval or law contemplated by the Arrangement Agreement, violate or conflict with any law judgement, order, notice, decree, statute, law, ordinance, rule or regulation applicable to such the Shareholder or any of its Assets and Properties.properties or assets;
(dh) Except as specified in Schedule 2.1(d)there is no private or governmental action, suit, proceeding, claim, arbitration or investigation pending before any Governmental Entity, or, to the execution, delivery and performance by such Shareholder knowledge of the Principal Agreements to which it is a partyShareholder, threatened against the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of its properties that, individually or in the Shares it owns or controlsaggregate, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result inprevent, materially delay or materially impair the issuance of an Shareholder’s ability to consummate the transactions contemplated by this Agreement;
(i) there is no order which (A) questions the validity of any of Governmental Entity against the Principal Agreements Shareholder that could prevent, enjoin, alter or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of materially delay any of the transactions contemplated by any of the Principal Agreementsthis Agreement, or (C) would, or would that could reasonably be expected toto prevent, result in materially delay or materially impair the issuance of an order which materially adversely affects Shareholder’s ability to consummate the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed transactions contemplated by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.this Agreement; and
(j) Except for subject to existing arrangements between the Principal Agreements Shareholder and its affiliates, the agreements terminated pursuant Shareholder has not previously granted or agreed to grant any power of attorney or attorney in fact, proxy or other right to vote in respect of the Termination Agreement, neither such Shareholder nor any of its Affiliates has Securities or entered into any agreementvoting trust, arrangement vote pooling or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates other agreement with respect to matters relating the right to vote, call meetings of shareholders or give consents or approvals of any kind as to the Company, its management Securities except those which are no longer of any force or any Shares or (ii) the Company, any of its Affiliates or managementeffect.
Appears in 1 contract
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby represents and warrants to the Company and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) that:
(a) Such Shareholder If it is a legal person, it is duly organized and validly existing as a legal entity under the laws of its the jurisdiction of organization, with full its organization and has the power (corporate and other) and authority to execute, deliver and perform conduct its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated thereby, and is not required to be qualified business as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreementspresently conducted.
(b) The Principal Agreements Shareholders have full power (corporate and other) and authority to which such Shareholder is a party enter into this Agreement and for this purpose have been duly authorized by all proper and validly necessary corporate action, if applicable; and that no consent or approval of stockholders is required as a condition to the validity or performance of this Agreement. All authorizations, consents, approvals, registrations, exemptions and licenses with or from governmental authorities which are necessary for the validity hereof, the execution and delivery of this Agreement and the performance by the Shareholders of their obligations hereunder have been effected or obtained.
(c) This Agreement has been duly authorized, executed and delivered by such Shareholder the Shareholders and constitute constitutes the legal, valid and legally binding obligations obligation of such Shareholderthe Shareholders, enforceable against such Shareholder in accordance with their its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and by general equitable principles (whether applied by a court of law or equity).
(cd) The executionNeither the entering into this Agreement nor the compliance with any of their respective terms will conflict with, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not:
(i) conflict with violate or constitute result in a breach of any of the terms terms, conditions or provisions of, or constitute a default or require any consent under, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of any covenant, shareholders agreement, understanding indenture, mortgage, agreement or Authorization other instrument or arrangement to which such Shareholder is the Shareholders are a party or by which such Shareholder it is bound, including, but not limited to the Sponsors Agreement, or violate any of the terms or provisions of the Shareholders' Articles of Association, bylaws or equivalent documents or any of its Assets and Properties is bound; or
(iii) violate judgment, decree or conflict with order or any law statute, rule or regulation applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory AuthorityShareholders.
(e) (i) There is no Action pending to which such No Shareholder is a party engaged in or to which is the subject of any of the Shares it owns or controlssignificant litigation, beneficially or otherwisearbitration, is subject, which will result inadministrative regulatory compliance proceedings, or could reasonably be expected to result ininvestigations, nor are there any significant litigation, arbitration, administrative regulatory compliance proceedings or investigations pending or threatened before any court or arbitrator or before or by any governmental authority, nor is the issuance of an order which (A) questions the validity Shareholder aware of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected likely to give rise to any significant such Actionproceedings.
(f) Such Shareholder is the record holder and beneficial owner Each of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed representations and warranties made by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws this Agreement and the terms Subscription Agreement are true and conditions of the Principal Agreementscorrect.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 1 contract
Sources: Investor Rights Agreement (Intercontinental Telecommunications Corp)
Representations and Warranties of the Shareholders. Each Shareholder party hereto on of the date hereof Shareholders hereby represents and warrants to the Company warrants, jointly and the other Shareholders severally, as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thatfollows:
(a) Such Each Shareholder is duly organized the record and validly existing as beneficial owner of the Common Shares (together with any Common Shares which such Shareholder may acquire at any time on or after the date hereof during the term of this Agreement including, without limitation, all common shares acquired by a Shareholder, however acquired whether through stock splits, stock dividends, reclassifications, recapitalization, similar events or otherwise, the “Shares”) set forth opposite Shareholder’s name on Schedule I to this Agreement.
(b) Each Shareholder has the legal entity under the laws of its jurisdiction of organization, with full power capacity to execute and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party this Agreement and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreementshereby.
(bc) The Principal Agreements to which such Shareholder is a party have This Agreement has been duly and validly authorized, executed and delivered by such each Shareholder and constitute the constitutes his or her legal, valid and binding obligations of such Shareholderobligation, enforceable against such Shareholder him or her in accordance with their its terms, except (i) as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, and (ii) that the availability of the remedy of specific performance or similar laws affecting creditors' rights injunctive or other forms of equitable relief may be subject to equitable defenses and remedies generally and by general equitable principles (whether applied by a would be subject to the discretion of the court of law or equity)before which any proceeding therefor may be brought.
(cd) The execution, Neither the execution and delivery and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and this Agreement nor the consummation by such Shareholder the Shareholders of the transactions contemplated thereby hereby will not:
(i) conflict with or constitute result in a breach of any of the terms or provisions violation of, or a default under, such Shareholder's constitutive documents;
(ii) or conflict with or constitute a breach of with, any covenantcontract, trust, commitment, agreement, understanding understanding, arrangement or Authorization restriction of any kind to which such either Shareholder is a party or by which such either Shareholder or any of its Assets and Properties is his or her assets are bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the . The consummation by such Shareholder the Shareholders of the transactions contemplated thereby hereby will not violate, or require any consent, approval, Authorization, other order or action of, filing with or notice under, any provision of any judgment, order, decree, statute, law, rule or regulation applicable to any Governmental or Regulatory Authoritythe Shareholders.
(e) (i) There is no Action pending to which such Shareholder is The Shares and the certificates representing the Shares owned by the Shareholders are now, and at all times during the term hereof will be, held by the Shareholders, or by a party nominee or to which any custodian for the benefit of the Shares it owns or controlsShareholders, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liensliens, claims, security interests, proxies, voting trusts or agreements, options, rights, understandings or arrangements whatsoeveror any other encumbrances whatsoever on title, transfer, or exercise of any rights of either Shareholder in respect of such Shares, except for those any of the foregoing arising under the Principal Agreementsthis Agreement.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 1 contract
Sources: Voting and Support Agreement (Porter Bancorp, Inc.)
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby Shareholder, severally and not jointly, represents and warrants to the Company Parent and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders Merger Sub, as of the date on which such Person executes such Endorsement) that:hereof, as follows: 2
(a) Such The Shareholder is duly organized and validly existing the beneficial owner (as a legal entity defined in Rule 13d-3 under the laws of its jurisdiction of organization, with full power and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated therebyExchange Act) of, and is not required has good title to, all of the Shares (including the Company Options), free and clear of any mortgage, pledge, hypothecation, rights of others, claim, security interest, charge, encumbrance, title defect, title retention agreement, voting trust agreement, interest, option, lien, charge or similar restriction or limitation, including any restriction on the right to be qualified vote, sell or otherwise dispose of the Shares (each, a "Lien"), except as a foreign corporation or other entity authorized to do business set forth in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreementsthis Agreement.
(b) The Principal Agreements Shares (including the Company Options) constitute all of the securities (as defined in Section 3(a)(10) of the Exchange Act), of the Company beneficially owned, directly or indirectly, by the Shareholder.
(c) Except for the Shares (including the Company Options), the Shareholder does not, directly or indirectly, beneficially own or have any option, warrant or other right to which acquire any securities of the Company that are or may by their terms become entitled to vote or any securities that are convertible or exchangeable into or exercisable for any securities of the Company that are or may by their terms become entitled to vote, nor is the Shareholder subject to any contract, commitment, arrangement, understanding, restriction or relationship (whether or not legally enforceable), other than this Agreement, that provides for such Shareholder is to vote or acquire any securities of the Company. The Shareholder holds exclusive power to vote the Shares and has not granted a party have proxy to any other Person to vote the Shares, subject to the limitations set forth in this Agreement.
(d) This Agreement has been duly and validly authorized, executed and delivered by such the Shareholder and, assuming due authorization, execution and constitute the legaldelivery of this Agreement by Parent and Merger Sub, is a valid and binding obligations obligation of such Shareholder, the Shareholder enforceable against such the Shareholder in accordance with their its terms, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally; and remedies generally and by general equitable principles (whether applied by a court of law or equity).
(c) The execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not:
(i) conflict with or constitute a breach of any of the terms or provisions of, or a default under, such Shareholder's constitutive documents;
(ii) conflict with general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or constitute a breach of any covenant, agreement, understanding or Authorization to which such Shareholder is a party or by which such Shareholder or any of its Assets and Properties is bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(dat law), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Neither the execution and delivery of this Agreement nor the performance by the Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which Shareholder's obligations hereunder will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected toconflict with, result in the issuance a violation or breach of, or constitute a default (or an event that, with notice or lapse of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereundertime or both, (iiwould result in a default) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner right of the Shares described opposite such Shareholder's name on Schedule 1 (termination, amendment, cancellation, or acceleration or result in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.the
Appears in 1 contract
Representations and Warranties of the Shareholders. Each Shareholder party hereto on Shareholder, as to itself only, represents, warrants and covenants to, and agrees with, the date hereof hereby represents and warrants to the Company and the other Shareholders Corporation as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thatfollows:
(a) Such The Shareholder is an entity duly organized and organized, validly existing as a legal entity and in good standing under the laws of its the jurisdiction of organization, its organization with full the requisite power and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party enter into and to consummate the transactions contemplated thereby, by this Agreement and is not required otherwise to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform carry out its obligations under such Principal Agreementshereunder.
(b) The Principal Agreements to which such Shareholder is a party have This Agreement has been duly and validly authorized, executed and delivered by such Shareholder the Shareholder, and constitute constitutes the legal, valid and binding obligations of such the Shareholder, enforceable against such the Shareholder in accordance with their its terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors' ’ rights and remedies generally and by general equitable principles (whether applied by a court of law or equity)remedies.
(c) The execution, delivery and performance of this Agreement by such the Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such the Shareholder of the transactions contemplated thereby hereby will not:
not (i) conflict with or constitute result in a breach of any violation of the terms or provisions of, or a default under, such organizational documents of the Shareholder's constitutive documents;
; (ii) conflict with with, or constitute a breach default (or an event which with notice or lapse of time or both would become a default) under, or give to others any covenantrights of termination, amendment, acceleration or cancellation of, any agreement, understanding indenture or Authorization instrument to which such the Shareholder is a party party; or by which such Shareholder or any of its Assets and Properties is bound; or
(iii) violate result in a violation of any law, rule, regulation, order, judgment or conflict with any law decree (including federal and state securities laws) applicable to the Shareholder. Notwithstanding the foregoing, for the purposes of this Section 3(c)(iii) with respect to Applicable Canadian Securities Laws, the Shareholder’s representation is limited solely to any reporting requirements to be complied with by the Shareholder under such Shareholder or any of its Assets and Propertieslaws.
(d) Except It is the registered and beneficial owner of, and has valid and marketable title to, that number of Exchanged Shares as specified set forth next to the Shareholder’s name in Schedule 2.1(d“B” attached hereto, free and clear of any lien, pledge, restriction or other encumbrance (other than restrictions arising pursuant to applicable securities laws), and has the executionabsolute and unrestricted right, delivery power and performance capacity to transfer and assign to the Corporation such Exchanged Shares being exchanged by such Shareholder it pursuant to this Agreement, free and clear of the Principal Agreements to which it is a partyany lien, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consentpledge, approvalrestriction, Authorization, contractual obligation or other order or action of, filing with or notice to any Governmental or Regulatory Authorityencumbrance.
(e) If a Shareholder is not a United States person, the Shareholder is satisfied as to the full observance of the laws of the Shareholder’s jurisdiction in connection with Shareholder’s participation in the Exchange or any use of this Agreement, including (i) There is no Action pending to which such Shareholder is a party or to which any the legal requirements within the Shareholder’s jurisdiction for participation in the Exchange and Shareholder’s receipt of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunderPreferred Shares, (ii) any foreign exchange restrictions applicable to such receipt, (iii) any governmental or other consents that may need to be obtained and (iv) the income tax and other tax consequences, if any, that may be relevant to the knowledge receipt, holding, redemption, conversion, sale or transfer of such securities. The Shareholder, no such Action is threatened’s receipt of, and the Shareholder’s continued beneficial ownership of, the Preferred Shares will not violate any applicable securities or other laws of the Shareholder’s jurisdiction.
(f) The Shareholder (i) is organized in the jurisdiction set forth next to such Shareholder’s name in Schedule “B” attached hereto; (ii) is not resident in, is not located in and does not have an address in, British Columbia or any other province or territory of Canada; and (iii) is acquiring the Preferred Shares as principal.
(g) The Shareholder acknowledges and agrees that the Preferred Shares are subject to the rights, privileges, conditions and restrictions contained in the Series 1 Preferred Share Rights attached to such Preferred Shares.
(h) The Shareholder understands that the Preferred Shares are being issued to it in reliance on specific exemptions from (i) the registration requirements of United States federal and applicable state securities laws; and (ii) the prospectus requirements of Applicable Canadian Securities Laws in the Province of British Columbia, and that the Corporation is relying upon the truth and accuracy of, and the Shareholder’s compliance with, the representation in Section 3(f) hereof in order to determine the availability of such exemptions and the eligibility of the Shareholder to acquire the Preferred Shares.
(i) The Shareholder acknowledges and agrees that (i) the Preferred Shares have not been and are not being registered under the 1933 Act or any state securities laws or qualified by prospectus under Applicable Canadian Securities Laws and that the Corporation has no obligation to register or qualify by prospectus the Preferred Shares or the Common Shares issuable upon conversion thereof; (ii) the Preferred Shares are subject to the restrictions on transfer contained in the Series 1 Preferred Share Rights; (iii) there are no facts or circumstances known restrictions under Applicable Canadian Securities Laws on the Shareholder’s ability to such resell the Preferred Shares and the Common Shares issuable upon conversion thereof; and (iv) the Corporation has advised the Shareholder that would be expected the Corporation is relying on an exemption from the requirements to give rise to any such Action.
(f) Such provide the Shareholder is the record holder and beneficial owner with a prospectus under Section 3 of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal AgreementsBCI 72-503.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder Neither it nor any of its Affiliates has entered into affiliates (as such term is defined under United States federal and applicable state securities laws) nor any agreement, arrangement person acting on behalf of or understanding with (i) for the benefit of any one or more of the Shareholders foregoing, has paid or given, or agreed to pay or give, directly or indirectly, any commission or other remuneration (within the meaning of Section 3(a)(9) of the 1933 Act and the rules and regulations of the SEC promulgated thereunder) for soliciting the Exchange.
(k) The Shareholder is an “affiliate” of BVF Partners, L.P., such that any class of voting or equity securities of the Corporation held by the Shareholder are required to be aggregated with voting or equity securities of the same class of the Corporation deemed to be beneficially owned by BVF Partners, L.P., for the purposes of Section 13(d) or Section 16 of the 1933 Act and the applicable regulations of the SEC in the United States and NI 62-104 in Canada.
(l) The Shareholder understands that, in addition to any legends required under the Series 1 Preferred Share Rights, the certificates or other instruments representing the Preferred Shares shall bear a legend as set forth below: “UNLESS PERMITTED UNDER CANADIAN SECURITIES LEGISLATION, THE HOLDER OF THESE SECURITIES MUST NOT TRADE THE SECURITIES BEFORE [insert date that is four months and a day after the Closing Date].” If the Shareholder or the Corporation, as the case may be, exercises their respective right to convert all or any portion of their respective Affiliates with respect to matters relating the Preferred Shares held by the Shareholder prior to the Companydate that is four months and a day after the Closing Date in accordance with the provisions of the Series 1 Preferred Share Rights, its management the Common Shares issuable upon conversion of such Preferred Shares shall bear the same legend set forth above.
(m) Except as expressly provided in this Agreement or any Shares otherwise requested or (ii) consented to by the CompanyCorporation, the Shareholder covenants and agrees to not directly or indirectly sell or otherwise dispose of or transfer any of its Affiliates or managementthe Common Shares prior to the Closing Date.
Appears in 1 contract
Representations and Warranties of the Shareholders. Each Shareholder party hereto of the Shareholders, on the date hereof 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 acknowledges that the other Shareholders as of Purchaser is relying on such representations and warranties in connection with the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thatTransaction:
(a) Such this Agreement has been, and each additional agreement or instrument required to be delivered pursuant to this Agreement will be prior to the Time of Closing, duly authorized, executed and delivered by the Shareholder and each is, or will be at the Time of Closing, a legal, valid and binding obligation of the Shareholder, enforceable against the Shareholder in accordance with its terms;
(b) if the Shareholder is duly organized and not an individual, the Shareholder is validly existing as a legal entity under the laws of its jurisdiction of organizationorganization and has the corporate or other power to enter into this Agreement and any other agreement to which it is, with full power or is to become, a party to pursuant to the terms hereof and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party hereunder and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.
(b) The Principal Agreements to which such Shareholder is a party have been duly and validly authorized, executed and delivered by such Shareholder and constitute the legal, valid and binding obligations of such Shareholder, enforceable against such Shareholder in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and by general equitable principles (whether applied by a court of law or equity).thereunder;
(c) The executionthe execution and delivery of this Agreement does not, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby Transaction will not:
, (i) conflict with or constitute if the Shareholder is not an individual, result in a breach or violation of the articles or by-laws of the Shareholder (or other constating documents of the Shareholder) or of any resolutions of the terms directors or provisions ofshareholders of the Shareholder, or a default under, such Shareholder's constitutive documents;
(ii) conflict with or with, result in a breach of, constitute a breach default under or accelerate the performance required by or result in the suspension, cancellation, material alteration or creation of an encumbrance upon any covenantmaterial agreement (including any HANTIAN Material Contract), agreement, understanding license or Authorization permit to which such the Shareholder is a party or by which such the Shareholder is bound or to which any material assets or property of its Assets and Properties the Shareholder is bound; or
subject, or (iii) violate any provision of any applicable law or conflict with regulation or any law judicial or administrative order, award, judgment or decree applicable to such Shareholder or any of its Assets and Properties.the Shareholder;
(d) Except as specified with respect to Shareholders, the Shareholder is the registered and beneficial owner of that number of common shares of HANTIAN set forth opposite the Shareholder’s name in Schedule 2.1(d“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 encumbrances of any nature whatsoever except as set out in the executionHANTIAN Shareholders’ Agreement;
(e) except for the Purchaser’s rights hereunder and except as set out in the HANTIAN Shareholders’ Agreement, delivery and performance by such Shareholder no person has any agreement or option or any right or privilege capable of becoming an agreement for the purchase of the Principal Agreements common shares of HANTIAN (namely the Purchased Shares), held or beneficially owned by the Shareholder and none of such common shares of HANTIAN are subject to which it is a partyany voting trust, shareholders agreement, voting agreement or other agreement with respect to the compliance by disposition or enjoyment of any rights of such Shareholder with all common shares of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any HANTIAN;
(f) no consent, approval, Authorization, other order or action authorization of, filing or registration or declaration with, any applicable Governmental Authority with jurisdiction over the Shareholder is required to be obtained by the Shareholder in connection with the execution and delivery of this Agreement or notice to any Governmental the consummation of the Transaction, except for those consents, orders, authorizations, declarations, registrations or Regulatory Authority.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;
(eg) except as Disclosed by the Shareholder to the Purchaser, no amounts are owing by HANTIAN to the Shareholder;
(ih) There is no Action pending the Shareholder has not authorized any person to which such Shareholder is a party act as broker or to which finder or in any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of other similar capacity in connection with the transactions contemplated by any of the Principal Agreements, or this Agreement; and
(C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (iii) to the knowledge of such the Shareholder, no such Action is threatened, and (iii) there are no facts representation or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner warranty of the Shares described opposite such Shareholder's name on Schedule 1 (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 Endorsement executed by such Shareholder)statements contained herein or therein not misleading.
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 1 contract
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby represents and warrants to and in favour of the Company Company, the Parent and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders Exchangeco, as of the date on which hereof and at the Effective Date, as follows and acknowledges that the Company, the Parent and the Exchangeco are each relying upon such Person executes such Endorsement) thatrepresentations and warranties in entering into this Agreement:
(a) Such the Shareholder is the registered beneficial owner of the Common Shares being transferred by such Shareholder pursuant to this Agreement and has good title to such shares;
(b) such Common Shares are free and clear of all hypothecs, liens, charges, encumbrances, mortgages, security interests and adverse claims;
(c) the Shareholder has full power and authority to deposit, sell, assign, transfer and deliver such Common Shares and, when the consideration to which such Shareholder is entitled under the Acquisition is received, the Parent or Exchangeco, as the case may be, will acquire good title to such Common Shares free and clear of any Liens and none of the Company, the Parent or the Exchangeco or any successors thereto will be subject to any adverse claim in respect of such Common Shares, and the Shareholder hereby irrevocably nominates, constitutes and appoints the President and Chief Executive Officer of the Company, from time to time, with full power of substitution, as agent and true and lawful attorney to act for and on behalf of the Shareholder with full power and authority in the name, place and stead of the Shareholder to, among other things, execute (under seal or otherwise), swear to, acknowledge, deliver and record or file as and where required any instrument or document as may be deemed necessary by the Company to carry out fully the provisions of this Agreement in accordance with its terms and conditions. The power of attorney granted herein is irrevocable, is a power coupled with an interest and, to the extent permitted by law, is valid and binding on the estate of the Shareholder, shall survive the completion of the Acquisition and will be exercisable during any subsequent legal incapacity of the Shareholder, and extends to and is binding upon the heirs, executors, administrators and other legal representatives, and the successors and assigns of the Shareholder and may be exercised by the Company for and on behalf of the Shareholder in executing any instrument with a single signature as attorney;
(d) such Common Shares have not been sold, assigned or transferred nor has any agreement been entered into by the Shareholder to sell, assign or transfer any such Common Shares to any person other than the Parent or Exchangeco;
(e) the Shareholder will execute, upon request, any additional documents, transfers and other assurances as may be necessary or desirable to complete the exchange of certificate(s) representing Common Shares for Exchangeable Share Consideration or Share Consideration (as applicable); WSLegal\073132\00009\12677454v12
(f) the Shareholder has full right, power and authority to execute and deliver this Agreement and to take all actions required pursuant hereto and, if the Shareholder is a corporation or other entity, it is duly incorporated or organized and validly existing as a legal entity subsisting under the laws of its jurisdiction of organizationincorporation or organization and all necessary approvals by its directors, with full power shareholders and authority others have been given to execute, deliver authorize execution of this Agreement on behalf of the Shareholder;
(g) the entering into of this Agreement and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated therebycompleted hereby will not result in the violation of any of the terms and provisions of any law applicable to, and is not required or, if applicable, to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.the constating documents of, the Shareholder;
(bh) The Principal Agreements to which such Shareholder is a party have this Agreement has been duly and validly authorized, executed and delivered by such the Shareholder and, if the Shareholder is not an individual, has been duly authorized by the Shareholder, and will constitute the a legal, valid and binding obligations agreement of such Shareholder, the Shareholder enforceable against such the Shareholder in accordance with their its terms, except as such enforceability may be limited by subject to the qualification that enforcement thereof is subject to applicable bankruptcy, insolvency, reorganization, moratorium reorganization or similar other laws affecting creditors' rights and remedies generally and by general equitable principles (whether applied by a court of law or equity).
