Representations and Warranties of the Shareholders. Each Shareholder hereby represents and warrants as follows: (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, validly existing and in good standing under the Laws of Canada or Netherlands, as applicable, and (ii) has the requisite corporate, company, partnership or other power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby and to comply with the terms hereof. The execution and delivery of this Agreement by each Shareholder, the consummation by each Shareholder of the transactions contemplated 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 conflict with, or result in (i) any violation or breach of, or default (with or without notice or lapse of time, or both) under, 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 (2) Action applicable to a Shareholder or its properties or assets, or (3) any Contract or other legally binding instrument or obligation to which such Shareholder is a party or by which such Shareholder or its assets are bound, in the case of each of clauses (1) through (3), to the extent such violation, breach or other action would prevent, enjoin or materially delay the performance by such Shareholder of its obligations under this Agreement or the actions of any of its Affiliates that such Shareholder has agreed to 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 or any of its assets (including the Subject Shares beneficially owned by such 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 by this Agreement and the Transaction Agreement or otherwise materially impair such Shareholder’s ability to perform its obligations hereunder. (g) 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 reimbursement of expenses, from Bidco, the Company 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 a Shareholder.
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 Holder hereby represents andwarrants to UP Scientech, severally and warrants as followsnot jointly, that:
(a) Such this Voting Agreement has been duly executed and delivered by each Shareholder and is the legal, valid and binding obligation of and fully enforceable in accordance with its terms against such Shareholder;
(ib) no consent of any governmental entity, beneficiary, co-trustee or other person is as necessary for the execution, delivery and performance of this Voting Agreement by each Shareholder;
(c) subsequent to the closing of the date hereofSSA, and, except as otherwise permitted pursuant to Section 1 hereof, the Shareholders shall be at all times during the term beneficial owners of this Agreement, twenty four million one hundred and twenty thousand (24,120,000) shares or collectively in excess of thirty five percent (35%) of the indirect or direct beneficial owner issued and outstanding voting shares of Abakan's common stock;
(d) each Shareholder shall own 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 (encumbrance 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 Voting Agreement and (6) the Enhanced Cooperation Agreement; provided that such Liens shall does not preventown, inhibit directly or restrict such Shareholder’s indirectly, any other shares of Abakan's common stock or any option, warrant or other right to acquire any shares of its Affiliates’ ability Abakan's common stock;
(e) each Shareholder shall have the power and right 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.Shares;
(bf) Except except as provided herein, each Shareholder has not (i) granted any power-of-attorney or other authorization or interest with respect to obligations under the Company Organizational Documents, as applicable, AY Holdings has, as any of the date hereof and will have at all times through the termination of this Agreement in accordance with Section 6Subject Shares, the sole right to Transfer, to vote (or cause to voteii) and to direct (or cause to direct) the voting deposited any of the Subject Shares beneficially owned into a voting trust, or (iii) entered into any prior voting agreement or other arrangement with respect to any of the Subject Shares; and
(g) the execution, delivery and performance of this Voting Agreement 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, validly existing and in good standing under the Laws of Canada or Netherlands, as applicable, and (ii) has the requisite corporate, company, partnership or other power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby and to comply with the terms hereof. The execution and delivery of this Agreement by each Shareholder, the consummation by each Shareholder of the transactions contemplated 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 does not and will not conflict withresult in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Shareholders are subject, or result its constitutional documents in (i) any violation or breach of, or default (with or without notice or lapse of time, or both) under, 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 (2) Action applicable to a Shareholder or its properties or assets, or (3) any Contract or other legally binding instrument or obligation to which such Shareholder is a party or by which such Shareholder or its assets are bound, in the case of each of clauses (1) through (3), to the extent such violation, breach any Shareholder being a trust or other action would prevent, enjoin or materially delay the performance by such Shareholder of its obligations under this Agreement or the actions of any of its Affiliates that such Shareholder has agreed to 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 Agreementfoundation.
(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 or any of its assets (including the Subject Shares beneficially owned by such 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 by this Agreement and the Transaction Agreement or otherwise materially impair such Shareholder’s ability to perform its obligations hereunder.
(g) 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 reimbursement of expenses, from Bidco, the Company 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 a Shareholder.
Appears in 3 contracts
Sources: Shareholder Voting Agreement (Abakan, Inc), Shareholder Voting Agreement (Maz Maria Camila), Shareholder Voting Agreement (Up Scientech Materials Corp)
Representations and Warranties of the Shareholders. Each Shareholder hereby represents and warrants to the Company and ION solely as to itself and severally and not jointly as follows:
(a) Such Shareholder is the only record and beneficial owner (iwithin the meaning of Rule 13d-3 under the Exchange Act) is of, and has good, valid and marketable title to, the Covered Shares, free and clear of Liens other than as created by this Agreement, the Investors’ Rights Agreement and Permitted Liens. As of the date hereof, 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 Liensthe Owned Shares, (2) Liens granted to one such Shareholder does not own beneficially 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 share capital of ION (or any securities securities, including warrants exercisable, 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 into share capital of all of the Subject Shares as of the date hereofION).
(b) Except with respect Such Shareholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power 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 issue instructions with respect to the Transfer or the voting of the Subject Shares (other than as matters set forth herein, in the Shareholders Agreement and Enhanced Cooperation Agreement (but which such Contracts shall not preventeach case, inhibit or restrict with respect to such Shareholder’s or any of its Affiliates’ compliance with this Agreement Covered Shares, (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 ii) has not entered into any Contract voting agreement or voting trust or any other agreement or arrangement, including any proxy, consent or power of attorney, with respect to any of such Shareholder’s Covered Shares that is inconsistent with the terms 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 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 in 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 way restrict, limit such agreement or interfere with the performance of the Shareholders’ obligations hereunderundertaking.
(c) Such Shareholder (i) is a legal entity duly organized, validly existing and and, to the extent such concept is applicable, in good standing under the Laws Applicable Legal Requirements of Canada or Netherlands, as applicablethe jurisdiction of its organization, and (ii) has the all requisite corporate, company, partnership corporate or other power and authority to execute and has taken all corporate or other action necessary in order to, execute, deliver this Agreement, to and perform its obligations hereunder under this Agreement and to consummate the transactions contemplated hereby and to comply with the terms hereofhereby. The execution and delivery of this Agreement by each Shareholder, the consummation by each Shareholder of the transactions contemplated 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, such Shareholder and constitutes a valid and binding obligation agreement of each such Shareholder and, assuming due authorization, execution and delivery by ▇▇▇▇▇ and the Company, is enforceable against each such Shareholder in accordance with its terms, subject to any Enforceability Exceptionsapplicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Applicable Legal Requirements affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.
(ed) The execution Other than the filings, notices and reports pursuant to, in compliance with or required to be made under the Exchange Act, if any, no filings, notices, reports, consents, registrations, approvals, permits, waivers, expirations of waiting periods or authorizations are required to be obtained by such Shareholder from, or to be given by such Shareholder to, or be made by such Shareholder with, any Governmental Entity in connection with the execution, delivery and performance by such Shareholder of this Agreement, the consummation of the transactions contemplated hereby or the Merger and compliance with the provisions hereof other transactions contemplated by the Merger Agreement.
(e) The execution, delivery and performance of this Agreement by such Shareholder do not not, and the consummation of the transactions contemplated hereby or the Merger and the other transactions contemplated by the Merger Agreement will not conflict withnot, constitute or result in (i) any a breach or violation or breach of, or a default under, the Organizational Documents of such Shareholder (if such Shareholder is not a natural person), (ii) with or without notice or notice, lapse of time, time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss of any provision benefit under, the creation, modification or acceleration of any obligations under or the creation of a Lien on any of the organizational documents properties, rights or assets of a such 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 (2) Action applicable pursuant to a Shareholder or its properties or assets, or (3) any Contract or other legally binding instrument or obligation upon such Shareholder or, assuming (solely with respect to performance of this Agreement and the transactions contemplated hereby), compliance with the matters referred to in Section 6(d), under any Applicable Legal Requirements to which such Shareholder is a subject or (iii) any change in the rights or obligations of any party or by which under any Contract legally binding upon such Shareholder or its assets are boundShareholder, except, in the case of each of clauses clause (1ii) through or (3)iii) directly above, to the extent for any such breach, violation, breach termination, default, creation, acceleration or other action change that would preventnot, enjoin individually or in the aggregate, reasonably be expected to prevent or materially delay the performance by or impair such Shareholder of Shareholder’s ability to perform its obligations under this Agreement hereunder or the actions of any of its Affiliates that such Shareholder has agreed to 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 consummate the transactions contemplated hereby, the consummation of the Merger or the other transactions contemplated by this the Merger Agreement.
(f) With respect to each Shareholder, as As of the date hereofof this Agreement, there is no Action action, proceeding or investigation pending against such Shareholder or, to the knowledge of such Shareholder, threatened in writing against it such Shareholder that questions the beneficial or any record ownership of its assets (including the Subject Shares beneficially owned by such Shareholder) before or by any Governmental Authority ’s Owned Shares, that would reasonably be expected to question the validity of this Agreement or to prevent or materially impair, enjoin or delay or impair the consummation by ability of such Shareholder of the transactions contemplated by this Agreement and the Transaction Agreement or otherwise materially impair such Shareholder’s ability to perform its obligations hereunderunder this Agreement or to consummate the transactions contemplated hereby.
(g) Such Shareholder is a sophisticated stockholder and has adequate information concerning the business and financial condition of the Company and ION to make an informed decision regarding this Agreement and the other transactions contemplated by the Merger Agreement and has independently and based on such information as such Shareholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Shareholder acknowledges that the Company and ION have not made and do not make any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement. Such Shareholder acknowledges that the agreements contained herein with respect to the Covered Shares owned by such Shareholder are irrevocable.
(h) Such Shareholder understands and acknowledges that ION and the Company are entering into the Merger Agreement in reliance upon such Shareholder’s execution and delivery of this Agreement and the representations, warranties, covenants and other agreements of such Shareholder contained herein.
(i) No broker, finder, investment banker, financial advisorbroker, finder or other Person intermediary, other than ▇▇▇▇▇ and Company, LLC, is entitled to any brokeragebroker’s, finder’s, financial advisor’s or other similar fee or commission, commission for which ION or the reimbursement of expenses, from Bidco, the Company is or their Affiliates (other than the Shareholders) will be liable in connection with the transactions contemplated hereby or by the Transaction Agreement based upon arrangements made by or or, to the knowledge of such Shareholder, on behalf of a such Shareholder.
Appears in 3 contracts
Sources: Merger Agreement (ION Acquisition Corp 1 Ltd.), Sponsor Support Agreement (Taboola.com Ltd.), Sponsor Support Agreement (Taboola.com Ltd.)
Representations and Warranties of the Shareholders. Each Shareholder of the Shareholders, on its own behalf and not on behalf of any other Shareholder, hereby severally (and, for greater certainty, not jointly with any other Shareholder) represents and warrants to the Purchaser as followsfollows and acknowledges that the Purchaser is relying on such representations and warranties in connection with the transactions 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 (i) is as and each is, or will be at the Time of Closing, a legal, valid and binding obligation of the date hereofShareholder, andenforceable against the Shareholder in accordance with its terms;
(b) if the Shareholder is not an individual, except as otherwise permitted 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 it is, or is to become, a party to pursuant to Section 1 hereof, shall be at all times during the term terms hereof and to perform its obligations hereunder and thereunder;
(c) the execution and delivery of this AgreementAgreement does not, and the indirect consummation of the Transaction will not violate any provision of any applicable law or direct 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 the Subject Shares that number of common shares of MindLeap set forth opposite the Shareholder’s name in Schedule “A” (such Shareholders’ name on Schedule A hereto (and AY Holdings is common share comprising part of 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 Purchased Shares), free and clear of any Liens (other than (1) Permitted all Liens, charges, mortgages, security interests, pledges, demands, claims and other encumbrances of any nature whatsoever;
(2e) Liens granted to one except for the Purchaser’s rights hereunder, no person has any agreement 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 option or any right or privilege capable of its Affiliates’ ability to enter into this Agreement or vote in accordance with Section 2becoming an agreement for the purchase of the common shares of MindLeap (namely the Purchased Shares), and (ii) does not, nor do any of its Affiliates, own of record held 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 Shareholder;
(f) no consent, approval, order or authorization of, or registration or declaration with, any applicable Governmental Authority with jurisdiction over the date hereof, and none of such Subject Shares are subject Shareholder is required to any proxy, voting trust or other Contract, arrangement or restriction with respect to be obtained by the Transfer or the voting of the Subject Shares (other than as set forth Shareholder 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 connection 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, validly existing and in good standing under the Laws of Canada or Netherlands, as applicable, and (ii) has the requisite corporate, company, partnership or other power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby and to comply with the terms hereof. The execution and delivery of this Agreement by each Shareholder, or the consummation by each the Shareholder of the transactions Transaction, except for those consents, orders, authorizations, declarations, registrations or approvals which are contemplated hereby 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 compliance 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 each Shareholder 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 the provisions hereof have been duly authorized by all requisite corporate, company, partnership respect to such transfer; and (ii) any registration or other action obligation 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.Purchaser;
(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 conflict with, or result in (i) any violation or breach of, or default (with or without notice or lapse of time, or both) under, 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 (2) Action applicable to a Shareholder or its properties or assets, or (3) any Contract or other legally binding instrument or obligation to which such Shareholder is a party or by which such Shareholder or its assets are bound, in the case of each of clauses (1) through (3), to the extent such violation, breach or other action would prevent, enjoin or materially delay the performance by such Shareholder of its obligations under this Agreement or the actions of any of its Affiliates that such Shareholder has agreed not authorized any person to procure. No Consent of, act as broker or registration, declaration, notice finder or filing with, in any Governmental Authority is necessary, under Applicable Law, for the consummation by the Shareholders of other similar capacity in connection with the transactions contemplated by this Agreement., that in any manner may or will impose liability on MindLeap or the Purchaser; and
(fj) With respect to each Shareholder, as of the date hereof, there is no Action pending against or, to the knowledge of such the Shareholder, threatened in writing against it no representation or any of its assets (including the Subject Shares beneficially owned by such Shareholder) before or by any Governmental Authority that would reasonably be expected to prevent or materially delay or impair the consummation by such Shareholder warranty of the transactions contemplated by Shareholder contained in this Agreement and the Transaction Agreement or otherwise materially impair such Shareholder’s ability to perform its obligations hereunder.