(c) The execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not:generally;
(i) conflict with or constitute if the Shareholder is a breach of any resident of the terms or provisions United States, such Shareholder is an Accredited Investor;
(j) if the Shareholder is an Eligible Holder, such shareholder (i) is an "accredited investor" within the meaning of National Instrument 45-106 - Prospectus and Registration Exemptions of the Canadian Securities Administrators adopted under the securities legislation of the Canadian jurisdictions ("NI 45-106") and (ii) acknowledges that the Acquisition constitutes an exempt take-over bid for the Common Shares pursuant to s.2.16 of NI 45-106;
(k) if the Shareholder is not an Eligible Holder and is not a resident of the United Sates but the Shareholder is a resident of, or a default underotherwise subject to, applicable securities laws of another jurisdiction, such Shareholder:
(A) qualifies for an exemption from prospectus and registration requirements available to it under the applicable securities legislation in the jurisdiction of its residence and the Shareholder shall deliver to the Company such further particulars of the exemption(s) and the Shareholder's constitutive documentsqualifications thereunder as the Company or its counsel may request;
(iiB) conflict complies with the requirements of all applicable securities legislation in the jurisdiction of its residence and will provide such evidence of compliance with all such matters as the Company or constitute a breach its counsel may request including, but not limited to, that the issuance of any covenant, agreement, understanding or Authorization the Share Consideration to which such the Shareholder is a party or by which such Shareholder complies with all applicable laws of the Subscriber’s jurisdiction of residence and domicile and will not cause the Company or any of its Assets and Properties is bound; orrespective officers or directors to become subject to or require any registration, disclosure, prospectus or other reporting requirements;
(iiil) violate or conflict with any law applicable if an individual, the Shareholder has attained the age of majority and is legally competent to such Shareholder or any of its Assets execute this Agreement and Properties.to take all actions required pursuant thereto; and WSLegal\073132\00009\12677454v12
(dm) Except the Shareholder has been independently advised as specified to and is aware that the Eligible Consideration and Share Consideration may be subject to resale restrictions under Canadian, United States or other applicable securities legislation and the Shareholder is solely responsible (and the Company and its counsel are in Schedule 2.1(d)no way responsible) for the Shareholder's compliance therewith. The covenants, the execution, delivery representations and performance by such Shareholder warranties of the Principal Agreements to which it is a party, Shareholder herein contained shall survive the compliance by such Shareholder with all completion of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory AuthorityAcquisition.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 1 contract
Sources: Exchange Agreement (Biotricity Inc.)
Representations and Warranties of the Shareholders. Each (i) Shareholder party hereto is the record and beneficial owner of, or Shareholder exercises voting power over, the shares of Company Common Stock indicated on the date hereof hereby represents final page of this Agreement, which, on and warrants to the Company and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date hereof, are free and clear of any Encumbrances that would adversely affect the ability of Shareholder to carry out the terms of this Agreement except with respect to the encumbrances on which Shares beneficially owned by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ as described in Section 5.16(b) of the Merger Agreement. The number of Shares set forth on the signature pages hereto are the only Shares beneficially owned by such Person executes Shareholder and, except as set forth on such Endorsement) that:signature pages, the Shareholder holds no options to purchase or rights to subscribe for or otherwise acquire any securities of the Company and has no other interest in or voting rights with respect to any securities of the Company.
(aii) Such Shareholder is duly organized and validly existing as a legal entity under has the laws of its jurisdiction of organization, with full requisite power and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party enter into this Agreement and to consummate the transaction contemplated by this Agreement. The execution and delivery of this Agreement by such Shareholder and the consummation by such Shareholder of the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.
(b) The Principal Agreements to which such Shareholder is a party by this Agreement have been duly and validly authorized, authorized by all necessary action. This Agreement has been duly executed and delivered by such Shareholder and constitute the legal, constitutes a valid and binding obligations obligation of such Shareholder, enforceable against such Shareholder in accordance with their its terms, except (i) as such enforceability the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws of general application relating to or affecting creditors' rights rights, and remedies generally and (ii) for the limitations imposed by general equitable principles of equity. The execution and delivery of this Agreement does not, and the consummation of the transactions contemplated by this Agreement and compliance with the provisions of this Agreement will not, conflict with, or result in any violation of, or default (whether applied by with or without notice or lapse of time, or both) under, or give rise to a court right of law termination, cancellation or equity).
(c) The execution, delivery and performance acceleration of any obligation that would result in the creation of any Encumbrance upon any of the Shares owned by such Shareholder under, any provision of applicable law or regulation or of any agreement, judgment, injunction, order, decree, or other instrument binding on such Shareholder or any Shares owned by such Shareholder. No consent, approval, order or authorization of any Governmental Entity is required by or with respect to such Shareholder in connection with the Principal Agreements to which it is a party, compliance execution and delivery of this Agreement by such Shareholder with all of the provisions thereof and or the consummation by such Shareholder of the transactions contemplated thereby will not:
by this Agreement, except (i) conflict with or constitute a breach of any for applicable requirements, if any, of the terms or provisions ofSecurities Exchange Act of 1934, or a default underas amended, such Shareholder's constitutive documents;
and the rules and regulations thereunder, and (ii) conflict with where the failure to obtain such consents, approvals, orders or constitute a breach of any covenant, agreement, understanding authorizations would not prevent or Authorization to which such materially delay the performance by Shareholder is a party or by which such Shareholder or any of its Assets and Properties obligations under this Agreement. If this Agreement is bound; or
(iii) violate being executed in a representative or conflict with any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d)fiduciary capacity, the execution, delivery person signing this Agreement has full power and performance by authority to enter into and perform such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory AuthorityAgreement.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 1 contract
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby represents and warrants to the Company and the other Shareholders as of the Effective Date Northgate (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented acknowledges that Northgate is relying upon such representations and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsementwarranties) that:
(a) Such the Common Shares, options to purchase Common Shares (if any) (the “Options”), and the warrants to purchase Common Shares (if any) (the “Warrants”), set forth opposite its name on Schedule B to this Agreement include all securities of Primero held of record or beneficially owned by the Shareholder (the Common Shares, Options and Warrants, together, the “Securities”);
(b) any Common Shares as to which legal or beneficial ownership or the right to vote or the right of disposition is duly organized acquired by the Shareholder after the date hereof (including upon the exercise of Options or Warrants) shall be considered to be “Securities” hereunder and validly shall be subject in all respects to this Agreement;
(c) subject to any proxies or powers of attorney granted hereunder, and other existing as a legal entity under arrangements between the laws Shareholder and its affiliates, the Shareholder has the sole voting and the sole dispositive power, and the sole power to agree to the matters set forth herein with respect to the Securities, and will continue to have the sole power to vote and dispose of its jurisdiction the Securities at the time of organizationany vote contemplated by this Agreement and at the time that Northgate acquires the Securities pursuant to the Plan of Arrangement;
(d) other than the Securities, with full no Common Shares or other securities of Primero which by their terms are exercisable for or convertible into or exchangeable for Common Shares, are beneficially owned or controlled, directly or indirectly, by the Shareholder; the Shareholder has, and will have on the Effective Date, power and authority to executedeliver good title to the Securities, deliver free and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in clear of any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.Encumbrances;
(be) The Principal Agreements to which such Shareholder is a party have this Agreement has been duly and validly authorized, executed and delivered by such Shareholder the Shareholder, and, assuming the due authorization, execution and constitute the delivery by Northgate, this Agreement constitutes a legal, valid and binding obligations obligation of such the Shareholder, enforceable against such Shareholder in accordance with their its terms, except as such enforceability may be limited by subject to laws of general application and bankruptcy, insolvency, reorganization, moratorium or insolvency and other similar laws affecting creditors' ’ rights and remedies generally and by general equitable principles (whether applied by a court of law or equity).;
(cf) The executionif the Shareholder is a corporation or other entity, delivery and performance by such Shareholder it is validly subsisting under the laws of the Principal Agreements jurisdiction governing its incorporation or formation and has all necessary corporate or other power and authority to which it is a partyexecute and deliver this Agreement and to perform its obligations hereunder;
(g) neither the execution and delivery of this Agreement by the Shareholder, compliance by such Shareholder with all of the provisions thereof and the consummation by such the Shareholder of the transactions contemplated thereby will nothereby nor the compliance by the Shareholder with any of the provisions hereof will:
(i) conflict with result in any breach of, or constitute a breach default (or an event which with notice or lapse of time or both would become a default), or give rise to any third party right of termination, cancellation, material modification, acceleration, purchase or right of first refusal, under any provision of any of the terms constating documents of the Shareholder (if the Shareholder is a corporation or other entity) or under any of the terms, conditions or provisions of, or a default under, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of any covenantnote, loan agreement, bond, mortgage, indenture, contract, licence, agreement, understanding lease, permit or Authorization other instrument or obligation to which such Shareholder is a party or by which such Shareholder or any of its Assets and Properties is properties or assets (including the Securities) may be bound, which breach or default could reasonably be expected to prevent, materially delay or materially impair the Shareholder’s ability to consummate the transactions contemplated by this Agreement;
(ii) require the Shareholder to make any filing with (other than pursuant to the requirements of applicable securities legislation which filings the Shareholder will undertake), or to obtain any permit, waiver, authorization, exemption, registration, licence, consent or approval of, any Governmental Entity or any other person; or
(iii) subject to compliance with any approval or law contemplated by the Arrangement Agreement, violate or conflict with any law judgement, order, notice, decree, statute, law, ordinance, rule or regulation applicable to such the Shareholder or any of its Assets and Properties.properties or assets;
(dh) Except as specified in Schedule 2.1(d)there is no private or governmental action, suit, proceeding, claim, arbitration or investigation pending before any Governmental Entity, or, to the execution, delivery and performance by such Shareholder knowledge of the Principal Agreements to which it is a partyShareholder, threatened against the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of its properties that, individually or in the Shares it owns or controlsaggregate, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result inprevent, materially delay or materially impair the issuance of an Shareholder’s ability to consummate the transactions contemplated by this Agreement;
(i) there is no order which (A) questions the validity of any of Governmental Entity against the Principal Agreements Shareholder that could prevent, enjoin, alter or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of materially delay any of the transactions contemplated by any of the Principal Agreementsthis Agreement, or (C) would, or would that could reasonably be expected toto prevent, result in materially delay or materially impair the issuance of an order which materially adversely affects Shareholder’s ability to consummate the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed transactions contemplated by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.this Agreement; and
(j) Except for subject to existing arrangements between the Principal Agreements Shareholder and its affiliates, the agreements terminated pursuant Shareholder has not previously granted or agreed to grant any power of attorney or attorney in fact, proxy or other right to vote in respect of the Termination Agreement, neither such Shareholder nor any of its Affiliates has Securities or entered into any agreementvoting trust, arrangement vote pooling or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates other agreement with respect to matters relating the right to vote, call meetings of shareholders or give consents or approvals of any kind as to the Company, its management Securities except those which are no longer of any force or any Shares or (ii) the Company, any of its Affiliates or managementeffect.
Appears in 1 contract
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby represents and warrants to Purchaser and the Company and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thatfollows:
(a) Such The Shareholder has the right and power and is duly organized and validly existing as a legal entity under the laws of its jurisdiction of organizationauthorized to enter into, with full power and authority to execute, deliver and perform this Agreement, and with respect to any Shareholder that is not an individual, its obligations under officers or agents executing and delivering this Agreement are duly authorized to do so. This Agreement has been duly and validly executed, issued and delivered and constitutes a legal, valid and binding obligation of each Shareholder, enforceable in accordance with its terms.
(b) The execution, delivery, and performance of this Agreement will not, by the Principal Agreements lapse of time, the giving of notice, or otherwise, constitute a violation of any applicable provision contained in (i) in the case of any Shareholder that is a corporation or partnership, its charter, bylaws or other organizational documents or (ii) any agreement, instrument, or document to which it is a party and to consummate the transactions contemplated thereby, and or by which it is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.
(b) The Principal Agreements to which such Shareholder is a party have been duly and validly authorized, executed and delivered by such Shareholder and constitute the legal, valid and binding obligations of such Shareholder, enforceable against such Shareholder in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and by general equitable principles (whether applied by a court of law or equity)bound.
(c) The executionThere is not now, delivery and performance by such Shareholder at no time during the term of this Agreement or this Agreement will there be, any agreement, arrangement, or understanding involving it, other than this Agreement and the documents contemplated hereby and thereby, modifying, restricting, or in any way affecting its rights to vote securities of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not:
(i) conflict with or constitute a breach of any of the terms or provisions of, or a default under, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of any covenant, agreement, understanding or Authorization to which such Shareholder is a party or by which such Shareholder or any of its Assets and Properties is bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and PropertiesCompany.
(d) Except The Shareholder (i) is an "accredited investor", as specified that term is defined in Schedule 2.1(d)Regulation D under the Securities Act; and (ii) has such knowledge, the executionskill, delivery and performance by such Shareholder of the Principal Agreements to which experience in business and financial matters, based on actual participation, that it is a party, capable of evaluating the compliance by such Shareholder with all merits and risks of an investment in the provisions thereof Company and the consummation by such Shareholder of suitability thereof as an investment for the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory AuthorityShareholder.
(e) (i) There is no Action pending to which such Except as otherwise contemplated by this Agreement, the Shareholder is a party or to which any has acquired its shares of Capital Stock of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform Company for investment for its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, own account and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise not with a view to any such Actiondistribution thereof in violation of applicable securities laws.
(f) Such Shareholder is the record holder It agrees that all certificates representing its securities bear appropriate restrictive legends, and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (securities will not be offered, sold, or transferred in the Endorsement executed by such Shareholder)absence of registration or exemption under applicable securities laws.
(g) Such Shares constitute Schedule 4.15 to the only shares Note Agreement accurately sets forth the Shareholder's holdings of capital stock Capital Stock of the Company as of the date hereof, and, except as set forth on Schedule 4.15 to the Note Agreement, all of such Capital Stock is owned free and clear of record or beneficially by such Shareholderall liens, claims and encumbrances.
(h) Except as specified in If the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, is any entity other than such restrictions on Transfers as arise a natural person, the Shareholder is duly organized and in good standing under applicable United States federal securities the laws and the terms and conditions of the Principal Agreementsjurisdiction of its incorporation.
(i) Except as specified in None of the Principal Agreements and Schedule 2.1(i)documents, such Shares are held free and clear of all Liensinstruments, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant other information furnished to the Termination Purchaser by it, contains any untrue statement of a material fact or omits to state any material fact necessary in order to make any statements made therein not misleading. No representation, warranty, or statement made by it in this Agreement, neither such Shareholder nor or in any document, certificate, exhibit or schedule attached hereto or thereto or delivered in connection herewith or therewith, contains or will contain any untrue statement of its Affiliates has entered into a material fact, or omits or will omit to state a material fact necessary to make any agreement, arrangement statements made herein or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or managementtherein not misleading.
Appears in 1 contract
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby represents and warrants to the Company and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) that:
(a) Such Shareholder is duly organized and validly existing as a legal entity under the laws of its jurisdiction of organization, with full power and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.
(b) The Principal Agreements to which such Shareholder is a party have This Agreement has been duly and validly authorized, executed and delivered by such Shareholder and constitute the legal, valid and binding obligations of such Shareholder, each enforceable against such each eligible Shareholder in accordance with their its terms, except as such enforceability enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium insolvency or other similar laws affecting the enforcement of creditors' ’ rights and remedies generally and or by general equitable principles of equity.
(whether applied b) No consent, approval, authorization, license, qualification, exemption or order of any governmental agency or body or third-party is required for the execution of this Agreement by a court any Shareholder or for the consummation by each Shareholder of law or equity)the Merger.
(c) The execution, delivery and performance by such Each Shareholder acknowledges that the common stock of the Principal Agreements Surviving Entity will not be registered pursuant to which it is a partythe Securities Act of 1933, compliance by such Shareholder with all as amended (“Securities Act”) or any applicable state securities laws, that the common stock of the provisions thereof Surviving Entity will be characterized as “restricted securities” under federal securities laws, and that under such laws and applicable regulations the consummation by such Shareholder common stock of the transactions contemplated thereby will not:
(i) conflict with Surviving Entity cannot be sold or constitute a breach otherwise disposed of any of without registration under the terms Securities Act or provisions ofan exemption therefrom. In this regard, or a default under, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of any covenant, agreement, understanding or Authorization to which such each Shareholder is a party or familiar with Rule 144 and Regulation S promulgated under the Securities Act, as currently in effect, and understands the resale limitations imposed thereby and by which such Shareholder or any of its Assets and Properties is bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Propertiesthe Securities Act.
(d) Except as specified Neither Shareholder, nor any of their respective officers, directors, employees, agents, or partners has either directly or indirectly, including, through a broker or finder (a) engaged in Schedule 2.1(d)any general solicitation, or (b) published any advertisement in connection with the execution, delivery offer and performance by such Shareholder sale of the Principal Agreements to which it is a party, the compliance by such Shareholder with all common stock of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory AuthoritySurviving Entity.
(e) (i) There Each Shareholder hereby represents and warrants that he is no Action pending to which such Shareholder an “Accredited Investor” as that term is a party or to which any defined in Rule 501 of Regulation D promulgated under the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such ActionSecurities Act.
(f) Such Each Shareholder is able to bear the record holder and beneficial owner economic risk of acquiring the common stock of the Shares described opposite Surviving Entity, including a complete loss of such Shareholder's name on Schedule 1 (’s investment in such stock. Each Shareholder acknowledges that the Surviving Entity makes no representations or warranties concerning the merits of an investment in its common stock, and each Shareholder understands and acknowledges that the Surviving Entity makes any representations concerning the liquidity of its shares or any Shareholder’s ability to sell his shares of common stock in the Endorsement executed by such Shareholder)Surviving Entity.
(g) Such Shares constitute Each Shareholder acknowledges that the only shares certificates representing such Shareholder’s pro rata portion of capital the common stock of the Surviving Entity shall each conspicuously set forth on the face of back thereof a legend in substantially the following form: The securities represented hereby have not been registered with the SEC or the securities commission of any state in reliance upon an exemption from registration under the Securities Act of 1933, as amended, and, accordingly, may not be transferred unless (i) such securities have been registered for sale pursuant to the Securities Act of 1933, as amended, (ii) such securities may be sold pursuant to Rule 144 or other applicable exemption from applicable securities laws. The Company owned may require an opinion of record or beneficially by counsel to the holder of these securities, reasonably satisfactory to the Company that such Shareholdertransfer may lawfully be made without registration under the Securities Act of 1933, as amended.
(h) Except as specified in the Principal Agreements The representations and Schedule 2.1(h), such Shareholder has sole power warranties and statements of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of fact made by the Shareholders in this Agreement are, as applicable, accurate, correct and complete and do not contain any untrue statement of a material fact or omit to state any of their respective Affiliates with respect material fact necessary in order to matters relating to make the Company, its management statements and information contained herein not false or any Shares or (ii) the Company, any of its Affiliates or managementmisleading.
Appears in 1 contract
Representations and Warranties of the Shareholders. Each Shareholder party hereto on of the date hereof Shareholders hereby severally represents and warrants to the Company to, and the other Shareholders covenants with, Cavalier as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thatfollows:
(a) Such Shareholder is duly organized the owner of, and validly existing as a legal entity under has good title to, the laws number of Shares set forth next to such Shareholder's name on Exhibit 3.2(a)(i) to this Agreement, free and clear of pledges, assignments, liens or other encumbrances (other than the Shareholders' Agreement dated December 11, 1992 among Wheel House and its jurisdiction Shareholders (the "Shareholders' Agreement")), and such Shares are not subject to any options, warrants or rights of organizationothers. At the Closing, with full such Shareholders will have all power and authority necessary to execute, deliver and perform its obligations under transfer their Shares pursuant to this Agreement without obtaining the Principal Agreements to consent of any third party or governmental agency which it is a party and to consummate the transactions contemplated thereby, and is has not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreementsalready been obtained.
(b) The Principal Agreements to which such Such Shareholder will not sell, transfer or otherwise dispose of any of his Shares between the date hereof and the earlier of the Closing Date or the expiration of the Option Period, if the option is a party have been duly and validly authorizednot exercised, executed and delivered by such Shareholder and constitute without obtaining the legal, valid and binding obligations prior written approval of such Shareholder, enforceable against such Shareholder in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and by general equitable principles (whether applied by a court of law or equity)Cavalier.
(c) The execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not:
(i) conflict with or constitute a breach No provision of any of the terms agreement or provisions of, or a default under, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of any covenant, agreement, understanding or Authorization instrument to which such Shareholder is a party or by which such Shareholder is bound will be violated by the execution and delivery of this Agreement or any of its Assets and Properties is bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements agreement or any action taken or condition herein contained required to be taken pursuant thereto, (B) restrains, enjoins per formed or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially satisfied by such Shareholder.
(hd) Except This Agreement, when duly executed and delivered by such Shareholder, will constitute the valid and binding obligation of such Shareholder, enforceable against such Shareholder in accordance with its terms.
(e) Each Shareholder is acquiring the shares of Common Stock issued or to be issued pursuant to this Agreement for investment and for his own account and not with a view to any distribution thereof in violation of the Securities Act of 1933, as specified amended (the "1933 Act"), or any applicable state securities law, and such shares of Common Stock will not be sold, transferred or hypothecated by such Shareholder except in accordance with the terms hereof (including, without limitation, the terms of Section 1.3(b) hereof) and then only if an exemption from registration is available under the 1933 Act and any applicable state securities law or if such shares of Common Stock are registered or qualified thereunder. The Shareholders acknowledge that each certificate evidencing shares of Common Stock issued to the Shareholders pursuant hereto shall bear the following legend: The shares represented by this certificate are being issued pursuant to the Option and Stock Exchange Agreement dated August 28, 1995 among Wheel House Structures, Inc.; ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇; and Cavalier Homes, Inc. (the "Agreement"), have not been registered under the Securities Act of 1933 and have been acquired for investment. They may not be sold or transferred except in compliance with the terms of the Agreement and then only if there exists an effective registration statement for the shares under the Securities Act of 1933 or an opinion of counsel that registration is not required under said Act.
(f) Each Shareholder acknowledges that (i) he has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of an investment in the Principal Agreements shares of Common Stock and Schedule 2.1(h)(ii) has received and reviewed copies of the 1994 Annual Report of Cavalier, the Annual Report of Cavalier on Form 10-K for the fiscal year ended December 31, 1994, the quarterly reports of Cavalier on Form 10-Q for all fiscal quarters ended since December 31, 1994, the proxy statement of Cavalier with respect to the 1994 annual meeting of shareholders, the 1994 annual report to shareholders, and (iii) has had the opportunity of reviewing all other reports filed by Cavalier with the Securities and Exchange Commission during the fiscal year. By virtue of the foregoing and the process of negotiating this Agreement and the transactions contemplated herein, such Shareholder has sole power had access to such information relating to Cavalier as would be disclosed in a registration statement for the registration of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions shares of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising Common Stock under the Principal Agreements1933 Act.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 1 contract
Sources: Option and Stock Exchange Agreement (Cavalier Homes Inc)
Representations and Warranties of the Shareholders. Each Shareholder party hereto on of the date hereof Shareholders hereby represents and warrants to the Company and the other Shareholders Purchasers, as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders himself only, as of the date on which such Person executes such Endorsement) thatfollows:
(a) Such Shareholder (i) has received a copy of the Subscription Agreement, dated as of June 3, 1998, (ii) has had an opportunity to review the Subscription Agreement to the satisfaction of such Shareholder, (iii) is familiar with the terms of the Transactions and (iv) has had an opportunity to ask questions of and receive satisfactory answers from the officers of the Company concerning the Subscription Agreement and the terms of the Transactions.
(b) Such Shareholder is the beneficial owner of the shares of Common Stock shown as owned by him on ANNEX A of this Agreement and has the right to vote such shares. In the event the shares are held by a trust, corporation, partnership, limited liability company or other entity, the Shareholder is the duly organized authorized and validly existing as a legal acting agent or representative of such entity under the laws of its jurisdiction of organization, (with full power and authority to executeenter into this Agreement) and this Agreement has been duly authorized by all necessary entity action. None of the shares of Common Stock owned by him are subject to any proxy, deliver and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation voting trust or other entity authorized agreement or arrangement with respect to do business in any the voting of such shares, other jurisdiction in which its failure than pursuant to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreementsthis Agreement.
(bc) The Principal Agreements to which such Shareholder This Agreement is a party have been duly and validly authorized, executed and delivered by such Shareholder and constitute the legal, valid and binding obligations agreement of such Shareholder, enforceable against such Shareholder him in accordance with their its terms, except as such validity, binding effect or enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting relating to creditors' rights and remedies generally and by general except that the availability of equitable principles (whether applied by a remedies, including specific performance, is subject to the discretion of the court of law or equity)before which any proceeding therefor may be brought.
(cd) The execution, execution and delivery and performance of this Agreement by such Shareholder of the Principal Agreements to which it is a partydo not, compliance by such Shareholder with all of the provisions thereof and the consummation performance by such Shareholder him of the transactions contemplated thereby his obligations hereunder will not:
(i) , constitute a violation of, conflict with or constitute a breach of any of the terms or provisions of, or result in a default underunder any contract, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of any covenantcommitment, agreement, understanding understanding, arrangement, statute or Authorization restriction of any kind to which such Shareholder he is a party or by which such Shareholder he or any of its Assets and Properties his property is bound; or
(iii) violate bound or conflict with any law judgment, decree or order applicable to such Shareholder or any of its Assets and Propertieshim.
(de) Except as specified in Schedule 2.1(d)Neither the execution and delivery of this Agreement, nor the execution, delivery and performance by such Shareholder of his obligations hereunder will violate any provision of law applicable to him, except for the Principal Agreements to which it is a partyrequirements, the compliance by such Shareholder with all if any, of the provisions thereof federal and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Actionstate securities laws.
(f) Such Shareholder is the record holder and beneficial owner The shares of the Shares described opposite such Shareholder's name Common Stock shown on Schedule 1 (or in the Endorsement executed ANNEX A as owned by such Shareholder).
(g) Such Shares constitute Shareholder are the only shares of capital stock securities of the Company owned by him, beneficially or of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rightsrecord, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated options outstanding pursuant to the Termination AgreementCompany's existing employee stock option plan, neither such Shareholder nor and he owns no other options to purchase or rights to subscribe for or otherwise acquire any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more securities of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 1 contract
Representations and Warranties of the Shareholders. Each (i) Shareholder party hereto is the record and beneficial owner of, or Shareholder exercises voting power over, the shares of Company Common Stock indicated on the date hereof hereby represents final page of this Agreement, which, on and warrants to the Company and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date hereof, are free and clear of 7 any Encumbrances that would adversely affect the ability of Shareholder to carry out the terms of this Agreement except with respect to the encumbrances on which Shares beneficially owned by Kenn▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ described in Section 5.16(b) of the Merger Agreement. The number of Shares set forth on the signature pages hereto are the only Shares beneficially owned by such Person executes Shareholder and, except as set forth on such Endorsement) that:signature pages, the Shareholder holds no options to purchase or rights to subscribe for or otherwise acquire any securities of the Company and has no other interest in or voting rights with respect to any securities of the Company.
(aii) Such Shareholder is duly organized and validly existing as a legal entity under has the laws of its jurisdiction of organization, with full requisite power and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party enter into this Agreement and to consummate the transaction contemplated by this Agreement. The execution and delivery of this Agreement by such Shareholder and the consummation by such Shareholder of the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.
(b) The Principal Agreements to which such Shareholder is a party by this Agreement have been duly and validly authorized, authorized by all necessary action. This Agreement has been duly executed and delivered by such Shareholder and constitute the legal, constitutes a valid and binding obligations obligation of such Shareholder, enforceable against such Shareholder in accordance with their its terms, except (i) as such enforceability the same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws of general application relating to or affecting creditors' rights rights, and remedies generally and (ii) for the limitations imposed by general equitable principles of equity. The execution and delivery of this Agreement does not, and the consummation of the transactions contemplated by this Agreement and compliance with the provisions of this Agreement will not, conflict with, or result in any violation of, or default (whether applied by with or without notice or lapse of time, or both) under, or give rise to a court right of law termination, cancellation or equity).
(c) The execution, delivery and performance acceleration of any obligation that would result in the creation of any Encumbrance upon any of the Shares owned by such Shareholder under, any provision of applicable law or regulation or of any agreement, judgment, injunction, order, decree, or other instrument binding on such Shareholder or any Shares owned by such Shareholder. No consent, approval, order or authorization of any Governmental Entity is required by or with respect to such Shareholder in connection with the Principal Agreements to which it is a party, compliance execution and delivery of this Agreement by such Shareholder with all of the provisions thereof and or the consummation by such Shareholder of the transactions contemplated thereby will not:
by this Agreement, except (i) conflict with or constitute a breach of any for applicable requirements, if any, of the terms or provisions ofSecurities Exchange Act of 1934, or a default underas amended, such Shareholder's constitutive documents;
and the rules and regulations thereunder, and (ii) conflict with where the failure to obtain such consents, approvals, orders or constitute a breach of any covenant, agreement, understanding authorizations would not prevent or Authorization to which such materially delay the performance by Shareholder is a party or by which such Shareholder or any of its Assets and Properties obligations under this Agreement. If this Agreement is bound; or
(iii) violate being executed in a representative or conflict with any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d)fiduciary capacity, the execution, delivery person signing this Agreement has full power and performance by authority to enter into and perform such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory AuthorityAgreement.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 1 contract
Representations and Warranties of the Shareholders. Each The Shareholder party hereto on the date hereof hereby represents and warrants to each of the Investors (and acknowledges that each of the Investors is relying upon such representations and warranties) as follows:
a. The ordinary shares, par value US$0.01 per share, of the Company (the "Ordinary Shares") set forth on Annex I hereto include all Ordinary Shares held of record, owned by, or for which the Shareholder has or shares any voting power or power of disposition, provided that any such shares shall cease to be "Ordinary Shares" from and after such time as such shares are transferred to the extent permitted by Section 2. The Shareholder is the legal and beneficial owner, has sole voting power, sole power of disposition and sole power to agree to all of the matters set forth in this Agreement with respect to the Ordinary Shares set forth on Annex I hereto. The Shareholder has good title to the Ordinary Shares set forth on Annex I hereto, free and clear of all liens, pledges, mortgages and encumbrances. Other than the Ordinary Shares set forth on Annex I hereto, no Ordinary Shares or other voting securities of the Company are beneficially owned or controlled directly or indirectly by the Shareholder (other than as may be issued upon exercise of employee stock options), and the Shareholder does not beneficially own or control directly or indirectly any other Shareholders as of securities having the Effective Date right to vote with respect to the Special Resolutions.
b. The Shareholder has the legal capacity (including, if the Shareholder is a corporation, due corporate authorization) to execute and each Person who becomes a party to deliver this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) that:
(a) Such Shareholder is duly organized and validly existing as a legal entity under the laws of its jurisdiction of organization, with full power and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.
(b) The Principal Agreements to which such Shareholder is a party have hereby. This Agreement has been duly and validly authorized, executed and delivered by such Shareholder the Shareholder, and, assuming the due authorization, execution and constitute delivery by each of the Investors, this Agreement constitutes the legal, valid and binding obligations obligation of such the Shareholder, enforceable against such Shareholder in accordance with their its terms, except as such enforceability may be limited affected by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and other similar laws relating to or affecting creditors' rights and remedies generally and by general equitable principles (whether applied considered in a proceeding in equity or at law). If the Shareholder is married, and the Ordinary Shares of the Shareholder constitute community property or otherwise need spousal or other approval for this Agreement to be legal, valid and binding, this Agreement has been duly authorized, executed and delivered by, and constitutes the legal, valid and binding obligation of, the Shareholder's spouse, enforceable in accordance with its terms, except as such enforceability may be affected by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and general equitable principles (whether considered in a court of law proceeding in equity or equityat law).
(c) The executionc. Neither the execution and delivery of this Agreement by the Shareholder, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such the Shareholder of the transactions contemplated thereby will not:
hereby nor the compliance by the Shareholder with any of the provisions hereof shall (i) conflict with result in any breach of, or constitute a breach default or an event which with notice or lapse of time or both would become a default (or give rise to any third party right of termination, cancellation, material modification or acceleration) under any of the terms terms, conditions or provisions of, or a default under, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of any covenantnote, loan agreement, bond, mortgage, indenture, contract, license, agreement, understanding lease, permit or Authorization other instrument or obligation to which such the Shareholder is a party or by which such the Shareholder or any of its Assets properties or assets (including the Ordinary Shares and Properties is any options issued by the Company to purchase Ordinary Shares ("Options")) may be bound; or
, (ii) except for filings under U.S. securities laws, require on the part of the Shareholder any filing with, or permit, authorization, consent or approval of, any Governmental Authority, (iii) violate any order, writ, injunction, decree, judgment or conflict with any law applicable to such the Shareholder or any of its Assets and Properties.
properties or assets, or (div) Except as specified conflict with or result in Schedule 2.1(da default under any provision of the certificate of incorporation, bylaws or similar organizational documents of the Shareholder (if not a natural person), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) excluding from clauses (i), (ii) There is no Action pending and (iii) above such violations, breaches, defaults or failures to which such Shareholder is a party make any filing or to obtain any permit, authorization, consent or approval which any of would not, individually or in the Shares it owns or controlsaggregate, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements materially delay or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects impair the ability of such the Shareholder to perform its obligations thereunderunder this Agreement.
d. There is no private or governmental Action pending before any Governmental Authority, (ii) or, to the knowledge of such the Shareholder, no such Action is threatenedthreatened against the Shareholder or any of its properties or any of its officers or directors in the case of a corporate entity (in their capacities as such) that, and (iii) there are no facts individually or circumstances known to such Shareholder that in the aggregate, would reasonably be expected to give rise materially delay or impair the Shareholder's ability to any such Action.
(f) Such perform its obligations under this Agreement. There is no judgment, decree or order against the Shareholder is or, to the record holder and beneficial owner knowledge of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates directors or managementofficers in the case of a corporate entity (in their capacities as such), that would reasonably be expected to materially delay or impair the Shareholder's ability to perform its obligations under this Agreement.
Appears in 1 contract
Representations and Warranties of the Shareholders. Each Shareholder party hereto on of the date hereof hereby Shareholders represents and warrants to the Company and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) PPC that:
(a) Such Shareholder is duly organized and validly existing as a legal entity under the laws of its jurisdiction of organization, with full power and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.
(b) The Principal Agreements to which such Shareholder is a party have This Agreement has been duly and validly authorized, executed and delivered by on behalf of such Shareholder and constitute is the legal, valid and binding obligations obligation of such Shareholder, enforceable against such Shareholder in accordance with their its terms, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and other similar laws affecting creditors' rights and remedies generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). Such execution and delivery do not, and such performance will not, (i) conflict with, violate or breach any order, judgment, injunction or decree of any court, arbitrator, government or governmental agency or instrumentality against or binding on such Shareholder or by general equitable principles which any of his assets or properties are bound, (whether applied by ii) constitute a court of law or equity).
(c) The execution, delivery and performance violation by such Shareholder of the Principal Agreements any law, ordinance, rule or regulation, as such law, ordinance, rule or regulation relates to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not:
hereby or (iiii) conflict with with, violate, breach or constitute a breach of any of the terms or provisions of, or cause a default under, such Shareholder's constitutive documents;
(ii) conflict with under any agreement or constitute a breach of any covenant, agreement, understanding or Authorization instrument to which such Shareholder is a party or by which such Shareholder his assets or any of its Assets properties are bound except for the Option Agreement and Properties is bound; or
Escrow Agreement (iii) violate or conflict with any law applicable as defined in the Option Agreement), which are subject to such Shareholder or any of its Assets and Propertiestermination pursuant to the Option Termination.
(db) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Each Shareholder of the Principal Agreements has valid title to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated owned by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liensany liens, proxiescharges or encumbrances, voting trusts and such Shares are not subject to any claims, whether by virtue of rights, options, contracts, calls, agreements or agreements, understandings or arrangements whatsoever, otherwise except for those arising under the Principal AgreementsOption Agreement and Escrow Agreement, which are subject to termination pursuant to the Option Termination.
(jc) Except for As of the Principal Agreements and the agreements terminated pursuant to the Termination AgreementClosing, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one the performance of this Agreement will not conflict with, breach or more of cause a default under the Shareholders Option Agreement or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or Escrow Agreement and (ii) each Shareholder shall deliver to the CompanyCompany valid title to the Shares owned by such Shareholder, not subject to any claims whether by virtue of its Affiliates rights, options, contracts, calls, agreements or managementotherwise.
Appears in 1 contract
Sources: Shareholder Agreement (Pulitzer Inc)
Representations and Warranties of the Shareholders. Each Shareholder party hereto of the Shareholders, on the date hereof 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 acknowledges that the other Shareholders as of Purchaser is relying on such representations and warranties in connection with the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thattransactions contemplated herein:
(a) Such the Shareholder is duly organized the registered and validly existing as a legal entity under beneficial holder of that number of shares of Modern Meat set forth opposite the laws Shareholder’s name in Schedule “A” (such shares comprising part of its jurisdiction of organizationthe Purchased Shares), with full power good and authority marketable title thereto, free and clear of all liens, mortgages, security interests, pledges, demands, claims and other encumbrances of any nature whatsoever and, except to executethe extent the Shareholder holds Purchased Options or Purchased Warrants set out on Schedule B, deliver and perform its obligations under the Principal Agreements Shareholder has no rights or options to which it is a party and to consummate receive or acquire additional shares of Modern Meat. No Person other than the transactions contemplated therebyPurchaser has, and is not required to be qualified as a foreign corporation or has any right capable of becoming, any agreement, option, right or privilege for the purchase or other entity authorized to do business acquisition from the Shareholder of any of such Purchased Shares. There are no restrictions of any kind on the transfer of the Shareholder’s Purchased Shares except those set out in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute the constating documents of Modern Meat and deliver or perform its obligations under such Principal Agreements.applicable Laws;
(b) The Principal Agreements the Shareholder has good right, full power and absolute authority to which assign, sell and transfer its Purchased Shares in accordance with the terms of this Agreement, free and clear of all liens, mortgages, security interests, pledges, demands, claims and other encumbrances of any nature whatsoever;
(c) the Shareholder has all necessary power, authority and capacity to enter into this Agreement and all other agreements and instruments to be executed by the Shareholder as contemplated by this Agreement and to carry out the obligations thereof under this Agreement and such other agreements and instruments;
(d) if the Shareholder is a party have corporation, the execution and delivery of this Agreement has been duly and validly authorized, executed and delivered authorized by such all necessary corporate action of the Shareholder and constitute the legal, this Agreement constitutes a valid and binding obligations obligation of such the Shareholder, and is enforceable against such Shareholder it in accordance with their termsits terms subject, except as such enforceability may be limited however, to limitations with respect to enforcement imposed by law in connection with bankruptcy, insolvency, reorganization, moratorium reorganization or similar other laws affecting creditors' ’ rights and remedies generally and by general to the extent that equitable principles (whether applied by a court of law or equity).
(c) The execution, delivery remedies such as specific performance and performance by such Shareholder injunctions are only available in the discretion of the Principal Agreements to court from which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not:
(i) conflict with or constitute a breach of any of the terms or provisions of, or a default under, such Shareholder's constitutive documentsthey are sought;
(iie) conflict with or constitute a breach of any covenant, agreement, understanding or Authorization to which such Shareholder is a party or by which such Shareholder or any of its Assets and Properties is bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any no consent, approval, Authorization, other order or action authorization of, filing or registration or declaration with, any applicable Governmental Authority with jurisdiction over the Shareholder is required to be obtained by the Shareholder in connection with the execution and delivery of this Agreement or notice to any Governmental the consummation of the Transaction, except for those consents, orders, authorizations, declarations, registrations or Regulatory Authority.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;
(ef) (i) There is no Action pending to which such the Shareholder is a party resident at the address set forth opposite the Shareholder’s name in Schedule “A”;
(g) the Shareholder has not authorized any person to act as broker or to which finder or in any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of other similar capacity in connection with the transactions contemplated by any of the Principal Agreements, or this Agreement; and
(C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (iih) to the knowledge of such the Shareholder, no such Action is threatened, and (iii) there are no facts representation or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner warranty of the Shares described opposite such Shareholder's name on Schedule 1 (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 Endorsement executed by such Shareholder)statements contained herein or therein not misleading.
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 1 contract
Sources: Share Exchange Agreement
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby represents and warrants warrants, jointly and severally, to the Company and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) hereof that:
(a) Such Shareholder is duly organized and incorporated or formed, validly existing as a legal entity and in good standing under the laws of its jurisdiction of organization, with full power and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation incorporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreementsformation.
(b) Such Shareholder has all requisite power and authority and has taken all action necessary in order to execute and deliver this Agreement and to perform its obligations hereunder. The Principal Agreements to which execution and delivery by such Shareholder is a party have of this Agreement and the performance of each of their obligations hereunder has been duly and validly authorizedauthorized by all necessary action of such Shareholder, including the approval of its board of directors. This Agreement has been duly executed and delivered by such Shareholder and, assuming the due authorization, execution and constitute delivery of this Agreement by the Company, constitutes the legal, valid and binding obligations obligation of such Shareholder, enforceable against such Shareholder in accordance with their its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or and similar laws affecting the enforcement of creditors' rights and remedies generally and and, as to enforceability, by general equitable principles (whether applied by a court of law or equity)principles.
(c) The execution, execution and delivery and performance of this Agreement by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder performance of the transactions contemplated thereby each of its obligations hereunder will not:
not constitute or result in (i) conflict with or constitute a breach of any of the terms or provisions violation of, or a default under, the Organizational Documents of such Shareholder's constitutive documents;
; (ii) conflict a breach or violation of, a termination (or right of termination) or default under, the creation or acceleration of any obligations under, or the creation of an encumbrance on any of the assets of such Shareholder (with or constitute a breach without notice, lapse of time or both) pursuant to, any covenant, agreement, understanding lease, license, contract, note, mortgage, indenture, arrangement or Authorization to which other obligation binding upon such Shareholder is a party Shareholder; or by which such Shareholder or any of its Assets and Properties is bound; or
(iii) conflict with, breach or violate or conflict with any law applicable to such Shareholder or by which its properties are bound or affected, except, in the case of clauses (ii) and (iii) above, for any of its Assets and Properties.
(d) Except as specified breach, violation, termination, default, creation, acceleration or conflict that would not, individually or in Schedule 2.1(d)the aggregate, the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects impair the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Actionunder this Agreement.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 1 contract
Sources: Combination Agreement (CF Industries Holdings, Inc.)
Representations and Warranties of the Shareholders. Each Shareholder party hereto of the Shareholders, on the date hereof 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 acknowledges that the other Shareholders as of Purchaser is relying on such representations and warranties in connection with the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thattransactions contemplated herein:
(a) Such this Agreement has been, and each additional agreement or instrument required to be delivered by the Shareholder pursuant to this Agreement will be prior to the Time of Closing, duly authorized, executed and delivered by the Shareholders and each is, or will be at the Time of Closing, a legal, valid and binding obligation of the Shareholders, enforceable against the Shareholders in accordance with its terms;
(b) if the Shareholders is duly organized and not an individual, the Shareholders is validly existing as a legal entity under the laws of its jurisdiction of organizationorganization and has the corporate or other power to enter into this Agreement and any other agreement to which it is, with full power or is to become, a party to pursuant to the terms hereof and authority to execute, deliver and perform its obligations hereunder and thereunder;
(c) the execution and delivery of this Agreement does not, and the consummation of the Transaction will not, (i) if the Shareholders is not an individual, result in a breach or violation of the articles or by-laws of the Shareholders (or other constating documents of the Shareholder) or of any resolutions of the directors or shareholders of the Shareholders, or (ii) violate any provision of any applicable law or regulation or any judicial or administrative order, award, judgment or decree applicable to the Shareholders;
(d) the Shareholder is the registered and beneficial owner of that number of Global shopCBD Shares, 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 nature whatsoever;
(e) other than as Disclosed, 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 Purchased Shares held or beneficially owned by the Shareholder and none of such common shares of Global shopCBD are subject to any voting trust, shareholders agreement, voting agreement or other agreement with respect to the disposition or enjoyment of any rights of such common shares of Global shopCBD;
(f) no consent, approval, order or authorization of, or registration or declaration with, any applicable Governmental Authority with jurisdiction over the Shareholder is required to be obtained by the Shareholders in connection with the 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 Principal Agreements 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 “B” (in which case the Shareholder makes the representations, warranties and covenants therein):
(i) the offer to which 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, if applicable, was in the United States;
(ii) the Shareholder is not a party and to consummate U.S. Person, is not in the transactions contemplated thereby, United States and is not required to be qualified as acquiring the applicable Payment Shares on behalf of, or for the account or benefit of, a foreign corporation U.S. Person or other entity authorized to do business a person in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.the United States;
(biii) The Principal Agreements to which such Shareholder is a party have been duly and validly authorized, at the time this Agreement was executed and delivered by such Shareholder and constitute the legal, valid and binding obligations of such Shareholder, enforceable against such 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 accordance with their termsthe United States, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and by general equitable principles (whether applied by a court of law or equity).in compliance with the U.S. Securities Act; and
(cvi) The execution, delivery the current structure of this transaction and performance all transactions and activities contemplated in this Agreement is not a scheme by such the Shareholder to avoid the registration requirements of the Principal Agreements to which it is a partyU.S. Securities Act and any applicable state securities laws;
(i) Non-Resident Shareholders represent, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will notwarrant and/or acknowledge, as applicable, that:
(i) conflict with or constitute a breach 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 or provisions of, or a default under, such Shareholder's constitutive documents;of this Agreement is being made in reliance on applicable exemptions; and
(ii) conflict with or constitute a breach the receipt of any covenant, agreement, understanding or Authorization to which such Shareholder is a party or the Payment Shares by which such Shareholder or Non-Resident Shareholders does not contravene any of its Assets and Properties is bound; or
(iii) violate or conflict with any law the applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified securities legislation in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to jurisdiction in which it is a party, the compliance by such Shareholder with all of the provisions thereof resident and the consummation by such Shareholder of the transactions contemplated thereby will does not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) trigger: (i) There is no Action pending any obligation to which such Shareholder is prepare and file a party prospectus or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result insimilar document, or could reasonably be expected any other report with respect to result in, such transfer; and (ii) any registration or other obligation on the issuance part of an order which Purchaser;
(Aj) questions the validity of Shareholder has not authorized any of the Principal Agreements person to act as broker or finder or in any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of other similar capacity in connection with the transactions contemplated by this Agreement, that in any of manner may or will impose liability on Global shopCBD or the Principal Agreements, or Purchaser; and
(C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (iik) to the knowledge of such the Shareholder, no such Action is threatened, and (iii) there are no facts representation or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner warranty of the Shares described opposite such Shareholder's name on Schedule 1 (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 Endorsement executed by such Shareholder)statements contained herein or therein not misleading.
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 1 contract
Sources: Share Exchange Agreement
Representations and Warranties of the Shareholders. Each -------------------------------------------------- Shareholder party hereto on the date hereof hereby represents and warrants to the Company Parent and the other Shareholders Purchaser, severally and not jointly, as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thatfollows:
(a) Such Shareholder is duly organized the record and validly existing beneficial owner of the shares of Common Stock (as a may be adjusted from time to time pursuant to Section 7, the "Shares") set forth opposite his name on Schedule 1 to this Agreement. ------ For purposes of this Agreement, and subject to Section 7, the term "Shares" does not include any option exercisable into Common Stock. Schedule 1 lists separately all options issued to such Shareholder.
(b) Such Shareholder has the legal entity under the laws of its jurisdiction of organization, with full power capacity to execute and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party this Agreement and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreementshereby.
(bc) The Principal Agreements to which such Shareholder is a party have This Agreement has been duly and validly authorized, executed and delivered by such Shareholder and constitute constitutes the legal, valid and binding obligations obligation of such Shareholder, enforceable against such Shareholder in accordance with their its terms, except (i) as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar and other laws of general application affecting enforcement of creditors' rights generally, and remedies generally (ii) the availability of the remedy of specific performance or injunctive or other forms of equitable relief may be subject to equitable defenses and by general equitable principles (whether applied by a would be subject to the discretion of the court of law or equity)before which any proceeding therefor may be brought.
(cd) The execution, Neither the execution and delivery and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and this Agreement nor the consummation by such Shareholder of the transactions contemplated thereby hereby will not:
(i) conflict with or constitute result in a breach of any of the terms or provisions violation of, or a default under, such Shareholder's constitutive documents;
(ii) or conflict with or constitute a breach of with, any covenantcontract, trust, commitment, agreement, understanding understanding, arrangement or Authorization restriction of any kind to which such Shareholder is a party or by which such Shareholder or any of its Assets and Properties is his assets are bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the . The consummation by such Shareholder of the transactions contemplated thereby hereby will not violate, or require any consent, approval, Authorization, other order or action of, filing with or notice under, any provision of any judgment, order, decree, statute, law, rule or regulation applicable to any Governmental or Regulatory Authoritysuch Shareholder.
(e) (i) There In the case of any Shareholder that is no Action pending to a corporation, limited partnership or limited liability company, such shareholder is an entity duly organized and validly existing under the laws of the state in which it is incorporated or constituted, and each such Shareholder is a party or has all requisite power and authority to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected execute and deliver this Agreement and to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of consummate the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatenedhereby, and (iii) there are no facts or circumstances known has taken all necessary corporate action to such Shareholder that would be expected to give rise to any such Actionauthorize the execution, delivery and performance of this Agreement.
(f) Such Shareholder is The Shares and the record holder and beneficial owner of certificates representing the Shares described opposite owned by such Shareholder's name on Schedule 1 (or in Shareholder are now, and at all times during the Endorsement executed term hereof will be, held by such Shareholder).
(g) Such Shares constitute , or by a nominee or custodian for the only shares benefit of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liensliens, claims, security interests, proxies, voting trusts or agreements, options, rights, understandings or arrangements whatsoeveror any other encumbrances whatsoever on title, transfer, or exercise of any rights of a shareholder in respect of such Shares (collectively, "Encumbrances"), except for those any such Encumbrances arising under the Principal Agreementshereunder.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 1 contract
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby Shareholder, severally and not jointly, represents and warrants to the Company and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders Shareholders, as of the date on which hereof or as of the date such Person executes such Endorsement) Shareholder becomes a party hereto, that:
(a) Such Shareholder is an entity duly organized and validly existing as a legal entity under the laws Laws of the jurisdiction of its jurisdiction of organization, with .