(g) No broker, finder, investment banker, financial advisor, or other Person is entitled to contains any brokerage, finder’s or other similar fee or commission, or the reimbursement of expenses, from Bidco, the Company 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 untrue statement of a Shareholdermaterial fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading.
Appears in 1 contract
Sources: Share Exchange Agreement
Representations and Warranties of the Shareholders. Each Shareholder of the Shareholders, on its own behalf and not on behalf of any other Shareholder, hereby severally (and, for greater certainty, not jointly with any other Shareholder) represents and warrants to the Purchaser as followsfollows and acknowledges that the Purchaser is relying on such representations and warranties in connection with the transactions 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 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 it is, or is to become, a party to pursuant to the terms hereof and to 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 as not an individual, result in a breach or violation of the date hereofarticles 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, andor (ii) violate any provision of any applicable law or regulation or any judicial or administrative order, except as otherwise permitted pursuant award, judgment or decree applicable to Section 1 hereof, shall be at all times during the term of this Agreement, Shareholder;
(d) the indirect or direct Shareholder is the registered and beneficial owner of the Subject Shares that number of common shares of Lexington set forth opposite the Shareholder’s name in Schedule “A” (such Shareholders’ name on Schedule A hereto (and AY Holdings is common share comprising part of 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 Purchased Shares), free and clear of any Liens (other than (1) Permitted all Liens, charges, mortgages, security interests, pledges, demands, claims and other encumbrances of any nature whatsoever;
(2e) Liens granted to one except for the Purchaser’s rights hereunder, no person has any agreement 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 option or any right or privilege capable of its Affiliates’ ability to enter into this Agreement or vote in accordance with Section 2becoming an agreement for the purchase of the common shares of Lexington (namely the Purchased Shares), and (ii) does not, nor do any of its Affiliates, own of record held 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, Shareholder and none of such Subject Shares common shares of Lexington are subject to any proxyvoting trust, shareholders agreement, voting trust agreement or other Contract, arrangement or restriction agreement with respect to the Transfer disposition or enjoyment of any rights of such common shares of Lexington;
(f) no consent, approval, order or authorization of, or registration or declaration with, any applicable Governmental Authority with jurisdiction over the voting of Shareholder is required to be obtained by the Subject Shares (other than as set forth Shareholder 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 connection 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, validly existing and in good standing under the Laws of Canada or Netherlands, as applicable, and (ii) has the requisite corporate, company, partnership or other power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby and to comply with the terms hereof. The execution and delivery of this Agreement or the consummation by each the Shareholder of the Transaction, except for those consents, orders, authorizations, declarations, registrations or approvals which are contemplated by this Agreement or those consents, orders, authorizations, declarations, registrations or approvals that, if not obtained, would not prevent or materially delay the consummation of the Transaction or otherwise prevent the Shareholder from performing its obligations under this Agreement;
(g) except for the Non-Resident Shareholders, the Shareholder is not a “non-resident” of Canada within the meaning of the Tax Act;
(h) unless the Shareholder is a U.S. Shareholder and has completed and delivered a U.S. Representation Letter for U.S. Shareholders in the form attached hereto as Schedule “D” (in which case the Shareholder makes the representations, warranties and covenants therein), represents and warrants that:
i. the offer to purchase the Shareholder’s Purchased Shares, as the case may be, was not made to the Shareholder when either the Shareholder or any beneficial purchaser for whom it is acting, if applicable, was in the United States;
ii. the Shareholder is not a U.S. Person, is not in the United States and is not acquiring the applicable Payment Shares on behalf of, or for the account or benefit of, a U.S. Person or a person in the United States;
iii. at the time this Agreement was executed and delivered by the Shareholder, the consummation by each Shareholder was outside the United States;
iv. if the Shareholder is a corporation or entity, (A) a majority of the transactions contemplated hereby Shareholder’s voting equity is beneficially owned by persons resident outside the United States; and (B) the Shareholder’s affairs are wholly controlled and directed from outside of the United States;
v. the Shareholder or any beneficial purchaser for whom it is acting, if applicable, has no intention to distribute either directly or indirectly any of the Payment Shares in the United States, except in compliance by each Shareholder with the provisions hereof U.S. Securities Act; and
vi. the current structure of this transaction and all transactions and activities contemplated in this Agreement is not a scheme to avoid the registration requirements of the U.S. Securities Act and any applicable state securities laws;
(i) Non-Resident Shareholders represent, warrant and/or acknowledge, as applicable, that:
i. the Payment Shares issuable hereunder have not been duly authorized and will not be registered under the securities laws of any foreign jurisdiction and that the issuance of the Payment Shares pursuant to the terms of this Agreement is being made in reliance on applicable exemptions; and
ii. the receipt of the Payment Shares by all requisite corporateNon-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, company, partnership or any other report with respect to such transfer; and (ii) any registration or other action obligation 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.Purchaser;
(dj) 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 conflict with, or result in (i) any violation or breach of, or default (with or without notice or lapse of time, or both) under, 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 (2) Action applicable to a Shareholder or its properties or assets, or (3) any Contract or other legally binding instrument or obligation to which such Shareholder is a party or by which such Shareholder or its assets are bound, in the case of each of clauses (1) through (3), to the extent such violation, breach or other action would prevent, enjoin or materially delay the performance by such Shareholder of its obligations under this Agreement or the actions of any of its Affiliates that such Shareholder has agreed not authorized any person to procure. No Consent of, act as broker or registration, declaration, notice finder or filing with, in any Governmental Authority is necessary, under Applicable Law, for the consummation by the Shareholders of other similar capacity in connection with the transactions contemplated by this Agreement., that in any manner may or will impose liability on Lexington or the Purchaser; and
(fk) With respect to each Shareholder, as of the date hereof, there is no Action pending against or, to the knowledge of such the Shareholder, threatened in writing against it no representation or any of its assets (including the Subject Shares beneficially owned by such Shareholder) before or by any Governmental Authority that would reasonably be expected to prevent or materially delay or impair the consummation by such Shareholder warranty of the transactions contemplated by Shareholder contained in this Agreement and the Transaction Agreement or otherwise materially impair such Shareholder’s ability to perform its obligations hereunder.
(g) No broker, finder, investment banker, financial advisor, or other Person is entitled to contains any brokerage, finder’s or other similar fee or commission, or the reimbursement of expenses, from Bidco, the Company 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 untrue statement of a Shareholdermaterial fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading.
Appears in 1 contract
Sources: Share Exchange Agreement
Representations and Warranties of the Shareholders. Each Shareholder Shareholder, severally and not jointly, hereby represents and warrants to Acquiror as to itself as follows:
(a) Such Shareholder is the only record and beneficial owner (iwithin the meaning of Rule 13d-3 under the Exchange Act) is 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 organizational documents of the Company (including, for the purposes hereof, any agreements between or among shareholders of the Company). 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 Liensthe Owned Shares, (2) Liens granted to one such Shareholder does not own beneficially 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 hereofor any interest therein.
(b) Except with respect Such Shareholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power 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 issue instructions with respect to the Transfer or the voting of the Subject Shares (other than as matters set forth herein, in the Shareholders Agreement and Enhanced Cooperation Agreement (but which such Contracts shall not preventeach case, inhibit or restrict with respect to such Shareholder’s or any of its Affiliates’ compliance with this Agreement Covered Shares, (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 ii) has not entered into any Contract voting agreement or voting trust with respect to any of such Shareholder’s Covered Shares that is inconsistent with the terms 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 Agreement, and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would in any way restrictinterfere with, limit or interfere with the performance of the Shareholders’ prohibit or prevent it from satisfying, its obligations hereunderpursuant to this Agreement.