(b) Such Shareholder has full power and authority to executeenter into, deliver and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its this Agreement. The execution and delivery of this Agreement and the performance of the rights and obligations under such Principal Agreements.
(b) The Principal Agreements to which such Shareholder is a party hereunder have been duly and validly authorized, executed and delivered authorized by such Shareholder and constitute no other proceedings by or on behalf of such Shareholder will be necessary to authorize this Agreement or the legal, performance of the rights and obligations hereunder. This Agreement constitutes the valid and binding obligations of such Shareholder, Shareholder enforceable against such Shareholder it in accordance with their its terms, except as such the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium reorganization or other similar laws Laws affecting enforcement of creditors' rights and remedies generally and by (ii) subject to general equitable principles (whether applied by a court of law or equity).
(c) The execution, delivery and performance of this Agreement by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not:
not (i) conflict with violate (A) the Organizational Documents of such Shareholder or constitute (B) any Law, treaty, rule or regulation applicable to or binding upon such Shareholder or any of its properties or assets or (ii) result in a breach of any of the terms or provisions of, or a default under, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of any covenant, agreement, understanding or Authorization contractual obligation to which such Shareholder is a party or by which such Shareholder it or any of its Assets and Properties properties or assets is bound; or
, in the case of each of clauses (iiii)(B) violate or conflict with and (ii) in any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could respect that would reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects have a material adverse effect on the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Actionunder this Agreement.
(fd) Such Shareholder is In the record holder case of Itaú Parent and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h)Corp Group Parent, such Shareholder has sole power of disposition and sole voting power with respect to all such Sharesowns, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in date hereof, directly or indirectly, the Principal Agreements shares of company stock of Company One and Schedule 2.1(i)Company Two, such Shares are held respectively, free and clear of all LiensEncumbrances of any kind on the right to vote or Transfer such shares and has the sole power, proxiesauthority and legal capacity to vote and Transfer such shares and in the case of Company One and Company Two, voting trusts such Company owns, as of the date hereof, the shares of the Chilean Bank referred to in the Recitals free and clear of all Encumbrances of any kind on the right to vote or agreementsTransfer such shares and (together with Itaú Parent and Corp Group Parent) has the sole power, understandings authority and legal capacity to vote and Transfer such shares (in each case other than Encumbrances in favor of the other Shareholder or arrangements whatsoever, except for those arising under the Principal Agreementsits Affiliates).
(je) Except for the Principal Agreements representations and the agreements terminated pursuant to the Termination Agreementwarranties contained in this Section 7.19, neither no such Shareholder Shareholder, nor any other Person or entity acting on behalf of its Affiliates has entered into such Shareholder, makes any agreementrepresentation or warranty, arrangement express or understanding with (i) implied to any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or managementother Shareholder.
Appears in 1 contract
Sources: Shareholders Agreement (Itau Unibanco Holding S.A.)
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby represents and warrants to the Company and the other Shareholders as BCR on behalf of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) Shareholder that:
(a) Such Shareholder is duly organized Stockholder has the full legal right and validly existing as a legal entity under the laws of its jurisdiction of organization, with full power and all authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated thereby, and is not approvals required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or this Agreement and to perform its fully such Stockholder's obligations under such Principal Agreements.
(b) The Principal Agreements to which such Shareholder is a party have hereunder. This Agreement has been duly and validly authorized, executed and delivered by such Shareholder Stockholder and constitute (assuming the legaldue authorization, execution and delivery hereof by BCR) is a valid and binding obligations obligation of such Shareholder, Stockholder enforceable against such Shareholder in accordance with their its terms. The execution and delivery by such Stockholder of this Agreement, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights the consummation of the Contemplated Transactions and remedies generally and by general equitable principles (whether applied by a court of law or equity).
(c) The execution, delivery and the performance by such Shareholder Stockholder of the Principal Agreements to which it is a party, compliance by such Shareholder this Agreement in accordance with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby its terms will not:
not (i) conflict with require the approval or constitute a breach consent of any Governmental Body or the approval or consent of the terms or provisions of, or a default under, such Shareholder's constitutive documents;
any other Person; (ii) conflict with or constitute a result in any breach or violation of any covenantof the terms and conditions of, agreementor constitute (or with notice or lapse of time or both constitute) a default under, understanding any Law or Authorization Order of any Governmental Body applicable to such Stockholder or to the Shares held by such Stockholder, or any Contract to which such Shareholder Stockholder is a party or by or to which such Shareholder Stockholder is or any of its Assets and Properties is boundthe Shares held by such Stockholder are bound or subject; or
or (iii) violate or conflict result in the creation of any Lien on the Shares held by such Stockholder.
(b) Such Shareholder is acquiring the Merger Consideration Shares for its own account, for investment, and not with a view to any law applicable to "distribution" thereof within the meaning of the Securities Act, and such Shareholder has no present or presently contemplated agreement, undertaking, arrangement, obligation, indebtedness or commitment providing for the distribution thereof.
(c) Such Shareholder understands that because the Merger Consideration Shares have not been registered under the Securities Act, it cannot dispose of any or all of its Assets the Merger Consideration Shares unless the relevant shares are subsequently registered under the Securities Act or exemptions from such registration are available. Such Shareholder understands that each certificate representing the Merger Consideration Shares will bear the following legend or one substantially similar thereto: The securities represented by this certificate have not been registered under the Securities Act of 1933 (the "Act"). These securities have been acquired for investment and Propertiesnot with a view to distribution or resale, and may not be sold, mortgaged, pledged, hypothecated or otherwise transferred without an effective registration statement for such securities under the Act or an opinion of counsel satisfactory to Big City Radio Inc. is obtained to the effect that an exemption from such registration requirements is available.
(d) Except Such Shareholder is sufficiently knowledgeable and experienced in the making of investments so as specified to be able to evaluate the risks and merits of its investment in Schedule 2.1(d)BCR, and is able to bear the execution, delivery and performance by such Shareholder economic risk of the Principal Agreements to which it is a party, the compliance by such Shareholder with all loss of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authorityits investment in BCR.
(e) (i) There Such Shareholder has been advised that the Merger Consideration Shares have not been and are not being registered under the Securities Act or under the "blue sky" laws of any jurisdiction and that BCR in issuing the Merger Consideration Shares is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controlsrelying upon, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result inamong other things, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability representations and warranties of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.contained in this Article V.
(f) Such Shareholder is has been afforded the record holder opportunity to ask questions of, and beneficial owner receive answers from, BCR and all of its executed officers and directors and to obtain any additional information, to the extent that BCR possesses such information or could have acquired it, necessary to verify the accuracy of the Shares described opposite such Shareholder's name on Schedule 1 (or information contained in any documents delivered to each Shareholder concerning BCR and has in general had access to all information each Shareholder deemed material to an investment decision with respect to the Endorsement executed by such Shareholder)acquisition of the Securities.
(g) Such Shares constitute Shareholder is an "accredited investor" as defined in Rule 501 of Regulation D promulgated under the only shares of capital stock of the Company owned of record or beneficially by such ShareholderSecurities Act.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Such Shareholder has sole power owns his or her shares of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held HIH Common Stock free and clear of any and all Liensliens, proxiesmortgages, voting trusts adverse claims, charges, security interests, encumbrances or agreements, understandings other restrictions or arrangements whatsoever, limitations whatsoever (except for those arising limitations imposed under the Principal AgreementsU.S. federal or applicable state securities laws) and, upon delivery of and payment for such Shares as herein provided, such Stockholder will convey to BCR good and valid title thereto, free and clear of any Lien.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 1 contract
Representations and Warranties of the Shareholders. Each Shareholder party hereto on of the date hereof Shareholders hereby severally (and not jointly), with respect to itself and not with respect to any other Shareholder, represents and warrants to the Company and the other Shareholders REA as follows as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thatClosing Date:
(a) Such the Shareholder is duly organized the sole registered owner of the number of Purchased Shares set out opposite the Shareholder’s name in Schedule “A” hereto;
(b) except as disclosed on Disclosure Schedule 3.1(b) hereto, the Purchased Shares held by the Shareholder are free and validly existing as a legal entity under clear of all Encumbrances;
(c) the laws of its jurisdiction of organization, with full Shareholder has the power and authority to executeenter into, deliver and perform its obligations this Agreement on the terms and conditions set out in this Agreement and to transfer the legal and beneficial title and ownership of the Purchased Shares owned by the Shareholder to REA;
(d) except as disclosed on Disclosure Schedule 3.1(d) hereto, no Person has any agreement or option or a right capable of becoming an agreement for the purchase of the Purchased Shares owned by the Shareholder, other than REA under this Agreement;
(e) if the Principal Agreements to which it Shareholder is a party and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized legal entity, all necessary corporate action on the part of Shareholder will, at Closing, have been taken to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute validly authorize the signing, delivery and deliver or perform its obligations under such Principal Agreements.performance of this Agreement and the completion of the Share Exchange;
(bf) The Principal Agreements to which such Shareholder is this Agreement constitutes a party have been duly and validly authorized, executed and delivered by such Shareholder and constitute the legal, valid and binding obligations obligation of such Shareholder, the Shareholder enforceable against such the Shareholder in accordance with their its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of general application affecting the rights of creditors' rights and remedies generally and by general equitable principles (whether applied by a court of law or equity).;
(cg) The executionexcept as disclosed on Disclosure Schedule 3.1(g) hereto, delivery and the performance by such Shareholder of the Principal Agreements this Agreement will not violate any applicable Laws or any agreement or other instrument to which it the Shareholder is a party, compliance by such ;
(h) the Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not:is not indebted or under obligation to Target on any account;
(i) conflict with or constitute a breach of any of the terms or provisions of, or a default under, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of any covenant, agreement, understanding or Authorization to which such Shareholder is a party or by which such Shareholder or any of its Assets and Properties is bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result resident in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name jurisdiction indicated on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.“A” hereto;
(j) Except for no representation or warranty by Shareholder in this Agreement or any certificate or other document furnished or to be furnished by Shareholder to REA under this Agreement contains or will contain any untrue statement of a material fact or omits to state a material fact necessary to make the Principal Agreements statements contained therein, in light of the circumstances in which they are made, not misleading; and
(k) the Shareholder has been encouraged to obtain and has had opportunity to seek independent legal and tax advice regarding the Share Exchange and matters related thereto as they affect the Shareholder and his, her or its associates and affiliates and the agreements terminated pursuant to Shareholder is satisfied with the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or managementresults thereof.
Appears in 1 contract
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby severally and not jointly represents and warrants to the Company and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) Purchaser that:
(a) Such Shareholder is either (i) an individual or (ii) a corporation or limited partnership, duly organized and validly existing as a legal entity and in good standing under the laws of its jurisdiction state of organization, with full power and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated thereby, organization and is not required to be qualified as a foreign corporation or other entity authorized licensed to do business in any all other jurisdiction in states and jurisdictions the laws of which its require it to be so qualified or licensed and where the failure to be so qualified or licensed would have a material adverse effect Material Adverse Effect on its ability to execute and deliver or perform its such Shareholder's obligations under such Principal Agreementsthis Agreement and/or the transactions contemplated hereby. Such Shareholder owns 100% of its equity interest in the Company free and clear of all liens, claims, and encumbrances, except those arising pursuant to the Warrant. No Person other than Purchaser and the holders of Permitted Stock have any rights, whether granted by the Company or any other Person, to acquire any portion of the equity interest of the Company.
(b) The Principal Agreements Such Shareholder has, and at all times that this Agreement is in force will have, the right and power, and is duly authorized, to which enter into, execute, deliver, and perform this Agreement, and if such Shareholder is a party have not an individual, its officers or agents executing and delivering this Agreement are duly authorized to do so. This Agreement has been duly and validly authorizedexecuted, executed issued, and delivered by such Shareholder and constitute the constitutes a legal, valid valid, and binding obligations obligation of such Shareholder, enforceable against such Shareholder in accordance with their its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and by general equitable principles (whether applied by a court of law or equity).
(c) The execution, delivery delivery, and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby this Agreement will not:
(i) conflict with , by the lapse of time, the giving of notice, or otherwise, constitute a breach violation of any of the terms or provisions ofapplicable provision contained in any agreement, instrument, or a default under, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of any covenant, agreement, understanding or Authorization document to which such Shareholder is a party or by which such Shareholder or any of its Assets and Properties is bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d)There is not now, and at no time during the term of this Agreement will there be, any agreement, arrangement, or understanding involving such Shareholder other than this Agreement, the executionSenior Loan Agreement and the documents contemplated hereby, delivery and performance by modifying, restricting, or in any way affecting the rights of such Shareholder to vote securities of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory AuthorityCompany.
(e) (i) There is no Action pending None of the documents, instruments, or other information furnished to which the Purchaser by such Shareholder is contains any untrue statement of a party material fact or omits to which state any of the Shares it owns or controlsmaterial fact necessary in order to make any statements made therein not misleading. No representation, beneficially or otherwise, is subject, which will result inwarranty, or could reasonably be expected to result instatement made by such Shareholder in this Agreement or in any document, the issuance certificate, exhibit or schedule attached hereto or delivered in connection herewith, contains or will contain any untrue statement of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreementsa material fact, or (C) would, omits or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of will omit to state a material fact necessary to make any such Shareholder to perform its obligations thereunder, (ii) to statements made herein or therein not misleading. To the knowledge of such Shareholder, in its capacity as such, there is no such Action is threatenedfact that materially and adversely affects the condition (financial or otherwise), and (iii) there are no facts results of operations, business, properties, or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock prospects of the Company owned or any of record or beneficially its Subsidiaries that has not been disclosed in the documents provided by such Shareholder.
(h) Except as specified in Shareholder to the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power Purchaser. Pecks makes no representation with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreementsthis paragraph (e).
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 1 contract
Representations and Warranties of the Shareholders. 4.1 Each Shareholder party hereto on of the date hereof Shareholders hereby severally represents and warrants to the Company Acquiror and acknowledges and confirms that the other Shareholders as Acquiror is relying upon such Shareholders’ representations and warranties in connection with the purchase by the Acquiror of the Effective Date (and each Person who becomes a party Acquired Corporation Shares to be transferred by the Shareholders to the Acquiror pursuant to Section 2.1 of this Agreement after and in connection with the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as issuance of the date on which such Person executes such Endorsement) thatConsideration Shares:
(a) Such neither the execution and delivery of this Agreement, or any other agreements and instruments executed in connection with the Transaction by the Shareholder is duly organized and validly existing as a legal entity under nor the laws performance by the Shareholder of its jurisdiction of organization, obligations hereunder and thereunder will conflict with full power and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.
(b) The Principal Agreements to which such Shareholder is a party have been duly and validly authorized, executed and delivered by such Shareholder and constitute the legal, valid and binding obligations of such Shareholder, enforceable against such Shareholder in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and by general equitable principles (whether applied by a court of law or equity).
(c) The execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will notresult in:
(i) conflict with a violation, contravention or constitute a breach by the Shareholder of any of the terms terms, conditions or provisions ofof any agreement or instrument to which such the Shareholder is a party, or by which the Shareholder is bound or constitute a default underby the Shareholder thereunder, or, to the knowledge of the Shareholder, after due inquiry, under any statute, regulation, judgment, decree or law by which the Shareholder is subject or bound, or result in the creation or imposition of any mortgage, lien, charge or Encumbrance of any nature whatsoever upon any of the Shareholder’s Acquired Corporation Shares; or
(ii) a violation by the Shareholder of any law or regulation or any applicable order of any court, arbitrator or governmental authority having jurisdiction over the Shareholder, or require the Shareholder, prior to the Closing or as a condition precedent thereof, to make any governmental or regulatory filings, obtain any consent, authorization, approval, clearance or other action by any Person, or await the expiration of any applicable waiting period;
(b) no Person has any agreement or option or any right or privilege (whether pre-emptive or contractual) capable of becoming an agreement or option for the acquisition from the Shareholder of any of the Shareholder’s Acquired Corporation Shares;
(c) the Shareholder has all necessary power, authority and capacity to enter into theAgreement, and all other agreements and instruments to be executed by it as contemplated by the Agreement and to carry out its obligations under the Agreement, and such other agreements and instruments;
(d) the execution and delivery of the Agreement, and such other agreements and instruments and the consummation of the Transaction have been duly authorized by all necessary corporate action on the part of the Shareholder as may be required;
(e) the Agreement constitutes a valid and binding obligation of the Shareholderenforceable against the undersigned in accordance with its terms subject, however, to limitations with respect to enforcement imposed by law in connection with bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally and to the extent that equitable remedies such as specific performance and injunctions are only available in the discretion of the court from which they are sought;
(f) the Shareholder is the registered and legal beneficial owner of its Acquired Corporation Shares as set forth in Schedule “A” to the Agreement and identified on the signature page hereto and has good and valid title thereto free and clear of any Encumbrances;
(g) the Shareholder has the exclusive right and full power to transfer its Acquired Corporation Shares to the Acquiror as contemplated in the Agreement free and clear of any Encumbrances;
(h) there is not pending or, to the knowledge of the Shareholder's constitutive documents, after due inquiry, threatened or contemplated, any suit, action, legal proceeding, litigation or governmental investigation of any sort which would:
(i) in any manner restrain or prevent the Shareholder from effectually or legally transferring its Acquired Corporation Shares to the Acquiror in accordance with the Agreement;
(ii) conflict with or constitute a breach of cause any covenant, agreement, understanding or Authorization Encumbrance to which such Shareholder is a party or by which such Shareholder or any of be attached to its Assets and Properties is boundAcquired Corporation Shares;
(iii) divest title to its Acquired Corporation Shares; or
(iiiiv) violate make the Acquiror or conflict the Corporation liable for damages in connection with any law applicable to such Shareholder or any of its Assets and Properties.the Transaction;
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such the undersigned, after due inquiry, there is not pending, threatened or contemplated, any suit, action, legal proceeding, litigation or governmental investigation of any sort relating to the Shareholder, no such Action its Acquired Corporation Shares or the Transaction, nor is threatened, and (iii) there are no any present state of facts or circumstances known which can be reasonably anticipated to be a basis for any such suit, action, legal proceeding, litigation or governmental investigation nor is there presently outstanding against the Shareholder, any judgment, decree, injunction, rule or order of any court, governmental department, commission, agency, instrumentality, or arbitrator;
(j) the Shareholder has not entered into any agreement that would be expected to give rise entitle any person to any such Action.
(f) Such Shareholder is valid claim against the record holder and beneficial owner Acquiror for a broker’s commission, finder’s fee, or any like payment in respect of the acquisition and sale of the Acquired Corporation Shares described opposite such Shareholder's name on Schedule 1 (or any other matters contemplated by the Agreement, and in the Endorsement executed by such Shareholder).
(g) Such Shares constitute event that any Person acting or purporting to act for the only shares of capital stock of undersigned establishes a claim for any fee from the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in Acquiror, the Principal Agreements Shareholder severally covenants to indemnify and Schedule 2.1(h), such Shareholder has sole power of disposition hold harmless the Acquiror with respect thereto and sole voting power with respect to all such costs reasonably incurred in the defence thereof;
(k) the Shareholder has had the opportunity to ask questions of and receive answers from the Acquiror regarding the acquisition of the Consideration Shares, and has received all the information regarding Acquiror that it has requested;
(l) the Shareholder acknowledges that the Consideration Shares are highly speculative in nature and that the Shareholder has such sophistication and experience in business and financial matters as to be capable of evaluating the merits and risks of the investment. In connection with the delivery of the Consideration Shares, the Shareholder has not relied upon the Acquiror for investment, legal or tax advice, or other professional advice, and has in all cases sought or elected not to seek the advice of his own personal investment advisers, legal counsel and tax advisers. The Shareholder is able, without impairing his financial condition, to bear the economic risk of, and withstand a complete loss of the investment and he can otherwise be reasonably assumed to have the capacity to protect his own interests in connection with its investment in the Consideration Shares;
(m) the Shareholder acknowledges that the Consideration Shares have not been and will not be registered under the U.S. Securities Act or applicable state securities laws, and the Consideration Shares are being offered and sold to the Shareholder in reliance upon Rule 506(b) of Regulation D and/or Section 4(a)(2) under the U.S. Securities Act;
(n) the Shareholder is an “accredited investor” as defined in Rule 501(a) of Regulation D under the U.S. Securities Act;
(o) the Shareholder acknowledges that it is not acquiring the Consideration Shares as a result of “general solicitation” or “general advertising” (as such terms are used in Regulation D under the U.S. Securities Act), including without limitation, advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or on the internet, or broadcast over radio or television or on the internet, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising;
(p) the Shareholder acknowledges that the Consideration Shares are “restricted securities”, as such term is defined under Rule 144 of the Securities Act, and may not be offered, sold, pledged, or otherwise transferred, directly or indirectly, without prior registration under the U.S. Securities Act and applicable state securities laws, or pursuant to an exemption from the registration requirements of the U.S. Securities Act;
(q) the Shareholder understands that upon the issuance thereof, and until such time as the same is no restrictions on longer required under the applicable requirements of the U.S. Securities Act or applicable U.S. state laws and regulations, the certificates representing the Consideration Shares will bear a legend in substantially the following form: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”). THESE SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT, (C) IN COMPLIANCE WITH THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE U.S. SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER, IF AVAILABLE, AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, OR (D) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE U.S. SECURITIES ACT OR ANY APPLICABLE STATE LAWS, AND THE HOLDER HAS, PRIOR TO SUCH SALE, FURNISHED TO THE CORPORATION AN OPINION OF COUNSEL OR OTHER EVIDENCE OF EXEMPTION, IN EITHER CASE REASONABLY SATISFACTORY TO THE CORPORATION. DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE “GOOD DELIVERY” IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN CANADA.”, provided, that if the Consideration Shares are being sold under clause (B) above, the legend set forth above may be removed by providing a declaration to Acquiror’s registrar and transfer agent in such rightsform as the Resulting Issuer or its registrar and transfer agent may prescribe from time to time, other than such restrictions on Transfers as arise to the effect that the sale of the securities is being made in compliance with Rule 904 of Regulation S under the U.S. Securities Act; provided further that if the Consideration Shares are being sold under clauses (C) and (D) above, the legend may be removed by delivery to the Resulting Issuer and its transfer agent of an opinion of counsel of recognized standing in form and substance reasonably satisfactory to the Resulting Issuer to the effect that the legend is no longer required under applicable United States federal securities laws and the terms and conditions requirements of the Principal Agreements.U.S. Securities Act;
(ir) Except none of the foregoing representations and warranties knowingly contains any untrue statement of material fact or knowingly omits to state any material fact necessary to make any such covenant, warranty or representation not misleading to a prospective acquiror seeking full information as specified in to the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.Acquired Corporation Shares; and
(js) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more knowledge of the Shareholders Shareholder, none of the representations and warranties made by the Corporation in Section 3.1 of this Agreement is untrue or inaccurate in any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or managementmaterial respect.
Appears in 1 contract
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof Shareholder, several but not jointly, hereby represents and warrants to Qell, Holdco, the Company and the other Shareholders Merger Sub as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders itself as of the date on which such Person executes such Endorsement) thatfollows:
(a) Such The Shareholder is duly organized the sole and validly unrestricted owner (and is registered as such in the list of shareholders of the Company) of (except with respect to the existing sub-participation agreements which existence was previously disclosed to Qell and the Company), and has good, valid and marketable title to, the Covered Shares, free and clear of Liens or any other limitations or restrictions (including any restriction on the right to vote, sell or otherwise dispose of the Covered Shares) other than Liens (a) pursuant to (i) this Agreement, (ii) the organizational documents of the Company (including, for the purposes hereof, any agreements between or among shareholders of the Company), (iii) the Business Combination Agreement or (iv) any applicable securities Laws or (b) that would not, individually or in the aggregate, reasonably be expected to prevent, delay or impair the ability of the Shareholder to perform its obligations under this Agreement or the consummation of the transactions contemplated by this Agreement or the Business Combination Agreement. As of the date hereof, other than the Covered Shares, the Shareholder does not own, and does not hold or own any rights to acquire (directly or indirectly), any shares in the share capital of the Company (or any securities convertible into, or which can be exchanged for, shares in the share capital of the Company) or any interest therein.
(b) The 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 the Shareholder’s Covered Shares, (ii) has not entered into any voting agreement or voting trust with respect to any of the Shareholder’s Covered Shares that is inconsistent with the Shareholder’s obligations pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of the Shareholder’s Covered Shares that is inconsistent with the Shareholder’s obligations pursuant to this Agreement 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.
(c) The 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 shall deliver evidence of the consent of the Shareholder’s spouse (if applicable) to this Agreement, the Business Combination Agreement and the transactions contemplated thereby (including, but not limited to, the Merger and the Company Share Exchange), and (ii) if the Shareholder is not a natural person, (A) it is a legal entity duly organized, validly existing and, to the extent such concept is applicable, in good standing under the laws Laws of the jurisdiction of its jurisdiction of organization, with full organization and (B) 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 the Principal Agreements to which it is a party this Agreement and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.
(b) The Principal Agreements to which such Shareholder is a party have hereby. This Agreement has been duly and validly authorized, executed and delivered by such the Shareholder and constitute the legal, constitutes a valid and binding obligations agreement of such Shareholder, the Shareholder enforceable against such the Shareholder in accordance with their its terms, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and similar laws Laws affecting creditors' ’ rights and remedies generally and by subject, as to enforceability, to general equitable principles (whether applied by of equity. If this Agreement is being executed in a court representative or fiduciary capacity, the Person signing this Agreement has full power and authority to enter into this Agreement on behalf of law or equity)the Shareholder.
(cd) Other than the filings, notices and reports pursuant to, in compliance with or required to be made under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), and save as provided for under Section 1(d) above, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of waiting periods or authorizations are required to be obtained by the Shareholder from, or to be given by the Shareholder to, or be made by the Shareholder with, any Governmental Entity in connection with the execution, delivery and performance by the Shareholder of this Agreement, the consummation of the transactions contemplated hereby, the Company Share Exchange and the other transactions contemplated by the Business Combination Agreement.
(e) The execution, delivery and performance of this Agreement by such the Shareholder of the Principal Agreements to which it is a partydo not, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby hereby, the Company Share Exchange and the other transactions contemplated by the Business Combination Agreement will not:
, constitute or result in (i) conflict with or constitute a breach of any of the terms or provisions violation of, or a default under, such Shareholder's constitutive documents;
the limited liability company agreement or similar governing documents of the Shareholder (if the Shareholder is not a natural person), (ii) conflict with or constitute 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 covenantbenefit under, agreementthe creation,modification or acceleration of any obligations under or the creation of a Lien on any of the properties, understanding rights or Authorization assets of the Shareholder pursuant to any Contract binding upon the Shareholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 4(d), under any applicable Law to which such the Shareholder is a party subject or by which such Shareholder or any of its Assets and Properties is bound; or
(iii) violate any change in the rights or conflict with obligations of any law applicable to party under any Contract legally binding upon the Shareholder, except, in the case of clause (ii) or (iii) directly above, for any such Shareholder breach, violation, termination, default, creation, acceleration or any of its Assets and Properties.
(d) Except as specified change that would not, individually or in Schedule 2.1(d)the aggregate, the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, prevent or materially delay or impair the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the Shareholder’s ability of such Shareholder to perform its obligations thereunderhereunder or to consummate the transactions contemplated hereby, (ii) to the knowledge consummation of such Shareholder, no such Action is threatened, and (iii) there are no facts the Company Share Exchange or circumstances known to such Shareholder that would be expected to give rise to any such Actionthe other transactions contemplated by the Business Combination Agreement.
(f) Such Shareholder is the record holder and beneficial owner As of the Shares described opposite such date of this Agreement, there is no action, proceeding or investigation pending against the Shareholder or, to the knowledge of the Shareholder's name on Schedule 1 (, threatened against the Shareholder that questions the ownership of the Shareholder’s Owned Shares, the validity of this Agreement or that in any manner challenges or seeks to prevent, enjoin or materially delay the Endorsement executed performance by such Shareholder)the Shareholder of its obligations under this Agreement.
(g) Such Shares constitute The Shareholder is a sophisticated shareholder and has adequate information concerning the only shares business and financial condition of capital stock of Qell and the Company owned to make an informed decision regarding this Agreement and the transactions contemplated by the Business Combination Agreement and has independently and without reliance upon Qell or the Company and based on such information as the Shareholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. The Shareholder acknowledges that Qell and the Company have not made and do not make any representation or warranty, whether express or implied, of record any kind or beneficially character except as expressly set forth in this Agreement. The Shareholder acknowledges that the agreements contained herein with respect to the Covered Shares held by such Shareholderthe Shareholder are irrevocable.
(h) Except as specified The Shareholder understands and acknowledges that each of Qell, Holdco, the Company and Merger Sub is entering into the Business Combination Agreement in reliance upon the Principal Agreements Shareholder’s execution and Schedule 2.1(h), such Shareholder has sole power delivery of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws this Agreement and the terms representations, warranties, covenants and conditions other agreements of the Principal AgreementsShareholder contained herein.
(i) Except No investment banker, broker, finder or other intermediary is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which Qell, Holdco, Merger Sub or the Company is or will be liable in connection with the transactions contemplated hereby based upon arrangements made by the Shareholder in his, her or its capacity as specified in the Principal Agreements and Schedule 2.1(i)a shareholder or, such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more knowledge of the Shareholders Shareholder, on behalf of the Shareholder in his, her or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or managementcapacity as a shareholder.
Appears in 1 contract
Sources: Business Combination Agreement (Qell Acquisition Corp)
Representations and Warranties of the Shareholders. Each Shareholder party hereto of the Shareholders, on the date hereof 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 acknowledges that the other Shareholders as of Purchaser is relying on such representations and warranties in connection with the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thattransactions contemplated herein:
(a) Such this Agreement has been, and each additional agreement or instrument required to be delivered pursuant to this Agreement will be prior to the Time of Closing, duly authorized, executed and delivered by the Shareholder and each is, or will be at the Time of Closing, a legal, valid and binding obligation of the Shareholder, enforceable against the Shareholder in accordance with its terms;
(b) if the Shareholder is duly organized and not an individual, the Shareholder is validly existing as a legal entity under the laws of its jurisdiction of organizationorganization and has the corporate or other power to enter into this Agreement and any other agreement to which it is, with full power or is to become, a party to pursuant to the terms hereof and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party hereunder and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.
(b) The Principal Agreements to which such Shareholder is a party have been duly and validly authorized, executed and delivered by such Shareholder and constitute the legal, valid and binding obligations of such Shareholder, enforceable against such Shareholder in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and by general equitable principles (whether applied by a court of law or equity).thereunder;
(c) The executionthe execution and delivery of this Agreement does not, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby Transaction will not:
(i) conflict with or constitute a breach not violate any provision of any of the terms applicable law or provisions of, or a default under, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of any covenant, agreement, understanding or Authorization to which such Shareholder is a party or by which such Shareholder regulation or any of its Assets and Properties is bound; or
(iii) violate judicial or conflict with any law administrative order, award, judgment or decree applicable to such Shareholder or any of its Assets and Properties.the Shareholder;
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder registered and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only that number of common shares of capital stock Mydecine set forth opposite the Shareholder’s name in Schedule “A” (such common share comprising part of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(hPurchased Shares), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxiescharges, mortgages, security interests, pledges, demands, claims and other 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 Mydecine (namely the Purchased Shares), held or beneficially owned by the Shareholder and none of such common shares of Mydecine are subject to any voting trust, shareholders agreement, voting trusts agreement or agreementsother agreement with respect to the disposition or enjoyment of any rights of such common shares of Mydecine;
(f) no consent, understandings approval, order or arrangements whatsoeverauthorization of, or registration or declaration with, any applicable Governmental Authority with jurisdiction over the Shareholder is required to be obtained by the Shareholder in connection with the execution and delivery of this Agreement or the consummation by the Shareholder of the Transaction, except for those arising 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 Principal Agreements.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;
(i) the Shareholder has not authorized any person to act as broker or finder or in any other similar capacity in connection with the transactions contemplated by this Agreement, that in any manner may or will impose liability on Mydecine or the Purchaser; and
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more knowledge of the Shareholders Shareholder, no representation or warranty of the Shareholder contained in this Agreement contains any untrue statement of their respective Affiliates with respect a material fact or omits to matters relating state a material fact necessary in order to make the Company, its management statements contained herein or any Shares or (ii) the Company, any of its Affiliates or managementtherein not misleading.
Appears in 1 contract
Sources: Share Exchange Agreement
Representations and Warranties of the Shareholders. Each Shareholder party hereto of the Shareholders, on the date hereof 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 acknowledges that the other Shareholders as of Purchaser is relying on such representations and warranties in connection with the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thattransactions contemplated herein:
(a) Such this Agreement has been, and each additional agreement or instrument required to be delivered by the Shareholder pursuant to this Agreement will be prior to the Time of Closing, duly authorized, executed and delivered by the Shareholders and each is, or will be at the Time of Closing, a legal, valid and binding obligation of the Shareholders, enforceable against the Shareholders in accordance with its terms;
(b) if the Shareholders is duly organized and not an individual, the Shareholders is validly existing as a legal entity under the laws of its jurisdiction of organizationorganization and has the corporate or other power to enter into this Agreement and any other agreement to which it is, with full power or is to become, a party to pursuant to the terms hereof and authority to execute, deliver and perform its obligations hereunder and thereunder;
(c) the execution and delivery of this Agreement does not, and the consummation of the Transaction will not, (i) if the Shareholders is not an individual, result in a breach or violation of the articles or by-laws of the Shareholders (or other constating documents of the Shareholder) or of any resolutions of the directors or shareholders of the Shareholders, or (ii) violate any provision of any applicable law or regulation or any judicial or administrative order, award, judgment or decree applicable to the Shareholders;
(d) the Shareholder is (or will be) the registered and beneficial owner of that number of ▇▇▇▇▇ ▇▇▇▇▇▇, 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 nature whatsoever;
(e) other than as Disclosed, 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 Purchased Shares held or beneficially owned by the Shareholder and none of such common shares of Rosey are subject to any voting trust, shareholders agreement, voting agreement or other agreement with respect to the disposition or enjoyment of any rights of such common shares of ▇▇▇▇▇;
(f) no consent, approval, order or authorization of, or registration or declaration with, any applicable Governmental Authority with jurisdiction over the Shareholder is required to be obtained by the Shareholders in connection with the 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 Principal Agreements 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 “C” (in which case the Shareholder makes the representations, warranties and covenants therein):
(i) the offer to which 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, if applicable, was in the United States;
(ii) the Shareholder is not a party and to consummate U.S. Person, is not in the transactions contemplated thereby, United States and is not required to be qualified as acquiring the applicable Payment Shares on behalf of, or for the account or benefit of, a foreign corporation U.S. Person or other entity authorized to do business a person in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.the United States;
(biii) The Principal Agreements to which such Shareholder is a party have been duly and validly authorized, at the time this Agreement was executed and delivered by such Shareholder and constitute the legal, valid and binding obligations of such Shareholder, enforceable against such 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 accordance with their termsthe United States, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and by general equitable principles (whether applied by a court of law or equity).in compliance with the U.S. Securities Act; and
(cvi) The execution, delivery the current structure of this transaction and performance all transactions and activities contemplated in this Agreement is not a scheme by such the Shareholder to avoid the registration requirements of the Principal Agreements to which it is a partyU.S. Securities Act and any applicable state securities laws;
(i) Non-Resident Shareholders represent, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will notwarrant and/or acknowledge, as applicable, that:
(i) conflict with or constitute a breach 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 or provisions of, or a default under, such Shareholder's constitutive documents;of this Agreement is being made in reliance on applicable exemptions; and
(ii) conflict with or constitute a breach the receipt of any covenant, agreement, understanding or Authorization to which such Shareholder is a party or the Payment Shares by which such Shareholder or Non-Resident Shareholders does not contravene any of its Assets and Properties is bound; or
(iii) violate or conflict with any law the applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified securities legislation in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to jurisdiction in which it is a party, the compliance by such Shareholder with all of the provisions thereof resident and the consummation by such Shareholder of the transactions contemplated thereby will does not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) trigger: (i) There is no Action pending any obligation to which such Shareholder is prepare and file a party prospectus or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result insimilar document, or could reasonably be expected any other report with respect to result in, such transfer; and (ii) any registration or other obligation on the issuance part of an order which Purchaser;
(Aj) questions the validity of Shareholder has not authorized any of the Principal Agreements person to act as broker or finder or in any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of other similar capacity in connection with the transactions contemplated by this Agreement, that in any of manner may or will impose liability on Rosey or the Principal Agreements, or Purchaser; and
(C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (iik) to the knowledge of such the Shareholder, no such Action is threatened, and (iii) there are no facts representation or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner warranty of the Shares described opposite such Shareholder's name on Schedule 1 (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 Endorsement executed by such Shareholder)statements contained herein or therein not misleading.
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 1 contract
Sources: Share Exchange Agreement
Representations and Warranties of the Shareholders. 4.1 Each Shareholder party hereto on of the date hereof Shareholders hereby severally represents and warrants to the Company Acquiror and acknowledges and confirms that the other Shareholders as Acquiror is relying upon such Shareholders’ representations and warranties in connection with the purchase by the Acquiror of the Effective Date (and each Person who becomes a party Acquired Corporation Shares to be transferred by the Shareholders to the Acquiror pursuant to Section 2.1 of this Agreement after and in connection with the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as issuance of the date on which such Person executes such Endorsement) thatConsideration Shares:
(a) Such neither the execution and delivery of this Agreement, or any other agreements and instruments executed in connection with the Transaction by the Shareholder is duly organized and validly existing as a legal entity under nor the laws performance by the Shareholder of its jurisdiction of organization, obligations hereunder and thereunder will conflict with full power and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.
(b) The Principal Agreements to which such Shareholder is a party have been duly and validly authorized, executed and delivered by such Shareholder and constitute the legal, valid and binding obligations of such Shareholder, enforceable against such Shareholder in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and by general equitable principles (whether applied by a court of law or equity).
(c) The execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will notresult in:
(i) conflict with a violation, contravention or constitute a breach by the Shareholder of any of the terms terms, conditions or provisions ofof any agreement or instrument to which such the Shareholder is a party, or by which the Shareholder is bound or constitute a default underby the Shareholder thereunder, or, to the knowledge of the Shareholder, after due inquiry, under any statute, regulation, judgment, decree or law by which the Shareholder is subject or bound, or result in the creation or imposition of any mortgage, lien, charge or Encumbrance of any nature whatsoever upon any of the Shareholder’s Acquired Corporation Shares; or
(ii) a violation by the Shareholder of any law or regulation or any applicable order of any court, arbitrator or governmental authority having jurisdiction over the Shareholder, or require the Shareholder, prior to the Closing or as a condition precedent thereof, to make any governmental or regulatory filings, obtain any consent, authorization, approval, clearance or other action by any Person, or await the expiration of any applicable waiting period;
(b) no Person has any agreement or option or any right or privilege (whether pre- emptive or contractual) capable of becoming an agreement or option for the acquisition from the Shareholder of any of the Shareholder’s Acquired Corporation Shares;
(c) the Shareholder has all necessary power, authority and capacity to enter into the Agreement, and all other agreements and instruments to be executed by it as contemplated by the Agreement and to carry out its obligations under the Agreement, and such other agreements and instruments;
(d) the execution and delivery of the Agreement, and such other agreements and instruments and the consummation of the Transaction have been duly authorized by all necessary corporate action on the part of the Shareholder as may be required;
(e) the Agreement constitutes a valid and binding obligation of the Shareholder enforceable against the undersigned in accordance with its terms subject, however, to limitations with respect to enforcement imposed by law in connection with bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally and to the extent that equitable remedies such as specific performance and injunctions are only available in the discretion of the court from which they are sought;
(f) the Shareholder is the registered and legal beneficial owner of its Acquired Corporation Shares as set forth in Schedule “A” to the Agreement and identified on the signature page hereto and has good and valid title thereto free and clear of any Encumbrances;
(g) the Shareholder has the exclusive right and full power to transfer its Acquired Corporation Shares to the Acquiror as contemplated in the Agreement free and clear of any Encumbrances;
(h) there is not pending or, to the knowledge of the Shareholder's constitutive documents, after due inquiry, threatened or contemplated, any suit, action, legal proceeding, litigation or governmental investigation of any sort which would:
(i) in any manner restrain or prevent the Shareholder from effectually or legally transferring its Acquired Corporation Shares to the Acquiror in accordance with the Agreement;
(ii) conflict with or constitute a breach of cause any covenant, agreement, understanding or Authorization Encumbrance to which such Shareholder is a party or by which such Shareholder or any of be attached to its Assets and Properties is boundAcquired Corporation Shares;
(iii) divest title to its Acquired Corporation Shares; or
(iiiiv) violate make the Acquiror or conflict the Corporation liable for damages in connection with any law applicable to such Shareholder or any of its Assets and Properties.the Transaction;
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such the undersigned, after due inquiry, there is not pending, threatened or contemplated, any suit, action, legal proceeding, litigation or governmental investigation of any sort relating to the Shareholder, no such Action its Acquired Corporation Shares or the Transaction, nor is threatened, and (iii) there are no any present state of facts or circumstances known which can be reasonably anticipated to be a basis for any such suit, action, legal proceeding, litigation or governmental investigation nor is there presently outstanding against the Shareholder, any judgment, decree, injunction, rule or order of any court, governmental department, commission, agency, instrumentality, or arbitrator;
(j) the Shareholder has not entered into any agreement that would be expected to give rise entitle any person to any such Action.
(f) Such Shareholder is valid claim against the record holder and beneficial owner Acquiror for a broker’s commission, finder’s fee, or any like payment in respect of the acquisition and sale of the Acquired Corporation Shares described opposite such Shareholder's name on Schedule 1 (or any other matters contemplated by the Agreement, and in the Endorsement executed by such Shareholder).
(g) Such Shares constitute event that any Person acting or purporting to act for the only shares of capital stock of undersigned establishes a claim for any fee from the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in Acquiror, the Principal Agreements Shareholder severally covenants to indemnify and Schedule 2.1(h), such Shareholder has sole power of disposition hold harmless the Acquiror with respect thereto and sole voting power with respect to all such costs reasonably incurred in the defence thereof;
(k) the Shareholder has had the opportunity to ask questions of and receive answers from the Acquiror regarding the acquisition of the Consideration Shares, and has received all the information regarding Acquiror that it has requested;
(l) the Shareholder acknowledges that the Consideration Shares are highly speculative in nature and that the Shareholder has such sophistication and experience in business and financial matters as to be capable of evaluating the merits and risks of the investment. In connection with the delivery of the Consideration Shares, the Shareholder has not relied upon the Acquiror for investment, legal or tax advice, or other professional advice, and has in all cases sought or elected not to seek the advice of his own personal investment advisers, legal counsel and tax advisers. The Shareholder is able, without impairing his financial condition, to bear the economic risk of, and withstand a complete loss of the investment and he can otherwise be reasonably assumed to have the capacity to protect his own interests in connection with its investment in the Consideration Shares;
(m) the Shareholder acknowledges that the Consideration Shares have not been and will not be registered under the U.S. Securities Act or applicable state securities laws, and the Consideration Shares are being offered and sold to the Shareholder in reliance upon Rule 506(b) of Regulation D and/or Section 4(a)(2) under the U.S. Securities Act;
(n) the Shareholder is an “accredited investor” as defined in Rule 501(a) of Regulation D under the U.S. Securities Act;
(o) the Shareholder acknowledges that it is not acquiring the Consideration Shares as a result of “general solicitation” or “general advertising” (as such terms are used in Regulation D under the U.S. Securities Act), including without limitation, advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or on the internet, or broadcast over radio or television or on the internet, or any seminar or meeting whose attendees have been invited by general solicitation or general advertising;
(p) the Shareholder acknowledges that the Consideration Shares are “restricted securities”, as such term is defined under Rule 144 of the Securities Act, and may not be offered, sold, pledged, or otherwise transferred, directly or indirectly, without prior registration under the U.S. Securities Act and applicable state securities laws, or pursuant to an exemption from the registration requirements of the U.S. Securities Act;
(q) the Shareholder understands that upon the issuance thereof, and until such time as the same is no restrictions on longer required under the applicable requirements of the U.S. Securities Act or applicable U.S. state laws and regulations, the certificates representing the Consideration Shares will bear a legend in substantially the following form: “THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “U.S. SECURITIES ACT”). THESE SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (A) TO THE CORPORATION, (B) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT, (C) IN COMPLIANCE WITH THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE U.S. SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER, IF AVAILABLE, AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, OR (D) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE U.S. SECURITIES ACT OR ANY APPLICABLE STATE LAWS, AND THE HOLDER HAS, PRIOR TO SUCH SALE, FURNISHED TO THE CORPORATION AN OPINION OF COUNSEL OR OTHER EVIDENCE OF EXEMPTION, IN EITHER CASE REASONABLY SATISFACTORY TO THE CORPORATION. DELIVERY OF THIS CERTIFICATE MAY NOT CONSTITUTE “GOOD DELIVERY” IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES IN CANADA.”, provided, that if the Consideration Shares are being sold under clause (B) above, the legend set forth above may be removed by providing a declaration to Acquiror’s registrar and transfer agent in such rightsform as the Resulting Issuer or its registrar and transfer agent may prescribe from time to time, other than such restrictions on Transfers as arise to the effect that the sale of the securities is being made in compliance with Rule 904 of Regulation S under the U.S. Securities Act; provided further that if the Consideration Shares are being sold under clauses (C) and (D) above, the legend may be removed by delivery to the Resulting Issuer and its transfer agent of an opinion of counsel of recognized standing in form and substance reasonably satisfactory to the Resulting Issuer to the effect that the legend is no longer required under applicable United States federal securities laws and the terms and conditions requirements of the Principal Agreements.U.S. Securities Act;
(ir) Except none of the foregoing representations and warranties knowingly contains any untrue statement of material fact or knowingly omits to state any material fact necessary to make any such covenant, warranty or representation not misleading to a prospective acquiror seeking full information as specified in to the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.Acquired Corporation Shares; and
(js) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more knowledge of the Shareholders Shareholder, none of the representations and warranties made by the Corporation in Section 3.1 of this Agreement is untrue or inaccurate in any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or managementmaterial respect.
Appears in 1 contract
Sources: Share Exchange Agreement
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof The Shareholders hereby represents represent and warrants warrant to the Company and the other Shareholders Logansport Financial as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thatfollows:
(a) Such Shareholder is duly organized The Shareholders are the record and validly existing as a legal entity under beneficial owners of the laws Shares and the Shares constitute all of its jurisdiction the shares of organization, with full power Logansport Financial capital stock owned of record or beneficially by the Shareholders and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.by Bradshaw;
(b) The Principal Agreements ▇▇▇▇▇▇▇ the Shareholders, Bradshaw nor their af▇▇▇▇▇▇▇▇ have a right to which acquire a beneficial ownership interest in any capital stock of Logansport Financial and no such Shareholder is a party have been duly and validly authorized, executed and delivered by such Shareholder and constitute person has the legal, valid and binding obligations right to vote any shares of such Shareholder, enforceable against such Shareholder in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and by general equitable principles (whether applied by a court capital stock of law or equity)Logansport Financial other than the Shares.
(c) The execution, delivery and performance by such Shareholder sale of the Principal Agreements Shares by the Shareholders to which it is a partyLogansport Financial hereunder will vest in Logansport Financial good and valid right, compliance by such Shareholder with title and interest in and to the Shares, free and clear of all of the provisions thereof claims, liens, pledges, charges, security interests and the consummation by such Shareholder of the transactions contemplated thereby will not:
(i) conflict with or constitute a breach encumbrances of any of the terms or provisions of, or a default under, such Shareholder's constitutive documentsnature;
(iid) conflict with The Shareholders have the full right, power and authority to execute this Agreement, to sell the Shares in accordance herewith, and to carry out the terms of this Agreement;
(e) This Agreement constitutes a valid and binding obligation of the Shareholders and the performance of its terms will not violate any agreement or constitute a breach of any covenant, agreement, understanding or Authorization instrument to which such any Shareholder is a party or by which such Shareholder or any of its Assets and Properties is bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder There is no judgment, suit, lien, claim or proceedings against the record holder and beneficial owner of Shareholders or the Shares described opposite such Shareholder's name on Schedule 1 (which would limit, impair or in affect the Endorsement executed by such Shareholder).Shareholders' title and ownership thereof, or right to sell, assign, transfer and deliver the Shares to Logansport Financial; and
(g) Such The Shareholders are sophisticated investors and are knowledgeable concerning the financial condition and results of operations of Logansport Financial and its subsidiaries and are familiar with the industry in which Logansport Financial operates. The Shareholders acknowledge that the consideration to be paid for the Shares constitute is fair and adequate and that they have access to Logansport Financial's public filings with the only shares of capital stock Securities and Exchange Commission and no disclosures except as set forth in those filings have been requested or are needed by the Shareholders to evaluate the sale of the Company owned of record or beneficially Shares to Logansport Financial as contemplated by such Shareholderthis Agreement.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 1 contract
Sources: Stock Purchase and Standstill Agreement (Logansport Financial Corp)
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby represents and warrants to the Company and the other Shareholders parties hereto, solely as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders itself as of the date on which such Person executes such Endorsement) thatfollows:
(a) Such The Shareholder is duly organized the only record owner of, and validly existing has good, valid and marketable title to, the Covered Shares it owns, free and clear of Liens other than as created by this Agreement or the Governing Documents of the Company (including, for the purposes hereof, any agreements between or among shareholders of the Company), or applicable Laws.