(c) Such Shareholder affirms that (i) if such Shareholder is duly organizeda natural person, validly existing and in good standing under the Laws of Canada he or Netherlands, as applicable, and (ii) she has all the requisite corporate, company, partnership or other power and authority and has taken all action necessary in order to execute and deliver this Agreement, to perform its his or her obligations hereunder and to consummate the transactions contemplated hereby hereby, and (ii) if such Shareholder is not a natural person, (A) it is a legal entity duly organized, validly existing and, to comply with the terms hereof. The execution and delivery of this Agreement by each Shareholderextent such concept is applicable, in good standing under the consummation by each Shareholder Laws of the transactions contemplated hereby jurisdiction of its organization and the compliance by each Shareholder with the provisions hereof have been duly authorized by (B) has all requisite corporate, company, partnership corporate or other power and authority and has taken all corporate or other action on the part of each Shareholdernecessary in order to execute, deliver and no other corporate, company, partnership or other organizational proceedings on the part of each Shareholder are necessary to authorize perform its obligations under this Agreement, Agreement and to consummate the transactions contemplated hereby or to comply with the provisions hereof.
(d) hereby. This Agreement has been duly and validly executed and delivered by each Shareholder, such Shareholder and constitutes a valid and binding obligation agreement of each such Shareholder and, assuming due authorization, execution and delivery by ▇▇▇▇▇ and the Company, is enforceable against each such Shareholder in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.
(d) Other than the filings, notices and reports pursuant to, in compliance with or required to be made under 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 Enforceability ExceptionsGovernmental Authority in connection with the execution, delivery and performance by such Shareholder of this Agreement, or the consummation of the transactions contemplated hereby.
(e) The execution execution, delivery and delivery performance of this AgreementAgreement by such Shareholder do not, and the consummation of the transactions contemplated hereby or the Amalgamation and compliance with the provisions hereof do not and other transactions contemplated by the BCA will not conflict withnot, constitute or result in (i) any a breach or violation or breach of, or a default under, the limited liability company agreement or similar governing documents of such Shareholder (if such Shareholder is not a natural person), (ii) with or without notice or notice, lapse of time, time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss of any provision benefit under, the creation, modification or acceleration of any obligations under or the creation of a Lien on any of the organizational documents properties, rights or assets of a such 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 (2) Action applicable pursuant to a Shareholder or its properties or assets, or (3) any Contract or other legally binding instrument or obligation 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 or by which under any Contract legally binding upon such Shareholder or its assets are boundShareholder, except, in the case of each clause (ii) or (iii) directly above, for any such breach, violation, termination, default, creation, acceleration or change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair such Shareholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of clauses the Amalgamation or the other transactions contemplated by the BCA.
(1f) through (3)As of the date of this Agreement, there is no action, proceeding or investigation pending against such Shareholder or, to the extent knowledge of such violationShareholder, breach threatened against such Shareholder that questions the beneficial or other action would preventrecord ownership of such Shareholder’s Owned Shares, enjoin the validity of this Agreement or materially delay the performance by such Shareholder of its obligations under this Agreement or the actions of any of its Affiliates that such Shareholder has agreed to 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.
(fg) With Such Shareholder understands and acknowledges that Acquiror is entering into the BCA 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) Such Shareholder acknowledges that none of Acquiror, Company, its affiliates or their respective officers, directors, partners, members or employees makes any representation or warranty with respect to, and shall have no responsibility with respect to, the solvency, financial condition or business operations or financial statements of PubCo, except as set forth in the BCA and it’s filings with the SEC. Such Shareholder supports the BCA for its own account based on information currently available to such Shareholder (the “Current Information”). Based on such Current Information, the Shareholder has evaluated the merits and risks of the terms set forth in the BCA on its own and without reliance upon Acquiror (other than with respect to each Shareholderthe representations, warranties and covenants set forth in the BCA and the Acquiror’s filings with the SEC). Such Shareholder is an “accredited investor,” as that term is defined in Rule 501(a) or Regulation D under the Securities Act. Such Shareholder is not, and is not acting on behalf of, an employee benefit plan or “benefit plan investor” within the purview of ERISA, or otherwise using “plan assets” (within the date hereofmeaning of ERISA). Nothing in this sub-section 4(h) shall diminish the provisions of any other part of this Agreement or any applicable Law.
(i) No investment banker, there broker, finder or other intermediary is no Action pending against entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which Acquiror or the Company is or will be liable in connection with the transactions contemplated hereby based upon arrangements made by such Shareholder in his, her or its capacity as a Shareholder or, to the knowledge of such Shareholder, threatened in writing against it or any of its assets (including the Subject Shares beneficially owned by such 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 by this Agreement and the Transaction Agreement or otherwise materially impair such Shareholder’s ability to perform its obligations hereunder.
(g) 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 reimbursement of expenses, from Bidco, the Company 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 such Shareholder in his, her or its capacity as a Shareholder.
Appears in 1 contract
Sources: Company Shareholder Support Agreement (StoneBridge Acquisition Corp.)
Representations and Warranties of the Shareholders. Each Shareholder of the Shareholders, and their respective Affiliates, hereby represents and warrants to the Company as follows:
(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 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, validly existing and in good standing under the Laws of Canada or Netherlands, as applicable, and (ii) has the requisite corporate, company, partnership or other power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby. The Shareholders are competent to execute and deliver this Agreement, to perform its their obligations hereunder and to consummate the transactions contemplated hereby and to comply with the terms hereofhereby. The execution execution, delivery and delivery performance of this Agreement by each Shareholder, the Shareholders and the consummation by each Shareholder of the transactions contemplated hereby and the compliance by each Shareholder with the provisions hereof have been duly authorized by all requisite corporate, company, partnership or other necessary action on the part of each Shareholder, the Shareholders 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, or on behalf of the Shareholders and constitutes a valid and legally binding obligation of each Shareholder andthe Shareholders, 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.;
(eb) The Shareholders are the beneficial owner of 6,683,540 shares of Company Common Stock and such Shares constitute the Shareholders’ entire interest in the outstanding Company Common Stock. No person or entity not a signatory to this Agreement has a beneficial interest in or a right to acquire the Shares or any portion of the Shares. As of the date hereof, all of the Shares are free and clear of any liens, claims, encumbrances, mortgages, security interests and charges of any nature whatsoever; and
(c) The execution and delivery of this Agreement by the Shareholders does not, and the performance of this Agreement by the Shareholders will not, (i) require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Entity or any other person by the Shareholder, except (A) as provided in the Merger Agreement, or (B) filings with the consummation SEC of such reports or other furnished or filed materials under the Exchange Act as may be required in connection with the execution and delivery of this Agreement and the transactions contemplated hereby and compliance with the provisions hereof do not and will not hereby; (ii) conflict with, or result in (i) any violation or breach of, or default (with or without notice or lapse of time, or both) under, any provision of the organizational documents of a Shareholder (ii) any violation or breach of, default (with or without notice or lapse of time, time or both) under any provision of, the Company’s Articles of Incorporation, Bylaws or any other agreement to which any of the Shareholders are a party, including any prior proxy, voting agreement, shareholder agreement, voting trust, trust agreement, pledge agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise or license; or (iii) conflict with or violate any (1) Law judgment, order, notice, decree, statute, law, ordinance, rule or (2) Action regulation applicable to a Shareholder any of the Shareholders or its properties to any of the Shareholders’ property or assets, or (3) any Contract or other legally binding instrument or obligation to which such Shareholder is a party or by which such Shareholder or its assets are bound, except in the case cases of each of clauses (1ii) through and (3), iii) above where such conflicts or violations would not reasonably be expected to the extent such violation, breach or other action would prevent, enjoin prevent or materially impede or delay consummation of the performance Merger or the other transactions contemplated by such Shareholder of its obligations under this the Merger Agreement or the actions of any of its Affiliates that such Shareholder has agreed to 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 or any of its assets (including the Subject Shares beneficially owned by such 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 by this Agreement and the Transaction Agreement or otherwise materially impair such Shareholder’s ability to perform its obligations hereunder.