(b) The Shareholder, except as provided in this Agreement or as may be provided in any agreements between or among the Company and the shareholders of the Company, 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 its Covered Shares.
(c) The Shareholder, if it is not an individual, affirms that (i) it is a legal entity duly organized, validly existing and, to the extent such concept is applicable, in good standing under the laws Laws of the jurisdiction of its jurisdiction of organizationorganization and (ii) if such Shareholder is an individual, with full it affirms that the signature on this Agreement is genuine, and such Shareholder has legal competence and capacity to execute the same,
(d) The Shareholder 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 the Principal Agreements to which it is a party this Agreement and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.
(b) The Principal Agreements to which such Shareholder is a party have hereby. This Agreement has been duly and validly authorized, executed and delivered by such the Shareholder and, assuming due authorization and constitute the legalexecution by each other party hereto, constitutes a valid and binding obligations agreement of such Shareholder, the Shareholder enforceable against such the Shareholder in accordance with their its terms, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and similar laws Laws affecting creditors' ’ rights and remedies generally and by subject, as to enforceability, to general equitable principles (whether applied by a court of law or equity).
(ce) The execution, delivery and performance of this Agreement by such the Shareholder of the Principal Agreements to which it is a partydoes not, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby hereby or the Merger and the other transactions contemplated by the Business Combination Agreement will not:
, (i) conflict with with, constitute or constitute result in a breach of any of the terms or provisions violation of, or a default under, such the Governing Documents of the Shareholder's constitutive documents;
, or (ii) conflict with require any consent or constitute a breach approval from any third party that has not been given or other action that has not been taken by any third party, in each case, to the extent that the absence of any covenantsuch consent, agreementapproval or other action would prevent, understanding enjoin or Authorization to which such Shareholder is a party or by which such Shareholder or any of its Assets and Properties is bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d), materially delay the execution, delivery and timely performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authorityits obligations under this Agreement.
(ef) (i) There As of the date of this Agreement there is no Action Proceeding pending against the Shareholder or, to which such Shareholder is a party or to which any the knowledge of the relevant Shareholder, threatened against the Shareholder that questions the beneficial or record ownership of the Shareholder’s Owned Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, this Agreement or would reasonably be expected toto prevent or materially delay, result in impair or adversely affect the issuance performance by the Shareholder of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder)under this Agreement.
(g) Such Shares constitute No investment banker, broker, finder or other intermediary is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which Acquiror or the only shares of capital stock Company is or will be liable in connection with the transactions contemplated hereby based upon arrangements made by the Shareholder in its capacity as a Shareholder of the Company owned of record or beneficially by such ShareholderCompany.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Each Shareholder has sole power of disposition had the opportunity to read the Business Combination Agreement and sole voting power this Agreement and has had the opportunity to consult with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws Shareholder’s tax and the terms and conditions of the Principal Agreementslegal advisors.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 1 contract
Sources: Company Shareholder Support Agreement (JATT Acquisition Corp)
Representations and Warranties of the Shareholders. Each The Shareholder party hereto on the date hereof hereby represents and warrants to the Company and the other Shareholders as each of the Effective Date Investors (and acknowledges that each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which Investors is relying upon such Person executes such Endorsementrepresentations and warranties) thatas follows:
(a) Such The ordinary shares, par value US$0.01 per share, of the Company (the "Ordinary Shares") set forth on Annex I hereto include all Ordinary Shares held of record, owned by, or for which the Shareholder has or shares any voting power or power of disposition, provided that any such shares shall cease to be "Ordinary Shares" from and after such time as such shares are transferred to the extent permitted by Section 2. The Shareholder is duly organized the legal and validly existing beneficial owner, has sole voting power, sole power of disposition and sole power to agree to all of the matters set forth in this Agreement with respect to the Ordinary Shares set forth on Annex I hereto. The Shareholder has good title to the Ordinary Shares set forth on Annex I hereto, free and clear of all liens, pledges, mortgages and encumbrances. Other than the Ordinary Shares set forth on Annex I hereto, no Ordinary Shares or other voting securities of the Company are beneficially owned or controlled directly or indirectly by the Shareholder (other than as a may be issued upon exercise of employee stock options), and the Shareholder does not beneficially own or control directly or indirectly any other securities having the right to vote with respect to the Special Resolutions.
(b) The Shareholder has the legal entity under capacity (including, if the laws of its jurisdiction of organization, with full power and authority to execute, deliver and perform its obligations under the Principal Agreements to which it Shareholder is a party corporation, due corporate authorization) to execute and deliver this Agreement and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.
(b) The Principal Agreements to which such Shareholder is a party have hereby. This Agreement has been duly and validly authorized, executed and delivered by such Shareholder the Shareholder, and, assuming the due authorization, execution and constitute delivery by each of the Investors, this Agreement constitutes the legal, valid and binding obligations obligation of such the Shareholder, enforceable against such Shareholder in accordance with their its terms, except as such enforceability may be limited affected by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and other similar laws relating to or affecting creditors' rights and remedies generally and by general equitable principles (whether applied considered in a proceeding in equity or at law). If the Shareholder is married, and the Ordinary Shares of the Shareholder constitute community property or otherwise need spousal or other approval for this Agreement to be legal, valid and binding, this Agreement has been duly authorized, executed and delivered by, and constitutes the legal, valid and binding obligation of, the Shareholder's spouse, enforceable in accordance with its terms, except as such enforceability may be affected by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and general equitable principles (whether considered in a court of law proceeding in equity or equityat law).
(c) The executionNeither the execution and delivery of this Agreement by the Shareholder, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such the Shareholder of the transactions contemplated thereby will not:
hereby nor the compliance by the Shareholder with any of the provisions hereof shall (i) conflict with result in any breach of, or constitute a breach default or an event which with notice or lapse of time or both would become a default (or give rise to any third party right of termination, cancellation, material modification or acceleration) under any of the terms terms, conditions or provisions of, or a default under, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of any covenantnote, loan agreement, bond, mortgage, indenture, contract, license, agreement, understanding lease, permit or Authorization other instrument or obligation to which such the Shareholder is a party or by which such the Shareholder or any of its Assets properties or assets (including the Ordinary Shares and Properties is any options issued by the Company to purchase Ordinary Shares ("Options")) may be bound; or
, (ii) except for filings under U.S. securities laws, require on the part of the Shareholder any filing with, or permit, authorization, consent or approval of, any Governmental Authority, (iii) violate any order, writ, injunction, decree, judgment or conflict with any law applicable to such the Shareholder or any of its Assets properties or assets, or (iv) conflict with or result in a default under any provision of the certificate of incorporation, bylaws or similar organizational documents of the Shareholder (if not a natural person), excluding from clauses (i), (ii) and Properties(iii) above such violations, breaches, defaults or failures to make any filing or to obtain any permit, authorization, consent or approval which would not, individually or in the aggregate, reasonably be expected to materially delay or impair the ability of the Shareholder to perform its obligations under this Agreement.
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no private or governmental Action pending before any Governmental Authority, or, to which such the knowledge of the Shareholder, threatened against the Shareholder is a party or to which any of its properties or any of its officers or directors in the Shares it owns case of a corporate entity (in their capacities as such) that, individually or controlsin the aggregate, beneficially or otherwise, is subject, which will result in, or could would reasonably be expected to result inmaterially delay or impair the Shareholder's ability to perform its obligations under this Agreement. There is no judgment, decree or order against the issuance Shareholder or, to the knowledge of an order which (A) questions the validity of Shareholder, any of its directors or officers in the Principal Agreements or any action taken or to be taken pursuant theretocase of a corporate entity (in their capacities as such), (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or that would reasonably be expected to, result in to materially delay or impair the issuance of an order which materially adversely affects the Shareholder's ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Actionunder this Agreement.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 1 contract
Representations and Warranties of the Shareholders. Each Shareholder party hereto on of the date hereof hereby Shareholders severally represents and warrants to the Company and the other Shareholders Zygo as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thatfollows:
(a) The execution and delivery of this Agreement, and the consummation and performance of the transactions contemplated hereby, by such Shareholder has been, if applicable, duly and validly authorized by all necessary proceedings. Such Shareholder is duly organized and validly existing as a legal entity under the laws of its jurisdiction of organizationhas full right, with full power and authority to execute, execute and deliver this Agreement and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.
(b) The Principal Agreements to which such Shareholder is a party have hereby. This Agreement has been duly and validly authorized, executed and delivered by such Shareholder and constitute the constitutes a legal, valid and binding obligations obligation of such Shareholder, enforceable against such Shareholder in accordance with their terms, its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and or by general principles governing the availability of equitable principles (whether applied by a court of law or equityremedies).; and
(cb) The execution, delivery and performance of this Agreement by such Shareholder does not violate, conflict with, constitute a default under or result in the breach of any term, condition or provision of, or require the Principal Agreements to which it is a partyconsent of any other party to, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not:
(i) conflict with or constitute a breach any note, credit agreement, bond, mortgage, deed of any of the terms or provisions oftrust, or a default undersecurity interest, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of any covenantindenture, lease, license, contract, agreement, understanding plan or Authorization other instrument or obligation to which such Shareholder is a party or by which such Shareholder or any of its Assets and Properties is bound; or
such Shareholder's properties or assets may be bound or affected or (iiiii) violate any judgment, order, writ, injunction, decree, statute, law, ordinance, rule or conflict with any law regulation applicable to such Shareholder or any such Shareholder's properties or assets, except for such violations, breaches, defaults or rights of its Assets and Properties.
(d) Except termination, cancellation, acceleration, creation, imposition, suspension, revocation or modification as specified in Schedule 2.1(d), the execution, delivery and performance to which requisite waivers or consents have been or will be obtained by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order on or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) prior to the knowledge Closing Date and copies of such Shareholder, no such Action is threatened, and (iii) there are no facts which have been or circumstances known will be delivered to such Shareholder that would be expected to give rise to any such ActionZygo.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 1 contract
Sources: Merger Agreement (Zygo Corp)
Representations and Warranties of the Shareholders. 4.1. Each Shareholder party hereto on the date hereof hereby severally represents and warrants to the Company Interland and the other Shareholders Merger Sub as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thatfollows:
(a) Such Shareholder is duly organized and validly existing as a legal entity under the laws lawful owner of its jurisdiction the shares of organization, with full power and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated thereby, and is not required CTN Common Stock to be qualified as a foreign corporation or other entity authorized exchanged for the Merger Shares pursuant to do business in any other jurisdiction in which its failure this Agreement and has good and clear title to be so qualified would have a material adverse effect such shares of CTN Common Stock, free of all Liens. Such Shareholder is the owner of the number of shares of CTN Common Stock set forth on its ability to execute and deliver or perform its obligations under such Principal Agreementsthe signature page hereof.
(b) The Principal Agreements Such Shareholder has full legal right, power and authority to which such enter into this Agreement and to sell and deliver the shares of CTN Common Stock owned by him in the manner provided herein. Such Shareholder is a party have been has duly and validly authorized, executed this Agreement and has duly and validly executed and delivered all other agreements contemplated hereby, and each of this Agreement and such other agreements executed by such Shareholder him, assuming due authorization, execution and constitute delivery by the legalother parties thereto, valid constitutes a valid, binding and binding obligations enforceable obligation of such Shareholder, enforceable against such Shareholder in accordance with their its terms, except as such to the extent that its enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium reorganization or similar other laws affecting the enforcement of creditors' rights and remedies generally and or by general equitable principles (whether applied by a court of law or equity)principles.
(c) The execution, delivery and performance of this Agreement and the other agreements contemplated hereby by such Shareholder of the Principal Agreements to which it is a partyShareholder, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby hereby or thereby, will not:
(i) conflict with not require, on the part of such Shareholder, any consent, approval, authorization or constitute a breach of any of the terms or provisions other order of, or a default underany filing with, such Shareholder's constitutive documents;
(ii) conflict with any Governmental Entity or constitute a breach of arbitrator, or under any covenantcontract, agreement, understanding agreement or Authorization commitment to which such Shareholder is a party or by which such Shareholder or any property of its Assets and Properties such Shareholder is bound; or
(iii) violate , and will not constitute a violation on the part of such Shareholder of any law, administrative regulation or conflict with ruling or court decree, or any law contract, agreement or commitment, applicable to such Shareholder or any property of its Assets and Propertiessuch Shareholder.
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with has voted all of his shares of CTN Common Stock for the provisions thereof approval of this Agreement and the consummation appropriate Merger Documents as required by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory AuthorityMissouri GBCL.
(e) (i) There is no Action pending to which such Such Shareholder is acquiring the Merger Shares solely for Shareholder's own account for investment purposes and not with a party view to or to which in connection with any sale or other distribution thereof, within the meaning of the Shares it owns or controlsSecurities Act, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) except to the knowledge of extent that such Shareholder, no such Action is threatened, Merger Shares may be sold under an effective registration statement under the Act and any applicable state securities law including sales pursuant to or as permitted by the Stock Rights Agreement (iiias identified in Sections 7.2(e) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Actionand 7.3(e)).
(f) Such Shareholder is the record holder understands and beneficial owner acknowledges that all of the Merger Shares described opposite such Shareholder's name on Schedule 1 (or acquired by Shareholder are to be issued and sold hereunder without registration and in reliance upon certain exemptions under the Endorsement executed by such Shareholder)Securities Act, and in reliance upon certain exemptions from registration requirements under applicable state securities laws.
(g) Such Shares constitute the only shares Shareholder will not make any transfer or assignment of capital stock any of the Company owned of record or beneficially by such ShareholderMerger Shares except in compliance with the Securities Act and any other applicable securities laws.
(h) Except as specified permitted by the Stock Rights Agreement (as identified in Sections 7.2(e) and 7.3(e)), prior to any transfer or disposition not registered under the Principal Agreements and Schedule 2.1(h)Securities Act of any of the Merger Shares, or any shares received on account of such Merger Shares pursuant to a stock dividend, stock split, or similar event, such Shareholder has sole power of will give written notice to Interland, expressing the intention to effect such transfer or disposition and sole voting power with respect describing the proposed transfer or disposition. Such notice shall be accompanied by an opinion of counsel for such Shareholder, reasonably acceptable to all such SharesInterland, with no restrictions on such rights, other than such restrictions on Transfers as arise that the proposed transfer is exempt under the Securities Act and applicable United States federal state securities laws and the terms and conditions of the Principal Agreementslaws.
(i) Except Such Shareholder understands and acknowledges that the Merger Shares will be inscribed with the following legends, or another legend to the same effect and agrees to the restrictions set forth therein: "The shares represented by this certificate have not been registered under the Securities Act of 1933, as specified amended, or under the securities laws of any other jurisdiction, in reliance upon exemptions from the registration requirements of such laws. The shares represented by this certificate may not be sold or otherwise transferred, nor will an assignee or endorsee hereof be recognized as an owner of the shares by the issuer unless (i) a registration statement under the Securities Act of 1933 and other applicable securities laws with respect to the shares and the transfer shall then be in effect, or (ii) permitted by the Stock Rights Agreement (as identified in Sections 7.2(e) and 7.3(e)), and in the Principal Agreements and Schedule 2.1(i)opinion of counsel reasonably satisfactory to the issuer, the shares are transferred in a transaction which is exempt from the registration requirements of such Shares laws." "The shares represented by this certificate are held free and clear subject to a Stock Rights Agreement dated February 2002, which restricts the transfer of all Liensthe shares. A copy of such Agreement may be inspected at the principal office of Interland, proxiesInc., voting trusts or agreements303 Peachtree Center Avenue, understandings or arrangements whatsoeverSuite 500, except for those arising under Atlanta, ▇▇ ▇▇▇▇▇. ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇ubject to the Principal AgreementsEscrow Agreement.
(j) Except Such Shareholder understands and acknowledges that no federal or state agency has made any recommendation or endorsement of the Merger Shares or any finding or determination as to the fairness of the investment in such Merger Shares.
(k) No offer in respect of the Merger Shares was made to the Shareholders by Interland or any person acting on Interland's behalf by means of general or public solicitation or general or public advertising, such as by newspaper or magazine advertisements, by broadcast media, or at any seminar or meeting whose attendees were solicited by such means.
(l) Such Shareholder acknowledges and agrees that Interland has made available information (including the Reports as defined in Section 5.5), and has provided all information concerning Interland and its businesses, assets, liabilities, and rights which the Shareholders have requested in writing to obtain, which information includes, and has not been limited to, the following: the Articles of Incorporation and the Bylaws of Interland, Interland's Report on Form 10-K for the Principal Agreements year ended August 31, 2001, and related Form 10K/A, including "Management's Discussion and Analysis of Financial Conditions and Results of Operatings - Certain Factors," Interland's Annual Report to Shareholders for the agreements terminated pursuant to year ended August 31, 2000, Interland's Proxy Statement dated July 5, 2001 (the Termination Agreement"Merger Proxy") contained in the Registration Statement on Form S-4 (Reg. No. 333-61368), neither including "Risk Factors", and copies of all press releases issued by Interland since December 31, 2000, and certain updated information identified in an "Acknowledgement of Confidential Disclosure Statement" executed as of even date herewith by each Shareholder (collectively, the "Interland Disclosure"). Each Shareholder acknowledges and agrees that such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more received all information such Shareholder requires in order to make their respective investment decisions herein. Each Shareholder acknowledges that certain of the Shareholders statements made by Interland herein and in the Reports are forward-looking statements under the Private Securities Litigation Reform Act of 1995. Those statements are or any were made based on management's current expectations and estimates, and actual results may differ materially due to risks and uncertainties.
(m) Such Shareholder hereby acknowledges that the Merger Shares are a speculative investment. Each Shareholder represents that he or she can bear the economic risks of their respective Affiliates such an investment for an indefinite period of time.
(n) Such Shareholder has significant knowledge and experience in financial and business matters, and particularly the business conducted by Interland, and is capable of evaluating the risk of the investment in Merger Shares contemplated by this Agreement.
(o) Such Shareholder has carefully read this Agreement and discussed its requirements and other applicable limitations (including those set forth in Rule 144 under the Securities Act) with respect to matters relating the transfer or other disposition of the Merger Shares with legal counsel.
(p) Such Shareholder understands and acknowledges that the desirability of an investment in Interland may be influenced by the federal income tax consequences, and by the various state and local tax consequences, arising from such Shareholder's receipt of the Merger Shares. Because such tax effects depend, among other things, on the specific facts, circumstances and intentions of each of the Shareholders, such Shareholder has not relied upon Interland or its representatives as to such matters. Each Shareholder represents that he has taken into account the Companyeffects of federal, its management or any Shares or (ii) state and local tax laws on receipt of the Company, any of its Affiliates or managementMerger Shares.
Appears in 1 contract
Representations and Warranties of the Shareholders. Each Shareholder party hereto Other than as Disclosed, each of the Shareholders, on the date hereof its own behalf and not on behalf of any other Shareholders, hereby severally and proportionally based on its ownership of Purchased Shares (and, for greater certainty, not jointly with any other Shareholders) represents and warrants to the Company Purchaser as follows and acknowledges that the other Shareholders as of Purchaser is relying on such representations and warranties in connection with the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thattransactions contemplated herein:
(a) Such this Agreement has been, and each additional agreement or instrument required to be delivered by the Shareholder pursuant to this Agreement will be prior to the Time of Closing, duly authorized, executed and delivered by the Shareholders and each is, or will be at the Time of Closing, a legal, valid and binding obligation of the Shareholders, enforceable against the Shareholders in accordance with its terms;
(b) if the Shareholder is duly organized and not an individual, the Shareholder is validly existing as a legal entity under the laws of its jurisdiction of organizationorganization and has the corporate or other power to enter into this Agreement and any other agreement to which it is, with full power or is to become, a party to pursuant to the terms hereof and authority to execute, deliver and perform its obligations hereunder and thereunder;
(c) the execution and delivery of this Agreement does not, and the consummation of the Transaction will not, (i) if the Shareholder is not an individual, result in a breach or violation of 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 (ii) violate any provision of any applicable law or regulation or any judicial or administrative order, award, judgment or decree applicable to the Shareholder;
(d) the Shareholder is the registered and beneficial owner of that number of M▇▇▇▇▇ ▇▇▇▇▇▇ 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 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 Purchased Shares held or beneficially owned by the Shareholder and none of such M▇▇▇▇▇ ▇▇▇▇▇▇ are subject to any voting trust, shareholders agreement, voting agreement or other agreement with respect to the disposition or enjoyment of any rights of such common shares of Midori;
(f) to the knowledge of the Shareholder, no consent, approval, order or authorization of, or registration or declaration with, any applicable Governmental Authority with jurisdiction over the Shareholder is required to be obtained by the Shareholders in connection with the 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 Principal Agreements 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 “C” (in which case the Shareholder makes the representations, warranties and covenants therein):
(i) the offer to which 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, if applicable, was in the United States;
(ii) the Shareholder is not a party and to consummate U.S. Person, is not in the transactions contemplated thereby, United States and is not required to be qualified as acquiring the applicable Payment Shares on behalf of, or for the account or benefit of, a foreign corporation U.S. Person or other entity authorized to do business a person in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.the United States;
(biii) The Principal Agreements to which such Shareholder is a party have been duly and validly authorized, at the time this Agreement was executed and delivered by such Shareholder and constitute the legal, valid and binding obligations of such Shareholder, enforceable against such 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 accordance with their termsthe United States, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and by general equitable principles (whether applied by a court of law or equity).in compliance with the U.S. Securities Act; and
(cvi) The execution, delivery the current structure of this transaction and performance all transactions and activities contemplated in this Agreement is not a scheme by such the Shareholder to avoid the registration requirements of the Principal Agreements to which it is a partyU.S. Securities Act and any applicable state securities laws;
(i) Non-Resident Shareholders represent, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will notwarrant and/or acknowledge, as applicable, that:
(i) conflict with or constitute a breach 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 or provisions of, or a default under, such Shareholder's constitutive documents;of this Agreement is being made in reliance on applicable exemptions; and
(ii) conflict with or constitute a breach the receipt of any covenant, agreement, understanding or Authorization to which such Shareholder is a party or the Payment Shares by which such Shareholder or Non-Resident Shareholders does not contravene any of its Assets and Properties is bound; or
(iii) violate or conflict with any law the applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified securities legislation in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to jurisdiction in which it is a party, the compliance by such Shareholder with all of the provisions thereof resident and the consummation by such Shareholder of the transactions contemplated thereby will does not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) trigger: (i) There is no Action pending any obligation to which such Shareholder is prepare and file a party prospectus or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result insimilar document, or could reasonably be expected any other report with respect to result in, such transfer; and (ii) any registration or other obligation on the issuance part of an order which Purchaser;
(Aj) questions the validity of Shareholder has not authorized any of the Principal Agreements person to act as broker or finder or in any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of other similar capacity in connection with the transactions contemplated by this Agreement, that in any of manner may or will impose liability on Midori or the Principal Agreements, or Purchaser; and
(C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (iik) to the knowledge of such the Shareholder, no such Action is threatened, and (iii) there are no facts representation or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner warranty of the Shares described opposite such Shareholder's name on Schedule 1 (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 Endorsement executed by such Shareholder)statements contained herein or therein not misleading.