(g) 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 reimbursement of expenses, from Bidco, the Company 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 a Shareholder.
Appears in 1 contract
Sources: Shareholder Voting and Support Agreement (Zones Inc)
Representations and Warranties of the Shareholders. Each Shareholder of the Shareholders, on its own behalf and not on behalf of any other Shareholders, hereby severally (and, for greater certainty, not jointly with any other Shareholders) represents and warrants to the Purchaser as followsfollows and acknowledges that the Purchaser is relying on such representations and warranties in connection with the transactions 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 not an individual, the Shareholders 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 it is, or is to become, a party to pursuant to the terms hereof and to 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 as not an individual, result in a breach or violation of the date hereofarticles 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, andor (ii) violate any provision of any applicable law or regulation or any judicial or administrative order, except as otherwise permitted pursuant award, judgment or decree applicable to Section 1 hereof, shall be at all times during the term of this Agreement, Shareholders;
(d) the indirect or direct Shareholder is the registered and beneficial owner of that number of Global shopCBD Shares, as the Subject Shares case may be, set forth opposite the Shareholder’s name in Schedule “A” (such Shareholders’ name on Schedule A hereto (and AY Holdings is common shares comprising part of 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 Purchased Shares), free and clear of all liens, charges, mortgages, security interests, pledges, demands, claims and other encumbrances of any Liens nature whatsoever;
(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 Sharese) other than as set forth opposite its name on Schedule A. Schedule A sets forth a true and complete list Disclosed, except for the Purchaser’s rights hereunder, no person has any agreement or option or any right or privilege capable of all becoming an agreement for the purchase of the Subject Purchased 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 (held 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, Shareholder and none of such Subject Shares common shares of Global shopCBD are subject to any proxyvoting trust, shareholders agreement, voting trust agreement or other Contract, arrangement or restriction agreement with respect to the Transfer 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 voting of the Subject Shares (other than as set forth in Shareholder is required to be obtained by 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 connection 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, validly existing and in good standing under the Laws of Canada or Netherlands, as applicable, and (ii) has the requisite corporate, company, partnership or other power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby and to comply with the terms hereof. The execution and delivery of this Agreement or the consummation by each the Shareholder of the Transaction, except for those consents, orders, authorizations, declarations, registrations or approvals which are contemplated by this Agreement or those consents, orders, authorizations, declarations, registrations or approvals that, if not obtained, would not prevent or materially delay the consummation of the Transaction or otherwise prevent the Shareholder from performing its obligations under this Agreement;
(g) except for the Non-Resident Shareholders, the Shareholder is not a “non-resident” of Canada within the meaning of the Tax Act;
(h) unless the Shareholder is a U.S. Shareholder and has completed and delivered a U.S. Representation Letter for U.S. Shareholders in the form attached hereto as Schedule “B” (in which case the Shareholder makes the representations, warranties and covenants therein):
(i) the offer to purchase the Shareholder’s Purchased Shares was not made to the Shareholder when either the Shareholder or any beneficial purchaser for whom it is acting, if applicable, was in the United States;
(ii) the Shareholder is not a U.S. Person, is not in the United States and is not acquiring the applicable Payment Shares on behalf of, or for the account or benefit of, a U.S. Person or a person in the United States;
(iii) at the time this Agreement was executed and delivered by the Shareholder, the consummation by each Shareholder was outside the United States;
(iv) if the Shareholder is a corporation or entity, (A) a majority of the transactions contemplated hereby Shareholder’s voting equity is beneficially owned by persons resident outside the United States; and (B) the Shareholder’s affairs are wholly controlled and directed from outside of the United States;
(v) the Shareholder or any beneficial purchaser for whom it is acting, if applicable, has no intention to distribute either directly or indirectly any of the Payment Shares in the United States, except in compliance by each Shareholder with the provisions hereof U.S. Securities Act; and
(vi) the current structure of this transaction and all transactions and activities contemplated in this Agreement is not a scheme by the Shareholder to avoid the registration requirements of the U.S. Securities Act and any applicable state securities laws;
(i) Non-Resident Shareholders represent, warrant and/or acknowledge, as applicable, that:
(i) the Payment Shares issuable hereunder have not been duly authorized and will not be registered under the securities laws of any foreign jurisdiction and that the issuance of the Payment Shares pursuant to the terms of this Agreement is being made in reliance on applicable exemptions; and
(ii) the receipt of the Payment Shares by all requisite corporateNon-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, company, partnership or any other report with respect to such transfer; and (ii) any registration or other action obligation 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.Purchaser;
(dj) 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 conflict with, or result in (i) any violation or breach of, or default (with or without notice or lapse of time, or both) under, 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 (2) Action applicable to a Shareholder or its properties or assets, or (3) any Contract or other legally binding instrument or obligation to which such Shareholder is a party or by which such Shareholder or its assets are bound, in the case of each of clauses (1) through (3), to the extent such violation, breach or other action would prevent, enjoin or materially delay the performance by such Shareholder of its obligations under this Agreement or the actions of any of its Affiliates that such Shareholder has agreed not authorized any person to procure. No Consent of, act as broker or registration, declaration, notice finder or filing with, in any Governmental Authority is necessary, under Applicable Law, for the consummation by the Shareholders of other similar capacity in connection with the transactions contemplated by this Agreement., that in any manner may or will impose liability on Global shopCBD or the Purchaser; and
(fk) With respect to each Shareholder, as of the date hereof, there is no Action pending against or, to the knowledge of such the Shareholder, threatened in writing against it no representation or any of its assets (including the Subject Shares beneficially owned by such Shareholder) before or by any Governmental Authority that would reasonably be expected to prevent or materially delay or impair the consummation by such Shareholder warranty of the transactions contemplated by Shareholder contained in this Agreement and the Transaction Agreement or otherwise materially impair such Shareholder’s ability to perform its obligations hereunder.
(g) No broker, finder, investment banker, financial advisor, or other Person is entitled to contains any brokerage, finder’s or other similar fee or commission, or the reimbursement of expenses, from Bidco, the Company 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 untrue statement of a Shareholdermaterial fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading.