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 1 contract
Representations and Warranties of the Shareholders. Each Shareholder party hereto Other than as Disclosed, each of the Shareholders, on the date hereof 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 acknowledges that the other Shareholders as of Purchaser is relying on such representations and warranties in connection with the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thattransactions contemplated herein:
(a) Such this Agreement has been, and each additional agreement or instrument required to be delivered by the Shareholder pursuant to this Agreement will be prior to the Time of Closing, duly authorized, executed and delivered by the Shareholders and each is, or will be at the Time of Closing, a legal, valid and binding obligation of the Shareholders, enforceable against the Shareholders in accordance with its terms;
(b) if the Shareholder is duly organized and not an individual, the Shareholder is validly existing as a legal entity under the laws of its jurisdiction of organizationorganization and has the corporate or other power to enter into this Agreement and any other agreement to which it is, with full power or is to become, a party to pursuant to the terms hereof and authority to execute, deliver and perform its obligations hereunder and thereunder;
(c) the execution and delivery of this Agreement does not, and the consummation of the Transaction will not, (i) if the Shareholder is not an individual, result in a breach or violation of 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 (ii) violate any provision of any applicable law or regulation or any judicial or administrative order, award, judgment or decree applicable to the Shareholder;
(d) the Shareholder is the registered and beneficial owner of that number of Nabati Shares 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 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 Purchased Shares held or beneficially owned by the Shareholder and none of such Nabati Shares are subject to any voting trust, shareholders agreement, voting agreement or other agreement with respect to the disposition or enjoyment of any rights of such common shares of Nabati;
(f) to the knowledge of the Shareholder, no consent, approval, order or authorization of, or registration or declaration with, any applicable Governmental Authority with jurisdiction over the Shareholder is required to be obtained by the Shareholders in connection with the 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 Principal Agreements 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 “C” (in which case the Shareholder makes the representations, warranties and covenants therein):
(i) the offer to which 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, if applicable, was in the United States;
(ii) the Shareholder is not a party and to consummate U.S. Person, is not in the transactions contemplated thereby, United States and is not required to be qualified as acquiring the applicable Payment Shares on behalf of, or for the account or benefit of, a foreign corporation U.S. Person or other entity authorized to do business a person in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.the United States;
(biii) The Principal Agreements to which such Shareholder is a party have been duly and validly authorized, at the time this Agreement was executed and delivered by such Shareholder and constitute the legal, valid and binding obligations of such Shareholder, enforceable against such 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 accordance with their termsthe United States, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and by general equitable principles (whether applied by a court of law or equity).in compliance with the U.S. Securities Act; and
(cvi) The execution, delivery the current structure of this transaction and performance all transactions and activities contemplated in this Agreement is not a scheme by such the Shareholder to avoid the registration requirements of the Principal Agreements to which it is a partyU.S. Securities Act and any applicable state securities laws;
(i) Non-Resident Shareholders represent, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will notwarrant and/or acknowledge, as applicable, that:
(i) conflict with or constitute a breach 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 or provisions of, or a default under, such Shareholder's constitutive documents;of this Agreement is being made in reliance on applicable exemptions; and
(ii) conflict with or constitute a breach the receipt of any covenant, agreement, understanding or Authorization to which such Shareholder is a party or the Payment Shares by which such Shareholder or Non-Resident Shareholders does not contravene any of its Assets and Properties is bound; or
(iii) violate or conflict with any law the applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified securities legislation in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to jurisdiction in which it is a party, the compliance by such Shareholder with all of the provisions thereof resident and the consummation by such Shareholder of the transactions contemplated thereby will does not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) trigger: (i) There is no Action pending any obligation to which such Shareholder is prepare and file a party prospectus or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result insimilar document, or could reasonably be expected any other report with respect to result in, such transfer; and (ii) any registration or other obligation on the issuance part of an order which Purchaser;
(Aj) questions the validity of Shareholder has not authorized any of the Principal Agreements person to act as broker or finder or in any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of other similar capacity in connection with the transactions contemplated by this Agreement, that in any of manner may or will impose liability on Nabati or the Principal Agreements, or Purchaser; and
(C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (iik) to the knowledge of such the Shareholder, no such Action is threatened, and (iii) there are no facts representation or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner warranty of the Shares described opposite such Shareholder's name on Schedule 1 (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 Endorsement executed by such Shareholder)statements contained herein or therein not misleading.
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 1 contract
Sources: Share Exchange Agreement
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof Shareholder, several but not jointly, hereby represents and warrants to Qell, Holdco, the Company and the other Shareholders Merger Sub as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders itself as of the date on which such Person executes such Endorsement) thatfollows:
(a) Such The Shareholder is duly organized the sole and validly unrestricted owner (and is registered as such in the list of shareholders of the Company) of (except with respect to the existing sub-participation agreements which existence was previously disclosed to Qell and the Company), and has good, valid and marketable title to, the Covered Shares, free and clear of Liens or any other limitations or restrictions (including any restriction on the right to vote, sell or otherwise dispose of the Covered Shares) other than Liens (a) pursuant to (i) this Agreement, (ii) the organizational documents of the Company (including, for the purposes hereof, any agreements between or among shareholders of the Company), (iii) the Business Combination Agreement or (iv) any applicable securities Laws or (b) that would not, individually or in the aggregate, reasonably be expected to prevent, delay or impair the ability of the Shareholder to perform its obligations under this Agreement or the consummation of the transactions contemplated by this Agreement or the Business Combination Agreement. As of the date hereof, other than the Covered Shares, the Shareholder does not own, and does not hold or own any rights to acquire (directly or indirectly), any shares in the share capital of the Company (or any securities convertible into, or which can be exchanged for, shares in the share capital of the Company) or any interest therein.
(b) The 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 the Shareholder’s Covered Shares, (ii) has not entered into any voting agreement or voting trust with respect to any of the Shareholder’s Covered Shares that is inconsistent with the Shareholder’s obligations pursuant to this Agreement, (iii) has not granted a proxy or power of attorney with respect to any of the Shareholder’s Covered Shares that is inconsistent with the Shareholder’s obligations pursuant to this Agreement 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.
(c) The 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 shall deliver evidence of the consent of the Shareholder’s spouse (if applicable) to this Agreement, the Business Combination Agreement and the transactions contemplated thereby (including, but not limited to, the Merger and the Company Share Exchange), and (ii) if the Shareholder is not a natural person, (A) it is a legal entity duly organized, validly existing and, to the extent such concept is applicable, in good standing under the laws Laws of the jurisdiction of its jurisdiction of organization, with full organization and (B) 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 the Principal Agreements to which it is a party this Agreement and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.
(b) The Principal Agreements to which such Shareholder is a party have hereby. This Agreement has been duly and validly authorized, executed and delivered by such the Shareholder and constitute the legal, constitutes a valid and binding obligations agreement of such Shareholder, the Shareholder enforceable against such the Shareholder in accordance with their its terms, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and similar laws Laws affecting creditors' ’ rights and remedies generally and by subject, as to enforceability, to general equitable principles (whether applied by of equity. If this Agreement is being executed in a court representative or fiduciary capacity, the Person signing this Agreement has full power and authority to enter into this Agreement on behalf of law or equity)the Shareholder.
(cd) Other than the filings, notices and reports pursuant to, in compliance with or required to be made under the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), and save as provided for under Section 1(d) above, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of waiting periods or authorizations are required to be obtained by the Shareholder from, or to be given by the Shareholder to, or be made by the Shareholder with, any Governmental Entity in connection with the execution, delivery and performance by the Shareholder of this Agreement, the consummation of the transactions contemplated hereby, the Company Share Exchange and the other transactions contemplated by the Business Combination Agreement.
(e) The execution, delivery and performance of this Agreement by such the Shareholder of the Principal Agreements to which it is a partydo not, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby hereby, the Company Share Exchange and the other transactions contemplated by the Business Combination Agreement will not:
, constitute or result in (i) conflict with or constitute a breach of any of the terms or provisions violation of, or a default under, such Shareholder's constitutive documents;
the limited liability company agreement or similar governing documents of the Shareholder (if the Shareholder is not a natural person), (ii) conflict with or constitute 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 covenantbenefit under, agreementthe creation, understanding modification or Authorization acceleration of any obligations under or the creation of a Lien on any of the properties, rights or assets of the Shareholder pursuant to any Contract binding upon the Shareholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 4(d), under any applicable Law to which such the Shareholder is a party subject or by which such Shareholder or any of its Assets and Properties is bound; or
(iii) violate any change in the rights or conflict with obligations of any law applicable to party under any Contract legally binding upon the Shareholder, except, in the case of clause (ii) or (iii) directly above, for any such Shareholder breach, violation, termination, default, creation, acceleration or any of its Assets and Properties.
(d) Except as specified change that would not, individually or in Schedule 2.1(d)the aggregate, the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, prevent or materially delay or impair the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the Shareholder’s ability of such Shareholder to perform its obligations thereunderhereunder or to consummate the transactions contemplated hereby, (ii) to the knowledge consummation of such Shareholder, no such Action is threatened, and (iii) there are no facts the Company Share Exchange or circumstances known to such Shareholder that would be expected to give rise to any such Actionthe other transactions contemplated by the Business Combination Agreement.
(f) Such Shareholder is the record holder and beneficial owner As of the Shares described opposite such date of this Agreement, there is no action, proceeding or investigation pending against the Shareholder or, to the knowledge of the Shareholder's name on Schedule 1 (, threatened against the Shareholder that questions the ownership of the Shareholder’s Owned Shares, the validity of this Agreement or that in any manner challenges or seeks to prevent, enjoin or materially delay the Endorsement executed performance by such Shareholder)the Shareholder of its obligations under this Agreement.
(g) Such Shares constitute The Shareholder is a sophisticated shareholder and has adequate information concerning the only shares business and financial condition of capital stock of Qell and the Company owned to make an informed decision regarding this Agreement and the transactions contemplated by the Business Combination Agreement and has independently and without reliance upon Qell or the Company and based on such information as the Shareholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. The Shareholder acknowledges that Qell and the Company have not made and do not make any representation or warranty, whether express or implied, of record any kind or beneficially character except as expressly set forth in this Agreement. The Shareholder acknowledges that the agreements contained herein with respect to the Covered Shares held by such Shareholderthe Shareholder are irrevocable.
(h) Except as specified The Shareholder understands and acknowledges that each of Qell, Holdco, the Company and Merger Sub is entering into the Business Combination Agreement in reliance upon the Principal Agreements Shareholder’s execution and Schedule 2.1(h), such Shareholder has sole power delivery of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws this Agreement and the terms representations, warranties, covenants and conditions other agreements of the Principal AgreementsShareholder contained herein.
(i) Except No investment banker, broker, finder or other intermediary is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which Qell, Holdco, Merger Sub or the Company is or will be liable in connection with the transactions contemplated hereby based upon arrangements made by the Shareholder in his, her or its capacity as specified in the Principal Agreements and Schedule 2.1(i)a shareholder or, such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more knowledge of the Shareholders Shareholder, on behalf of the Shareholder in his, her or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or managementcapacity as a shareholder.
Appears in 1 contract
Sources: Support Agreement (Wiegand Daniel)
Representations and Warranties of the Shareholders. Each Shareholder party hereto of the Shareholders, on the date hereof its own behalf, hereby severally (and, for greater certainty, not jointly with any other Shareholder) represents and warrants to Purchaser as follows and acknowledges that Purchaser is relying on such representations and warranties in connection with the Company and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thattransactions contemplated herein:
(a) Such if the Shareholder is not an individual, it is duly organized and formed, validly existing as a legal entity and in good standing under the laws of its jurisdiction of organizationformation, with full power and authority to executeor if the Shareholder is an individual, deliver and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.of full age of majority;
(b) The Principal Agreements if the Shareholder is an individual, it has the legal authority and capacity and has taken all necessary action and has obtained all necessary approvals to enter into and execute this Agreement and to carry out its obligations hereunder;
(c) if the Shareholder is not an individual, the Shareholder is validly existing under the laws of its jurisdiction of organization and has the corporate or other power to enter into this Agreement and any other agreement to which such Shareholder it is, or is to become, a party have been to pursuant to the terms hereof and to perform its obligations hereunder and thereunder;
(d) this Agreement has been, and each additional agreement or instrument required to be delivered pursuant to this Agreement will be prior to the Closing Time, duly and validly authorized, executed and delivered by such the Shareholder and constitute each is, or will be at the Closing Time, a legal, valid and binding obligations obligation of such the Shareholder, enforceable against such the Shareholder in accordance with their its terms, except as such enforceability that the enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar insolvency and other laws affecting the enforcement of creditors' rights and ’ right generally, by equitable remedies generally and by general equitable principles (whether applied by a court rights of law or equity).
(c) The executionindemnity, delivery contribution and performance by such Shareholder waiver of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not:
(i) conflict with or constitute a breach of any of the terms or provisions of, or a default under, such Shareholder's constitutive documentscontribution;
(ii) conflict with or constitute a breach of any covenant, agreement, understanding or Authorization to which such Shareholder is a party or by which such Shareholder or any of its Assets and Properties is bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any the execution and delivery of this Agreement does not, and the consummation of the Shares it owns or controls, beneficially or otherwise, is subject, which Transaction will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity not violate any provision of any of the Principal Agreements applicable law or regulation or any action taken judicial or to be taken pursuant theretoadministrative order, (B) restrainsaward, enjoins judgment or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) decree applicable to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.;
(f) Such the Shareholder is the record holder registered and beneficial owner of that number of Company Shares set forth opposite the Shareholder’s name in Schedule “A” (such Company Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock comprising part of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(hPurchased Shares), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxiescharges, mortgages, security interests, pledges, demands, claims and other encumbrances of any nature whatsoever;
(g) as of the date hereof, the Shareholder is neither the registered nor beneficial owner of any common shares in the capital of the Purchaser;
(h) 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 voting shares of the Company held or beneficially owned by the Shareholder and none of such shares are subject to any voting trust, shareholders agreement, voting trusts agreement or agreementsother agreement with respect to the disposition or enjoyment of any rights of such shares;
(i) no consent, understandings approval, order or arrangements whatsoeverauthorization of, or registration or declaration with, any applicable Governmental Authority with jurisdiction over the Shareholder is required to be obtained by the Shareholder in connection with the execution and delivery of this Agreement or the consummation by the Shareholder of the Transaction, except for those arising 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 the Principal Agreements.this Agreement;
(j) Except except for the Principal Agreements Non-Resident Shareholders, the Shareholder is not a “non resident” of Canada within the meaning of the Tax Act;
(k) 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 agreements terminated securities laws of any foreign jurisdiction and that the issuance of the Payment Shares pursuant to the Termination Agreement, neither such Shareholder nor 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 its Affiliates has entered into any agreement, arrangement or understanding with the applicable securities legislation in the jurisdiction in which it is resident and does not trigger: (i) any one obligation to prepare and file a prospectus or more of the Shareholders similar document, or any of their respective Affiliates other report with respect to matters relating such transfer; and (ii) any registration or other obligation on the part of Purchaser;
(l) The Shareholder, if receiving Payment Shares, acknowledges:
(i) the Purchaser is not a “reporting issuer” or the equivalent in any jurisdiction of Canada and, accordingly, the Payment Shares will be subject to an indefinite hold period under applicable Securities Laws of Canada;
(ii) the Purchaser Shares are not listed on any stock exchange in Canada and no public market exists for such shares in Canada;
(iii) The first trade in the Payment Shares, other than a trade that is otherwise exempt from the prospectus requirements of applicable Securities Laws of Canada, will be a distribution and subject to the Companyprospectus requirements of applicable Securities Laws of Canada unless:
(A) The Purchaser is and has been a reporting issuer in a jurisdiction of Canada for the four months immediately preceding the trade.
(B) The trade in Payment Shares is not a control distribution.
(C) No unusual effort is made to prepare the market or to create a demand for the Payment Shares that is the subject of the trade.
(D) No extraordinary commission or consideration is paid to a person or company in respect of the trade.
(E) If the selling security holder is an insider or officer of the Purchaser, its management the selling security holder has no reasonable grounds to believe that the Purchaser is in default of applicable Securities Laws of Canada.
(m) to the knowledge of the Shareholder, no representation or warranty of the Shareholder contained in this Agreement contains any Shares 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; and
(n) the Shareholder has not authorized any person to act as broker or finder or in any other similar capacity in connection with the transactions contemplated by this Agreement, that in any manner may or will impose liability on the Company or the Purchaser.
(o) The Shareholder is either (i) an Accredited Investor, within the meaning of SEC Rule 501 of Regulation D promulgated under the 1933 Act or (ii) a Non-U.S. Person, and in either case has such knowledge and experience in financial and business matters that he, she or it is capable of evaluating the Companymerits and risks of acquiring Purchaser Shares, and all information that the Shareholder has provided concerning the Shareholder, the Shareholder’s financial position and knowledge of financial and business matters is true, correct and complete. The Shareholder acknowledges and understands that the Purchaser will rely on the information provided by the Subscriber in this Agreement for purposes of complying with United States federal and applicable state securities laws.
(p) The Shareholder understands that the Purchaser Shares cannot be sold, assigned, transferred, exchanged, hypothecated or pledged, or otherwise disposed of or encumbered except in accordance with the 1933 Act and the U.S. Exchange Act and any other applicable laws, and that there may not be a market for the resale of any such securities. In addition, the Shareholder understands that the Purchaser Shares have not been registered under the Securities Act, or under any applicable state securities or blue sky laws or the laws of any other jurisdiction, and cannot be resold unless they are so registered or unless an exemption from registration is available.
(q) The Shareholder maintains the Shareholder’s domicile, and is not merely a transient or temporary resident, at the residence address shown on Schedule A hereto.
(r) The Shareholder: (i) is knowledgeable of, or has been independently advised as to, the applicable securities laws of the securities regulators having application in the jurisdiction in which the Shareholder is resident (the “Jurisdiction”) which would apply to the acquisition of the Purchaser Shares; (ii) is purchasing the Purchaser Shares pursuant to exemptions from prospectus or equivalent requirements under applicable United States securities laws or, if such is not applicable, the Shareholder is permitted to purchase the Purchaser Shares under the applicable securities laws of the securities regulators in the Jurisdiction without the need to rely on any exemptions; (iii) acknowledges that the applicable securities laws of the authorities in the Jurisdiction do not require the Shareholder to make any filings or seek any approvals of any kind whatsoever from any securities regulator of any kind whatsoever in the Jurisdiction in connection with the issue and sale or resale of any of the Purchaser Shares; and (iv) represents and warrants that, except as cotemplated herein, the acquisition of the Purchaser Shares by the Shareholder does not trigger (A) any obligation to prepare and file a prospectus or similar document, or any other report with respect to such purchase in the Jurisdiction or (B) any continuous disclosure reporting obligation of the Purchaser Company in the Jurisdiction, and the Shareholder will, if requested by the Purchaser, deliver to the Purchaser a certificate or opinion of local counsel from the Jurisdiction which will confirm the matters referred to herein to the satisfaction of the Purchaser.
(s) In the event the Shareholder is Non-U.S. Person, the Shareholder (i) will not, during the period commencing on the date of issuance of the Purchaser Shares and ending on the first anniversary of such date, or such shorter period as may be permitted by Regulation S promulgated under the 1933 Act or other applicable securities law (the “Restricted Period”), offer, sell, pledge or otherwise transfer the Purchaser Shares in the United States, or to a U.S. Person for the account or for the benefit of a U.S. Person, or otherwise in a manner that is not in compliance with Regulation S promulgated under the 1933 Act; (ii) acknowledges and agrees that all offers and sales of the Purchaser Shares prior to the expiration of the Restricted Period shall be made only in accordance with Regulation S promulgated under the 1933 Act, pursuant to registration of the Purchaser Shares under the 1933 Act, or pursuant to an available exemption from the registration requirements under the 1933 Act; (iii) represents and warrants that it was not engaged in, and prior to the expiration of the Restricted Period will not engage in, any short selling of its Affiliates or managementany hedging transaction with respect to the Purchaser Shares, including, without limitation, any put, call or other option transaction, option writing or equity swap, except as in compliance with the 1933 Act; (iv) represents, warrants and covenants that neither the Shareholder nor or any Person acting on the Shareholder’s behalf has engaged, nor will engage, in any directed selling efforts in the United States or to a U.S. Person with respect to the Purchaser Shares and the Shareholder and any Person acting on the Shareholder’s behalf have complied and will comply with the “offering restrictions” requirements of Regulation S promulgated under the 1933 Act; and (v) represents and warrants that the transactions contemplated by this Agreement have not been pre-arranged with a buyer located in the United States or with a U.S. Person, and are not part of a plan or scheme to evade the registration requirements of the 1933 Act.
Appears in 1 contract
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby Shareholder, severally and not jointly, represents and warrants to the Company and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) Purchaser that:
(a) Such such Shareholder is duly organized has good and validly existing as a legal entity under marketable title to his Shares;
(b) other than with respect to the laws Share Purchase and Buy Out Agreement between the Company and each Shareholder (the "Repurchase Agreement"), such Shareholder's Shares are free and clear of its jurisdiction any lien, claim, mortgage, pledge, purchase option, right of organizationfirst refusal, with voting trust, shareholders' agreement, restriction on sale, proxy or encumbrance;
(c) such Shareholder has full power and authority to execute, deliver enter into and perform its obligations under the Principal Agreements to which it is a party this Agreement and to consummate carry out the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.herein;
(bd) The Principal Agreements to which such Shareholder is a party have been duly and validly authorized, executed and delivered by such Shareholder and constitute this Agreement constitutes the legal, valid and binding obligations obligation of such Shareholder, the Shareholder enforceable against such Shareholder him in accordance with their its terms, except as such enforceability may be limited by equitable remedies or by applicable bankruptcy, insolvency, reorganization, moratorium or similar other laws affecting creditors' creditor's rights and remedies generally and by general equitable principles (whether applied by a court of law or equity).generally; and
(ce) The executionother than as set forth on Schedule 2, neither the execution and delivery and performance by such the Shareholder of the Principal Agreements to which it is a partythis Agreement, compliance by such Shareholder with all of the provisions thereof and nor the consummation by such the Shareholder of the transactions contemplated thereby by this Agreement, will not:
(i) violate or conflict with with, or constitute a breach default under (or give rise to any right of termination, cancellation or acceleration under), or result in the creation of any lien on any of the terms properties or provisions of, or a default under, such assets of the Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of Shares to any covenant, agreement, understanding indenture, mortgage or Authorization other instrument to which such the Shareholder is a party or by which such the Shareholder or any of its Assets and Properties is bound; or
(iii) violate his or conflict with any law applicable to such Shareholder her assets may be bound or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorizationaffected, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of than the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunderRepurchase Agreement, (ii) to the knowledge violate any statute, law, rule or regulation or any order, writ, injunction or decree of such Shareholderany court or governmental authority, no such Action is threatened, and or (iii) there are no facts require the approval, authorization or circumstances known consent of any third party other than as may be required under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR Act"), applicable to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 1 contract
Representations and Warranties of the Shareholders. Each Shareholder party hereto on Except as set -------------------------------------------------- forth in the date hereof Schedule of Exceptions, each of the Shareholders hereby severally represents and warrants to the Company to, and the other Shareholders covenants and agrees with, Certicom and Merger Sub as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thatfollows:
(a) Such Shareholder is duly organized and validly existing as a has all requisite legal entity under the laws of its jurisdiction of organizationright, with full power and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party enter into this Agreement and to consummate agree to the transactions contemplated therebyhereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its all of his obligations under such Principal Agreementshereunder.
(b) The Principal Agreements to which such Shareholder is a party have This Agreement has been duly and validly authorized, executed and delivered by such Shareholder and, assuming this Agreement constitutes the valid and constitute binding agreement of the other parties hereto, this Agreement constitutes a legal, valid and binding obligations obligation of such Shareholder, enforceable against such Shareholder in accordance with their its terms, except as such enforceability may be limited by subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting now or hereafter in effect relating to creditors' rights and remedies generally and by subject, as to enforceability, to general equitable principles of equity (regardless of whether applied by enforceability is considered in a court of proceeding at law or in equity).
(c) The execution, execution and delivery and performance by such Shareholder of the Principal Agreements to which it is a partythis Agreement, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby hereby by such Shareholder, will not:
not (i) conflict require any consent, waiver, approval, authorization or permit of, or filing with or notification to, any Governmental Entity, (ii) result in or constitute a breach of any of the terms or provisions ofDefault, or a default underrequire any consent or approval of or notice to any Person, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach result in the creation of an Encumbrance, under or pursuant to any covenant, agreement, understanding other material contract or Authorization agreement to which such Shareholder is a party or by which such Shareholder it or any of its Assets and Properties is assets may be bound; or
, or (iii) violate or conflict with any law Law applicable to such Shareholder or any of its Assets and Propertiesby which he is bound.
(d) Except as specified in Schedule 2.1(d)Such Shareholder owns beneficially and of record, and has good and marketable title to, the executionnumber of shares of Company Stock set forth opposite his name in Section 2.4 of the Schedule of Exceptions, delivery free and performance by clear of any Encumbrance. During the period commencing on the date hereof and ending on the Closing Date, such Shareholder shall retain both record and beneficial ownership of the Principal Agreements to which it is a partyall such shares of Company stock held by him free and clear of any Encumbrance, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require transfer any consent, approval, Authorization, other order or action of, filing with or notice of such shares of Company stock to any Governmental party or Regulatory Authorityother Person or otherwise grant any Encumbrance with respect to such shares of Company Stock.
(e) (i) There is no Action pending The Certicom Common Shares to which be acquired by such Shareholder is in the Merger are being acquired for his own account for investment purposes and not with a party view to, or to which for resale in connection with, any distribution of such shares within the meaning of the Shares it owns or controlsU. S. Securities Act of 1933, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, as amended (the issuance of an order which (A"Securities Act") questions the validity of any of the Principal Agreements or any action taken applicable state -------------- securities or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action"blue sky" laws.
(f) Such Shareholder is understands that the record holder Certicom Common Shares to be issued to the Shareholders in the Merger will not be registered under the Securities Act or qualified under any state securities or "blue sky" laws, and beneficial owner such shares may not be sold or otherwise disposed of except in compliance with the Shares described opposite such Shareholder's name on Schedule 1 (Securities Act or in the Endorsement executed by such Shareholder)reliance upon an exemption therefrom.