Appears in 1 contract
Sources: Share Exchange Agreement
Representations and Warranties of the Shareholders. Each Shareholder of the Shareholders, on its own behalf and not on behalf of any other Shareholder, hereby severally (and, for greater certainty, not jointly with any other Shareholder) represents and warrants to the Purchaser as followsfollows and acknowledges that the Purchaser is relying on such representations and warranties in connection with the transactions contemplated herein:
(a) Such the Shareholder (i) is as the registered and beneficial holder of the date hereof, and, except as otherwise permitted pursuant to Section 1 hereof, shall be at all times during the term that number of this Agreement, the indirect or direct beneficial owner shares of the Subject Shares Modern Meat set forth opposite the Shareholder’s name in Schedule “A” (such Shareholders’ name on Schedule A hereto (and AY Holdings is shares comprising part of 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 Purchased Shares), with good and marketable title thereto, free and clear of all liens, mortgages, security interests, pledges, demands, claims and other encumbrances of any Liens (nature whatsoever and, except to the extent the Shareholder holds Purchased Options or Purchased Warrants set out on Schedule B, the Shareholder has no rights or options to receive or acquire additional shares of Modern Meat. No Person other than (1) Permitted Liensthe Purchaser has, (2) Liens granted to one or more finance providers in connection with has any financing facility to which right capable of becoming, any agreement, option, right or privilege for the purchase or other acquisition from the Shareholder and/or 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 the constating documents of Modern Meat and applicable Laws;
(b) the Shareholder has good right, full power and absolute authority to assign, sell and transfer its Affiliates is a party, (3) written restrictions on transfer under applicable securities Laws, (4) 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;
(5c) the Shareholders Agreement Shareholder has all necessary power, authority 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 capacity 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) all other than agreements and instruments to be executed by the Shareholder as set forth opposite its name on Schedule A. Schedule A sets forth a true contemplated by this Agreement and complete list of all of to carry out the Subject Shares as of the date hereof.obligations thereof under this Agreement and such other agreements and instruments;
(bd) Except with respect to obligations under if 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 6Shareholder is a corporation, 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, validly existing and in good standing under the Laws of Canada or Netherlands, as applicable, and (ii) has the requisite corporate, company, partnership or other power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby and to comply with the terms hereof. The execution and delivery of this Agreement by each Shareholder, the consummation by each Shareholder of the transactions contemplated hereby and the compliance by each Shareholder with the provisions hereof have has been duly authorized by all requisite corporate, company, partnership or other necessary corporate action on of the part of each Shareholder, 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 andthe Shareholder, assuming due authorization, execution and delivery by ▇▇▇▇▇ and the Company, is enforceable against each Shareholder it in accordance with its termsterms subject, subject however, to any Enforceability Exceptions.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;
(e) The 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 Shareholder in connection with the execution and delivery of this Agreement, Agreement or the consummation of the transactions Transaction, except for those consents, orders, authorizations, declarations, registrations or approvals which are contemplated hereby and compliance with the provisions hereof do by this Agreement or those consents, orders, authorizations, declarations, registrations or approvals that, if not and will obtained, would not conflict with, or result in (i) any violation or breach of, or default (with or without notice or lapse of time, or both) under, 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 (2) Action applicable to a Shareholder or its properties or assets, or (3) any Contract or other legally binding instrument or obligation to which such Shareholder is a party or by which such Shareholder or its assets are bound, in the case of each of clauses (1) through (3), to the extent such violation, breach or other action would prevent, enjoin prevent or materially delay the performance by such consummation of the Transaction or otherwise prevent the Shareholder of from performing its obligations under this Agreement or Agreement;
(f) the actions of any of its Affiliates that such Shareholder is resident at the address set forth opposite the Shareholder’s name in Schedule “A”;
(g) the Shareholder has agreed not authorized any person to procure. No Consent of, act as broker or registration, declaration, notice finder or filing with, in any Governmental Authority is necessary, under Applicable Law, for the consummation by the Shareholders of other similar capacity in connection with the transactions contemplated by this Agreement.; and
(fh) With respect to each Shareholder, as of the date hereof, there is no Action pending against or, to the knowledge of such the Shareholder, threatened in writing against it no representation or any of its assets (including the Subject Shares beneficially owned by such Shareholder) before or by any Governmental Authority that would reasonably be expected to prevent or materially delay or impair the consummation by such Shareholder warranty of the transactions contemplated by Shareholder contained in this Agreement and the Transaction Agreement or otherwise materially impair such Shareholder’s ability to perform its obligations hereunder.
(g) No broker, finder, investment banker, financial advisor, or other Person is entitled to contains any brokerage, finder’s or other similar fee or commission, or the reimbursement of expenses, from Bidco, the Company 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 untrue statement of a Shareholdermaterial fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading.
Appears in 1 contract
Sources: Share Exchange Agreement
Representations and Warranties of the Shareholders. Each Shareholder of the Shareholders, on its own behalf and not on behalf of any other Shareholder, hereby severally (and, for greater certainty, not jointly with any other Shareholder) represents and warrants to the Purchaser as followsfollows and acknowledges that the Purchaser is relying on such representations and warranties in connection with the transactions 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 (i) is as and each is, or will be at the Time of Closing, a legal, valid and binding obligation of the date hereofShareholder, andenforceable against the Shareholder in accordance with its terms;
(b) if the Shareholder is not an individual, except as otherwise permitted 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 it is, or is to become, a party to pursuant to Section 1 hereof, shall be at all times during the term terms hereof and to perform its obligations hereunder and thereunder;
(c) the execution and delivery of this AgreementAgreement does not, and the indirect consummation of the Transaction will not violate any provision of any applicable law or direct 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 the Subject Shares that number of common shares of FSB set forth opposite the Shareholder’s name in Schedule "A" (such Shareholders’ name on Schedule A hereto (and AY Holdings is common share comprising part of 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 Purchased Shares), free and clear of any Liens (other than (1) Permitted all Liens, charges, mortgages, security interests, pledges, demands, claims and other encumbrances of any nature whatsoever;
(2e) Liens granted to one except for the Purchaser’s rights hereunder, no person has any agreement 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 option or any right or privilege capable of its Affiliates’ ability to enter into this Agreement or vote in accordance with Section 2becoming an agreement for the purchase of the common shares of FSB (namely the Purchased Shares), and (ii) does not, nor do any of its Affiliates, own of record held 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, Shareholder and none of such Subject Shares common shares of FSB are subject to any proxyvoting trust, shareholders agreement, voting trust agreement or other Contract, arrangement or restriction agreement with respect to the Transfer disposition or enjoyment of any rights of such common shares of FSB;
(f) no consent, approval, order or authorization of, or registration or declaration with, any applicable Governmental Authority with jurisdiction over the voting of Shareholder is required to be obtained by the Subject Shares (other than as set forth Shareholder 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 connection 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, validly existing and in good standing under the Laws of Canada or Netherlands, as applicable, and (ii) has the requisite corporate, company, partnership or other power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby and to comply with the terms hereof. The execution and delivery of this Agreement by each Shareholder, or the consummation by each the Shareholder of the transactions Transaction, except for those consents, orders, authorizations, declarations, registrations or approvals which are contemplated hereby by this Agreement or those consents, orders, authorizations, declarations, registrations or approvals that, if not obtained, would not prevent or materially delay the consummation of the Transaction or otherwise prevent the Shareholder from performing its obligations under this Agreement;
(g) except as Disclosed by the Shareholder to the Purchaser the Shareholder is a "non-resident" of Canada within the meaning of the Tax Act;
(h) Non-Resident Shareholders represent, warrant and/or acknowledge, as applicable, that:
i. the Payment Shares issuable hereunder have not been and will not be registered under the compliance 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 each Shareholder 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 the provisions hereof have been duly authorized by all requisite corporate, company, partnership respect to such transfer; and (ii) any registration or other action obligation 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.Purchaser;
(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 conflict with, or result in (i) any violation or breach ofexcept for the Finder, or default (with or without notice or lapse of time, or both) under, 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 (2) Action applicable to a Shareholder or its properties or assets, or (3) any Contract or other legally binding instrument or obligation to which such Shareholder is a party or by which such Shareholder or its assets are bound, in the case of each of clauses (1) through (3), to the extent such violation, breach or other action would prevent, enjoin or materially delay the performance by such Shareholder of its obligations under this Agreement or the actions of any of its Affiliates that such Shareholder has agreed not authorized any other person to procure. No Consent of, act as broker or registration, declaration, notice finder or filing with, in any Governmental Authority is necessary, under Applicable Law, for the consummation by the Shareholders of other similar capacity in connection with the transactions contemplated by this Agreement., that in any manner may or will impose liability on FSB or the Purchaser; and
(fj) With respect to each Shareholder, as of the date hereof, there is no Action pending against or, to the knowledge of such the Shareholder, threatened in writing against it no representation or any of its assets (including the Subject Shares beneficially owned by such Shareholder) before or by any Governmental Authority that would reasonably be expected to prevent or materially delay or impair the consummation by such Shareholder warranty of the transactions contemplated by Shareholder contained in this Agreement and the Transaction Agreement or otherwise materially impair such Shareholder’s ability to perform its obligations hereunder.