(g) Such Shareholder understands that Certicom is relying to a substantial extent on the representations warranties and covenants of such Shareholder as provided in this Agreement and authorizes Certicom to act as it may see fit in full reliance thereon, including, without limitation, placing the following or a similar legend on and stop order against the Certicom Common Shares constitute to be acquired by the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified Shareholders in the Principal Agreements Merger: THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO A HOLD PERIOD THAT EXPIRES AS SET OUT BELOW AND MAY NOT BE TRANSFERRED, TRADED OR OTHERWISE DISPOSED OF UNTIL THE EXPIRY OF SUCH HOLD PERIOD EXCEPT WITH THE CONSENT OF THE COMPANY: DATE HOLD NUMBER PERIOD EXPIRES OF SHARES FOR WHICH HOLD PERIOD EXPIRES [On Closing Date] 25% of initial total [7 months after Closing Date] 6.25% of initial total [8 months after Closing Date] and Schedule 2.1(heach month 6.25% of initial total thereafter THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "U.S. SECURITIES --------------- ACT"), such Shareholder has sole power of disposition and sole voting power with respect to all such SharesAND MAY BE OFFERED, with no restrictions on such rightsSOLD OR OTHERWISE TRANSFERRED ONLY (A) TO --- THE COMPANY, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(iB) Except as specified in the Principal Agreements and Schedule 2.1(i)IN ACCORDANCE WITH RULE 144 UNDER THE U.S. SECURITIES ACT, such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.IF APPLICABLE,
Appears in 1 contract
Sources: Merger Agreement (Certicom Corp)
Representations and Warranties of the Shareholders. Each Shareholder party hereto of the Shareholders, on the date hereof 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 acknowledges that the other Shareholders as of Purchaser is relying on such representations and warranties in connection with the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thattransactions contemplated herein:
(a) Such this Agreement has been, and each additional agreement or instrument required to be delivered by the Shareholder pursuant to this Agreement will be prior to the Time of Closing, duly authorized, executed and delivered by the Shareholders and each is, or will be at the Time of Closing, a legal, valid and binding obligation of the Shareholders, enforceable against the Shareholders in accordance with its terms;
(b) if the Shareholders is duly organized and not an individual, the Shareholders is validly existing as a legal entity under the laws of its jurisdiction of organizationorganization and has the corporate or other power to enter into this Agreement and any other agreement to which it is, with full power or is to become, a party to pursuant to the terms hereof and authority to execute, deliver and perform its obligations hereunder and thereunder;
(c) the execution and delivery of this Agreement does not, and the consummation of the Transaction will not, (i) if the Shareholders is not an individual, result in a breach or violation of the articles or by-laws of the Shareholders (or other constating documents of the Shareholder) or of any resolutions of the directors or shareholders of the Shareholders, or (ii) violate any provision of any applicable law or regulation or any judicial or administrative order, award, judgment or decree applicable to the Shareholders;
(d) the Shareholder is the registered and beneficial owner of that number of AlphaMind Shares, 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 nature whatsoever;
(e) other than as Disclosed, 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 Purchased Shares held or beneficially owned by the Shareholder and none of such common shares of AlphaMind are subject to any voting trust, shareholders agreement, voting agreement or other agreement with respect to the disposition or enjoyment of any rights of such common shares of AlphaMind;
(f) no consent, approval, order or authorization of, or registration or declaration with, any applicable Governmental Authority with jurisdiction over the Shareholder is required to be obtained by the Shareholders in connection with the 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 Principal Agreements 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 “C” (in which case the Shareholder makes the representations, warranties and covenants therein):
(i) the offer to which purchase the Shareholder’s Purchased Shares or Earn Out 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 party and to consummate U.S. Person, is not in the transactions contemplated thereby, United States and is not required to be qualified as acquiring the applicable Payment Shares or Earn-Out Shares on behalf of, or for the account or benefit of, a foreign corporation U.S. Person or other entity authorized to do business a person in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.the United States;
(biii) The Principal Agreements to which such Shareholder is a party have been duly and validly authorized, at the time this Agreement was executed and delivered by such Shareholder and constitute the legal, valid and binding obligations of such Shareholder, enforceable against such 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 or Earn-Out Shares in accordance with their termsthe United States, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and by general equitable principles (whether applied by a court of law or equity).in compliance with the U.S. Securities Act; and
(cvi) The execution, delivery the current structure of this transaction and performance all transactions and activities contemplated in this Agreement is not a scheme by such the Shareholder to avoid the registration requirements of the Principal Agreements to which it is a partyU.S. Securities Act and any applicable state securities laws;
(i) Non-Resident Shareholders represent, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will notwarrant and/or acknowledge, as applicable, that:
(i) conflict with or constitute a breach the Payment Shares and any Earn Out 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 and, if applicable, Earn Out Shares, pursuant to the terms or provisions of, or a default under, such Shareholder's constitutive documents;of this Agreement is being made in reliance on applicable exemptions; and
(ii) conflict with or constitute a breach the receipt of any covenantthe Payment Shares and, agreementif applicable, understanding or Authorization to which such Shareholder is a party or Earn Out Shares by which such Shareholder or Non- Resident Shareholders does not contravene any of its Assets and Properties is bound; or
(iii) violate or conflict with any law the applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified securities legislation in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to jurisdiction in which it is a party, the compliance by such Shareholder with all of the provisions thereof resident and the consummation by such Shareholder of the transactions contemplated thereby will does not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) trigger: (i) There is no Action pending any obligation to which such Shareholder is prepare and file a party prospectus or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result insimilar document, or could reasonably be expected any other report with respect to result in, such transfer; and (ii) any registration or other obligation on the issuance part of an order which Purchaser;
(Aj) questions the validity of Shareholder has not authorized any of the Principal Agreements person to act as broker or finder or in any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of other similar capacity in connection with the transactions contemplated by this Agreement, that in any of manner may or will impose liability on AlphaMind or the Principal Agreements, or Purchaser; and
(C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (iik) to the knowledge of such the Shareholder, no such Action is threatened, and (iii) there are no facts representation or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner warranty of the Shares described opposite such Shareholder's name on Schedule 1 (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 Endorsement executed by such Shareholder)statements contained herein or therein not misleading.
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 1 contract
Sources: Share Exchange Agreement
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby Shareholder, severally and not jointly, represents and warrants to the Company and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders Shareholders, as of the date on which hereof or as of the date such Person executes such Endorsement) Shareholder becomes a party hereto, that:
(a) Such Shareholder is an entity duly organized and validly existing as a legal entity under the laws Laws of the jurisdiction of its jurisdiction of organization, with .
(b) Such Shareholder has full power and authority to executeenter into, deliver and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its this Agreement. The execution and delivery of this Agreement and the performance of the rights and obligations under such Principal Agreements.
(b) The Principal Agreements to which such Shareholder is a party hereunder have been duly and validly authorized, executed and delivered authorized by such Shareholder and constitute no other proceedings by or on behalf of such Shareholder will be necessary to authorize this Agreement or the legal, performance of the rights and obligations hereunder. This Agreement constitutes the valid and binding obligations of such Shareholder, Shareholder enforceable against such Shareholder it in accordance with their its terms, except as such the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, moratorium reorganization or other similar laws Laws affecting enforcement of creditors' ’ rights and remedies generally and by (ii) subject to general equitable principles (whether applied by a court of law or equity).
(c) The execution, delivery and performance of this Agreement by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not:
not (i) conflict with violate (A) the Organizational Documents of such Shareholder or constitute (B) any Law, treaty, rule or regulation applicable to or binding upon such Shareholder or any of its properties or assets or (ii) result in a breach of any of the terms or provisions of, or a default under, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of any covenant, agreement, understanding or Authorization contractual obligation to which such Shareholder is a party or by which such Shareholder it or any of its Assets and Properties properties or assets is bound; or
, in the case of each of clauses (iiii)(B) violate or conflict with and (ii) in any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could respect that would reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects have a material adverse effect on the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Actionunder this Agreement.
(fd) Such Shareholder is In the record holder case of Itaú Parent and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h)Corp Group Parent, such Shareholder has sole power of disposition and sole voting power with respect to all such Sharesowns, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in date hereof, directly or indirectly, the Principal Agreements shares of company stock of Company One and Schedule 2.1(i)Company Two, such Shares are held respectively, free and clear of all LiensEncumbrances of any kind on the right to vote or Transfer such shares and has the sole power, proxiesauthority and legal capacity to vote and Transfer such shares and in the case of Company One and Company Two, voting trusts such Company owns, as of the date hereof, the shares of the Chilean Bank referred to in the Recitals free and clear of all Encumbrances of any kind on the right to vote or agreementsTransfer such shares and (together with Itaú Parent and Corp Group Parent) has the sole power, understandings authority and legal capacity to vote and Transfer such shares (in each case other than Encumbrances in favor of the other Shareholder or arrangements whatsoever, except for those arising under the Principal Agreementsits Affiliates).
(je) Except for the Principal Agreements representations and the agreements terminated pursuant to the Termination Agreementwarranties contained in this Section 7.19, neither no such Shareholder Shareholder, nor any other Person or entity acting on behalf of its Affiliates has entered into such Shareholder, makes any agreementrepresentation or warranty, arrangement express or understanding with (i) implied to any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or managementother Shareholder.
Appears in 1 contract
Representations and Warranties of the Shareholders. Each Except as set forth in a Shareholder's Disclosure Memorandum attached hereto, each Shareholder party hereto on the date hereof hereby represents and warrants to the Company Acquiror and the other Shareholders Merger Sub, severally and not jointly, as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thatfollows:
(a) Such Shareholder is duly organized the record and validly existing beneficial owner of that number and class of shares of Company Capital Stock and, if applicable, Options and/or Company Warrants, set forth opposite such Shareholder's name on Exhibit A hereto (such Company Capital Stock, together with any Company Capital Stock acquired by such Shareholder after the date of this Agreement, whether upon the exercise of Options or Company Warrants or otherwise, all as a may be adjusted from time to time pursuant to Section 10 hereof, the "Shares").
(b) Such Shareholder has the legal entity under the laws of its jurisdiction of organization, with full power capacity to execute and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party this Agreement and to consummate the transactions contemplated therebyby this Agreement.
(c) In the case of any Shareholder that is a corporation, limited partnership or limited liability company, such Shareholder is an entity duly organized and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other validly existing under the Laws of the jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability it is incorporated or constituted, and such Shareholder has all requisite power and authority to execute and deliver or perform its obligations under such Principal Agreementsthis Agreement and to consummate the transactions contemplated hereby, and has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement.
(bd) The Principal Agreements to which such Shareholder is a party have This Agreement has been duly and validly authorized, executed and delivered by such Shareholder and constitute the constitutes a legal, valid and binding obligations obligation of such Shareholder, enforceable against such Shareholder in accordance with their its terms, except as such enforceability may be limited by bankruptcyto the effect, insolvencyif any, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and by general equitable principles (whether applied by a court of law or equity)the Enforceability Exceptions.
(ce) The execution, delivery and performance of this Agreement by such Shareholder of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby hereby will not:
(i) conflict with or constitute not result in a breach violation of any of the terms or provisions of, or a default under, such Shareholder's constitutive documents;
(ii) or conflict with or constitute a breach of with, any covenantcontract, trust, commitment, agreement, understanding understanding, arrangement or Authorization restriction of any kind to which such Shareholder is a party or by which such Shareholder or any of his, her or its Assets and Properties is assets are bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the . The consummation by such Shareholder of the transactions contemplated thereby by this Agreement will not violate, or require any consent, approval, Authorization, other order or action of, filing with approval or notice to under, any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity provision of any of the Principal Agreements Law or any action taken or Order applicable to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such The Shares owned by such Shareholder is are now, and at all times during the record holder and beneficial owner term of this Agreement will be, held by such Shareholder or by a nominee or custodian for the Shares described opposite benefit of such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoeverEncumbrances, except for those any Encumbrance arising under the Principal Agreementsthis Agreement.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 1 contract
Sources: Shareholders Agreement (Watchguard Technologies Inc)
Representations and Warranties of the Shareholders. Each Shareholder party hereto on The Shareholders hereby each, jointly and severally, represent, warrant and covenant to the date hereof hereby represents others and warrants to the Company and the other Shareholders as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) that:
(a) Such the Shareholder is duly organized will use his, her or its voting powers and/or its influence over the Directors appointed by it at both Shareholders' and validly existing Directors' meetings of the Company in order to ensure (so far as a legal entity under possible) that the laws Company complies with the terms of its jurisdiction this Agreement;
(b) the Shareholder will not at any time use in any business the name of organization, with the Company or any confusingly similar name or any trademark or trade name used by the Company;
(c) the Shareholder has full power and authority to execute, deliver enter into this Agreement and perform its obligations under the Principal Agreements to which it this Agreement is a party and to consummate the transactions contemplated thereby, and is not required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal Agreements.
(b) The Principal Agreements to which such Shareholder is a party have been duly and validly authorized, executed and delivered by such Shareholder and constitute the legal, valid and binding obligations of such Shareholder, enforceable against such Shareholder in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and by general equitable principles (whether applied by a court of law or equity).
(c) The execution, delivery and performance by such Shareholder obligation of the Principal Agreements to which it is a party, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not:
(i) conflict with or constitute a breach of any of the terms or provisions of, or a default under, such Shareholder's constitutive documents;
(ii) conflict with or constitute a breach of any covenant, agreement, understanding or Authorization to which such Shareholder is a party or by which such Shareholder or any of its Assets and Properties is bound; or
(iii) violate or conflict with any law applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d)no event will the Shareholder offer, sell, transfer or distribute any portion of the execution, delivery and performance Shares owned by such Shareholder unless the Company shall have (in connection with each such sale, transfer or distribution) received an opinion of counsel reasonably satisfactory to the Principal Agreements to which it is a partyCompany that the Shares may be legally sold or distributed without registration under the Act, and without registration and/or other qualification under then applicable state and/or Federal statutes, or the compliance by such Shareholder with all of the provisions thereof Shares shall have been so registered and/or qualified and the consummation by such Shareholder of the transactions contemplated thereby will not require any consentan appropriate prospectus, approvalif required, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.shall then be in effect and current;
(e) the Shareholder will not transfer (i) There is no Action pending other than transfers permissible under any subparagraph of Section 5.6 hereof or pursuant to which the Management Protocol), sell, convey or otherwise dispose of any Shares currently held by such Shareholder is a party or prior to which any the fifth anniversary of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance date of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.this Agreement; and
(f) Such the Shareholder is the record holder and beneficial owner of acknowledges that the Shares described opposite are not registered under the Act, that they may not be offered, sold or transferred except in compliance with the Act and the rules and regulations adopted pursuant thereto, that the Shares must be held indefinitely unless they are subsequently registered under such Shareholder's name on Schedule 1 (Act or in the Endorsement executed by an exemption from such Shareholder).
(g) Such Shares constitute the only shares of capital stock of registration is available, that except as otherwise provided herein the Company owned is under no obligation to register the Shares or to supply the information necessary for the applicability of record or beneficially by certain of such Shareholder.
(h) Except as specified exemptions, that any such exemptions may only be applicable in certain limited circumstances and that any routine public sales of securities made in reliance upon Rule 144 promulgated under the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power Act can be made only in limited amounts in accordance with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified that Rule and that in the Principal Agreements and Schedule 2.1(i), event the provisions of such Shares Rule are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant not applicable to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more proposed public sale of the Shareholders Shares, compliance with Regulation A or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or managementsome other applicable exemption will be required.
Appears in 1 contract
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby severally represents and warrants to the Company TranSwitch and the other Shareholders Merger Sub as of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) thatfollows:
(a) Such Subject to applicable community property laws, such Alacrity Shareholder is duly organized the lawful owner of the shares of Preferred Stock or Alacrity Common Stock to be exchanged for the Total TranSwitch Common Shares pursuant to this Agreement and validly existing as a legal entity under the laws of its jurisdiction of organization, with full power and authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated therebyhas, and is not required on the Closing Date will have, good and clear title to be qualified as a foreign corporation such shares of Preferred Stock or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or perform its obligations under such Principal AgreementsAlacrity Common Stock, free of all Liens.
(b) The Principal Agreements Such Shareholder has, and on the Closing Date will have, full legal right, power and authority to which such enter into this Agreement and to sell and deliver the shares of Preferred Stock or Alacrity Common Stock owned by him, her or it in the manner provided herein. Such Shareholder is a party have been has duly and validly authorizedexecuted this Agreement and has, or prior to the Closing, will have duly and validly executed and delivered by all other agreements contemplated hereby, and each of this Agreement and such Shareholder other agreements constitutes a valid, binding and constitute the legal, valid and binding obligations enforceable obligation of such Shareholder, enforceable against such Shareholder in accordance with their its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights and remedies generally and by general equitable principles (whether applied by a court of law or equity).
(c) The execution, delivery and performance of this Agreement and the other agreements contemplated hereby by such Shareholder of the Principal Agreements to which it is a partyShareholder, compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby hereby or thereby, will not:
(i) conflict with not require, on the part of such Shareholder, any consent, approval, authorization or constitute a breach of any of the terms or provisions other order of, or a default underany filing with, such Shareholder's constitutive documents;
(ii) conflict with any Governmental Entity, or constitute a breach of under any covenantcontract, agreement, understanding agreement or Authorization commitment to which such Shareholder is a party or by which such Shareholder or any property of its Assets and Properties such Shareholder is bound; or
(iii) violate , and will not constitute a violation on the part of such Shareholder of any law, administrative regulation or conflict with ruling or court decree, or any law contract, agreement or commitment, applicable to such Shareholder or any of its Assets and Properties.
(d) Except as specified in Schedule 2.1(d), the execution, delivery and performance by such Shareholder of the Principal Agreements to which it is a party, the compliance by such Shareholder with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authority.
(e) (i) There is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controls, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result in, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability of such Shareholder to perform its obligations thereunder, (ii) to the knowledge property of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.
(f) Such Shareholder is the record holder and beneficial owner of the Shares described opposite such Shareholder's name on Schedule 1 (or in the Endorsement executed by such Shareholder).
(g) Such Shares constitute the only shares of capital stock of the Company owned of record or beneficially by such Shareholder.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Shareholder has sole power of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held free and clear of all Liens, proxies, voting trusts or agreements, understandings or arrangements whatsoever, except for those arising under the Principal Agreements.
(j) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more of the Shareholders or any of their respective Affiliates with respect to matters relating to the Company, its management or any Shares or (ii) the Company, any of its Affiliates or management.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Transwitch Corp /De)
Representations and Warranties of the Shareholders. Each Shareholder party hereto on the date hereof hereby represents and warrants to the Company and the other Shareholders as BCR on behalf of the Effective Date (and each Person who becomes a party to this Agreement after the Effective Date by executing an Endorsement shall be deemed to have represented and warranted to the Company and the other Shareholders as of the date on which such Person executes such Endorsement) Shareholder that:
(a) Such Shareholder is duly organized Stockholder has the full legal right and validly existing as a legal entity under the laws of its jurisdiction of organization, with full power and all authority to execute, deliver and perform its obligations under the Principal Agreements to which it is a party and to consummate the transactions contemplated thereby, and is not approvals required to be qualified as a foreign corporation or other entity authorized to do business in any other jurisdiction in which its failure to be so qualified would have a material adverse effect on its ability to execute and deliver or this Agreement and to perform its fully such Stockholder's obligations under such Principal Agreements.
(b) The Principal Agreements to which such Shareholder is a party have hereunder. This Agreement has been duly and validly authorized, executed and delivered by such Shareholder Stockholder and constitute (assuming the legaldue authorization, execution and delivery hereof by BCR) is a valid and binding obligations obligation of such Shareholder, Stockholder enforceable against such Shareholder in accordance with their its terms. The execution and delivery by such Stockholder of this Agreement, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights the consummation of the Contemplated Transactions and remedies generally and by general equitable principles (whether applied by a court of law or equity).
(c) The execution, delivery and the performance by such Shareholder Stockholder of the Principal Agreements to which it is a party, compliance by such Shareholder this Agreement in accordance with all of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby its terms will not:
not (i) conflict with require the approval or constitute a breach consent of any Governmental Body or the approval or consent of the terms or provisions of, or a default under, such Shareholder's constitutive documents;
any other Person; (ii) conflict with or constitute a result in any breach or violation of any covenantof the terms and conditions of, agreementor constitute (or with notice or lapse of time or both constitute) a default under, understanding any Law or Authorization Order of any Governmental Body applicable to such Stockholder or to the Shares held by such Stockholder, or any Contract to which such Shareholder Stockholder is a party or by or to which such Shareholder Stockholder is or any of its Assets and Properties is boundthe Shares held by such Stockholder are bound or subject; or
or (iii) violate or conflict result in the creation of any Lien on the Shares held by such Stockholder.
(b) Such Shareholder is acquiring the Merger Consideration Shares for its own account, for investment, and not with a view to any law applicable to "distribution" thereof within the meaning of the Securities Act, and such Shareholder has no present or presently contemplated agreement, undertaking, arrangement, obligation, indebtedness or commitment providing for the distribution thereof.
(c) Such Shareholder understands that because the Merger Consideration Shares have not been registered under the Securities Act, it cannot dispose of any or all of its Assets the Merger Consideration Shares unless the relevant shares are subsequently registered under the Securities Act or exemptions from such registration are available. Such Shareholder understands that each certificate representing the Merger Consideration Shares will bear the following legend or one substantially similar thereto: The securities represented by this certificate have not been registered under the Securities Act of 1933 (the "Act"). These securities have been acquired for investment and Propertiesnot with a view to distribution or resale, and may not be sold, mortgaged, pledged, hypothecated or otherwise transferred without an effective registration statement for such securities under the Act or an opinion of counsel satisfactory to Big City Radio Inc. is obtained to the effect that an exemption from such registration requirements is available.
(d) Except Such Shareholder is sufficiently knowledgeable and experienced in the making of investments so as specified to be able to evaluate the risks and merits of its investment in Schedule 2.1(d)BCR, and is able to bear the execution, delivery and performance by such Shareholder economic risk of the Principal Agreements to which it is a party, the compliance by such Shareholder with all loss of the provisions thereof and the consummation by such Shareholder of the transactions contemplated thereby will not require any consent, approval, Authorization, other order or action of, filing with or notice to any Governmental or Regulatory Authorityits investment in BCR.
(e) (i) There Such Shareholder has been advised that the Merger Consideration Shares have not been and are not being registered under the Securities Act or under the "blue sky" laws of any jurisdiction and that BCR in issuing the Merger Consideration Shares is no Action pending to which such Shareholder is a party or to which any of the Shares it owns or controlsrelying upon, beneficially or otherwise, is subject, which will result in, or could reasonably be expected to result inamong other things, the issuance of an order which (A) questions the validity of any of the Principal Agreements or any action taken or to be taken pursuant thereto, (B) restrains, enjoins or otherwise prohibits or makes illegal consummation of any of the transactions contemplated by any of the Principal Agreements, or (C) would, or would reasonably be expected to, result in the issuance of an order which materially adversely affects the ability representations and warranties of such Shareholder to perform its obligations thereunder, (ii) to the knowledge of such Shareholder, no such Action is threatened, and (iii) there are no facts or circumstances known to such Shareholder that would be expected to give rise to any such Action.contained in this Article V.
(f) Such Shareholder is has been afforded the record holder opportunity to ask questions of, and beneficial owner receive answers from, BCR and all of its executed officers and directors and to obtain any additional information, to the extent that BCR possesses such information or could have acquired it, necessary to verify the accuracy of the Shares described opposite such Shareholder's name on Schedule 1 (or information contained in any documents delivered to each Shareholder concerning BCR and has in general had access to all information each Shareholder deemed material to an investment decision with respect to the Endorsement executed by such Shareholder)acquisition of the Securities.
(g) Such Shares constitute Shareholder is an "accredited investor" as defined in Rule 501 of Regulation D promulgated under the only shares of capital stock of the Company owned of record or beneficially by such ShareholderSecurities Act.
(h) Except as specified in the Principal Agreements and Schedule 2.1(h), such Such Shareholder has sole power owns his or her shares of disposition and sole voting power with respect to all such Shares, with no restrictions on such rights, other than such restrictions on Transfers as arise under applicable United States federal securities laws and the terms and conditions of the Principal Agreements.
(i) Except as specified in the Principal Agreements and Schedule 2.1(i), such Shares are held HIH Common Stock free and clear of any and all Liensliens, proxiesmortgages, voting trusts adverse claims, charges, security interests, encumbrances or agreements, understandings other restrictions or arrangements whatsoever, limitations whatsoever (except for those arising limitations imposed under the Principal AgreementsU.S. federal or applicable state securities laws) and, upon delivery of and payment for such Shares as herein provided, such Stockholder will convey to BCR good and valid title thereto, free and clear of any Lien.
(jk) Except for the Principal Agreements and the agreements terminated pursuant to the Termination Agreement, neither such Shareholder nor any of its Affiliates has entered into any agreement, arrangement or understanding with (i) any one or more The representations of the Shareholders or any of their respective Affiliates with respect to matters relating to the CompanyCompany set forth in Section 3 are true, its management or any Shares or (ii) the Company, any of its Affiliates or managementcorrect and complete in all material respects.
Appears in 1 contract
Sources: Merger and Registration Rights Agreement (Mack Earl I)