(g) No broker, finder, investment banker, financial advisor, or other Person is entitled to contains any brokerage, finder’s or other similar fee or commission, or the reimbursement of expenses, from Bidco, the Company 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 untrue statement of a Shareholdermaterial fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading.
Appears in 1 contract
Representations and Warranties of the Shareholders. Each Shareholder of the Shareholders, on its own behalf and not on behalf of any other Shareholder, hereby severally (and, for greater certainty, not jointly with any other Shareholder) represents and warrants to the Purchaser as followsfollows and acknowledges that the Purchaser is relying on such representations and warranties in connection with the transactions 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 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 it is, or is to become, a party to pursuant to the terms hereof and to 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 as not an individual, result in a breach or violation of the date hereofconstitution, andarticles 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, except as otherwise permitted pursuant or (ii) violate any provision of any applicable law or regulation or any judicial or administrative order, award, judgment or decree applicable to Section 1 hereof, shall be at all times during the term of this Agreement, Shareholder;
(d) the indirect or direct Shareholder is the registered and beneficial owner of that number of Springleaf Shares, as the Subject Shares case may be, set forth opposite the Shareholder’s name in Schedule “A” (such Shareholders’ name on Schedule A hereto (and AY Holdings is ordinary shares comprising part of 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 Purchased Shares), free and clear of all liens, charges, mortgages, security interests, pledges, demands, claims and other encumbrances of any Liens nature whatsoever;
(other than (1e) Permitted Liensexcept for the Purchaser’s rights hereunder, (2) Liens granted to one no person has any agreement 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 option or any right or privilege capable of its Affiliates’ ability to enter into this Agreement or vote in accordance with Section 2), and becoming an agreement for the purchase of the ordinary shares of Springleaf (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 namely the Purchased 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 (held 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, Shareholder and none of such Subject Shares ordinary shares of Springleaf are subject to any proxyvoting trust, shareholders agreement, voting trust agreement or other Contract, arrangement or restriction agreement with respect to the Transfer disposition or enjoyment of any rights of such ordinary shares of Springleaf;
(f) no consent, approval, order or authorization of, or registration or declaration with, any applicable Governmental Authority with jurisdiction over the voting of Shareholder is required to be obtained by the Subject Shares (other than as set forth Shareholder 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 connection 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, validly existing and in good standing under the Laws of Canada or Netherlands, as applicable, and (ii) has the requisite corporate, company, partnership or other power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby and to comply with the terms hereof. The execution and delivery of this Agreement or the consummation by each the Shareholder of the Transaction, except for those consents, orders, authorizations, declarations, registrations or approvals which are contemplated by this Agreement or those consents, orders, authorizations, declarations, registrations or approvals that, if not obtained, would not prevent or materially delay the consummation of the Transaction or otherwise prevent the Shareholder from performing its obligations under this Agreement;
(g) all the Shareholders are a “non-resident” of Canada within the meaning of the Tax Act;
(h) unless the Shareholder is a U.S. Shareholder and has completed and delivered a U.S. Representation Letter for U.S. Shareholder in the form attached hereto as Schedule “C” (in which case the Shareholder makes the representations, warranties and covenants therein):
(i) the offer to purchase the Shareholder’s Purchased Shares was not made to the Shareholder when either the Shareholder or any beneficial purchaser for whom it is acting, if applicable, was in the United States;
(ii) the Shareholder is not a U.S. Person, is not in the United States and is not acquiring the applicable Payment Shares on behalf of, or for the account or benefit of, a U.S. Person or a person in the United States;
(iii) at the time this Agreement was executed and delivered by the Shareholder, the consummation by each Shareholder was outside the United States;
(iv) if the Shareholder is a corporation or entity, (A) a majority of the transactions contemplated hereby Shareholder’s voting equity is beneficially owned by persons resident outside the United States; and (B) the Shareholder’s affairs are wholly controlled and directed from outside of the United States;
(v) the Shareholder or any beneficial purchaser for whom it is acting, if applicable, has no intention to distribute either directly or indirectly any of the Payment Shares in the United States, except in compliance by each Shareholder with the provisions hereof U.S. Securities Act; and
(vi) the current structure of this transaction and all transactions and activities contemplated in this Agreement is not a scheme to avoid the registration requirements of the U.S. Securities Act and any applicable state securities laws;
(i) Non-Resident Shareholders represent, warrant and/or acknowledge, as applicable, that:
(i) the Payment Shares issuable hereunder have not been duly authorized and will not be registered under the securities laws of any foreign jurisdiction and that the issuance of the Payment Shares pursuant to the terms of this Agreement is being made in reliance on applicable exemptions under the applicable securities law of the foreign jurisdiction, including the Singapore Securities and Futures Act (Cap. 289); and
(ii) the receipt of the Payment Shares by all requisite corporateNon-Resident Shareholders does not contravene any of the applicable securities legislation in the jurisdiction in which it is resident, companyincluding the Singapore Securities and Futures Act (Cap. 289) and does not trigger: (i) any obligation to prepare and file a prospectus or similar document, partnership or any other report with respect to such transfer; and (ii) any registration or other action obligation 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.Purchaser;
(dj) 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 conflict with, or result in (i) any violation or breach of, or default (with or without notice or lapse of time, or both) under, 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 (2) Action applicable to a Shareholder or its properties or assets, or (3) any Contract or other legally binding instrument or obligation to which such Shareholder is a party or by which such Shareholder or its assets are bound, in the case of each of clauses (1) through (3), to the extent such violation, breach or other action would prevent, enjoin or materially delay the performance by such Shareholder of its obligations under this Agreement or the actions of any of its Affiliates that such Shareholder has agreed not authorized any person to procure. No Consent of, act as broker or registration, declaration, notice finder or filing with, in any Governmental Authority is necessary, under Applicable Law, for the consummation by the Shareholders of other similar capacity in connection with the transactions contemplated by this Agreement., that in any manner may or will impose liability on Springleaf or the Purchaser; and
(fk) With respect to each Shareholder, as of the date hereof, there is no Action pending against or, to the knowledge of such the Shareholder, threatened in writing against it no representation or any of its assets (including the Subject Shares beneficially owned by such Shareholder) before or by any Governmental Authority that would reasonably be expected to prevent or materially delay or impair the consummation by such Shareholder warranty of the transactions contemplated by Shareholder contained in this Agreement and the Transaction Agreement or otherwise materially impair such Shareholder’s ability to perform its obligations hereunder.
(g) No broker, finder, investment banker, financial advisor, or other Person is entitled to contains any brokerage, finder’s or other similar fee or commission, or the reimbursement of expenses, from Bidco, the Company 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 untrue statement of a Shareholdermaterial fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading.
Appears in 1 contract
Sources: Share Exchange Agreement
Representations and Warranties of the Shareholders. Each Shareholder Other than as Disclosed, each of the Shareholders, on 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 Purchaser as followsfollows and acknowledges that the Purchaser is relying on such representations and warranties in connection with the transactions 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 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 it is, or is to become, a party to pursuant to the terms hereof and to 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 as not an individual, result in a breach or violation of the date hereofarticles 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, andor (ii) violate any provision of any applicable law or regulation or any judicial or administrative order, except as otherwise permitted pursuant award, judgment or decree applicable to Section 1 hereof, shall be at all times during the term of this Agreement, Shareholder;
(d) the indirect or direct Shareholder is the registered and beneficial owner of the Subject Shares that number of M▇▇▇▇▇ ▇▇▇▇▇▇ set forth opposite the Shareholder’s name in Schedule “A” (such Shareholders’ name on Schedule A hereto (and AY Holdings is common shares comprising part of 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 Purchased Shares), free and clear of all liens, charges, mortgages, security interests, pledges, demands, claims and other encumbrances of any Liens nature whatsoever;
(other than (1e) Permitted Liensexcept for the Purchaser’s rights hereunder, (2) Liens granted to one no person has any agreement 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 option or any right or privilege capable 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 becoming an agreement 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 the purchase of the Subject Purchased 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 (held 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, Shareholder and none of such Subject Shares M▇▇▇▇▇ ▇▇▇▇▇▇ are subject to any proxyvoting trust, shareholders agreement, voting trust agreement or other Contract, arrangement or restriction agreement with respect to the Transfer disposition or enjoyment of any rights of such common shares of Midori;
(f) to the voting knowledge of the Subject Shares (other than as set forth in 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 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 connection 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, validly existing and in good standing under the Laws of Canada or Netherlands, as applicable, and (ii) has the requisite corporate, company, partnership or other power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby and to comply with the terms hereof. The execution and delivery of this Agreement or the consummation by each the Shareholder of the Transaction, except for those consents, orders, authorizations, declarations, registrations or approvals which are contemplated by this Agreement or those consents, orders, authorizations, declarations, registrations or approvals that, if not obtained, would not prevent or materially delay the consummation of the Transaction or otherwise prevent the Shareholder from performing its obligations under this Agreement;
(g) except for the Non-Resident Shareholders, the Shareholder is not a “non-resident” of Canada within the meaning of the Tax Act;
(h) unless the Shareholder is a U.S. Shareholder and has completed and delivered a U.S. Representation Letter for U.S. Shareholders in the form attached hereto as Schedule “C” (in which case the Shareholder makes the representations, warranties and covenants therein):
(i) the offer to purchase the Shareholder’s Purchased Shares was not made to the Shareholder when either the Shareholder or any beneficial purchaser for whom it is acting, if applicable, was in the United States;
(ii) the Shareholder is not a U.S. Person, is not in the United States and is not acquiring the applicable Payment Shares on behalf of, or for the account or benefit of, a U.S. Person or a person in the United States;
(iii) at the time this Agreement was executed and delivered by the Shareholder, the consummation by each Shareholder was outside the United States;
(iv) if the Shareholder is a corporation or entity, (A) a majority of the transactions contemplated hereby Shareholder’s voting equity is beneficially owned by persons resident outside the United States; and (B) the Shareholder’s affairs are wholly controlled and directed from outside of the United States;
(v) the Shareholder or any beneficial purchaser for whom it is acting, if applicable, has no intention to distribute either directly or indirectly any of the Payment Shares in the United States, except in compliance by each Shareholder with the provisions hereof U.S. Securities Act; and
(vi) the current structure of this transaction and all transactions and activities contemplated in this Agreement is not a scheme by the Shareholder to avoid the registration requirements of the U.S. Securities Act and any applicable state securities laws;
(i) Non-Resident Shareholders represent, warrant and/or acknowledge, as applicable, that:
(i) the Payment Shares issuable hereunder have not been duly authorized and will not be registered under the securities laws of any foreign jurisdiction and that the issuance of the Payment Shares pursuant to the terms of this Agreement is being made in reliance on applicable exemptions; and
(ii) the receipt of the Payment Shares by all requisite corporateNon-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, company, partnership or any other report with respect to such transfer; and (ii) any registration or other action obligation 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.Purchaser;
(dj) 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 conflict with, or result in (i) any violation or breach of, or default (with or without notice or lapse of time, or both) under, 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 (2) Action applicable to a Shareholder or its properties or assets, or (3) any Contract or other legally binding instrument or obligation to which such Shareholder is a party or by which such Shareholder or its assets are bound, in the case of each of clauses (1) through (3), to the extent such violation, breach or other action would prevent, enjoin or materially delay the performance by such Shareholder of its obligations under this Agreement or the actions of any of its Affiliates that such Shareholder has agreed not authorized any person to procure. No Consent of, act as broker or registration, declaration, notice finder or filing with, in any Governmental Authority is necessary, under Applicable Law, for the consummation by the Shareholders of other similar capacity in connection with the transactions contemplated by this Agreement., that in any manner may or will impose liability on Midori or the Purchaser; and
(fk) With respect to each Shareholder, as of the date hereof, there is no Action pending against or, to the knowledge of such the Shareholder, threatened in writing against it no representation or any of its assets (including the Subject Shares beneficially owned by such Shareholder) before or by any Governmental Authority that would reasonably be expected to prevent or materially delay or impair the consummation by such Shareholder warranty of the transactions contemplated by Shareholder contained in this Agreement and the Transaction Agreement or otherwise materially impair such Shareholder’s ability to perform its obligations hereunder.
(g) No broker, finder, investment banker, financial advisor, or other Person is entitled to contains any brokerage, finder’s or other similar fee or commission, or the reimbursement of expenses, from Bidco, the Company 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 untrue statement of a Shareholdermaterial fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading.
Appears in 1 contract
Representations and Warranties of the Shareholders. Each Shareholder hereby represents and warrants (severally, and not jointly, as to itself only) to CGAC as follows:
(a) Such Except as disclosed on Schedule 2 hereto, 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 sole beneficial owner (within the meaning of Rule 13d-3 under the Subject Shares set forth opposite Exchange Act) of, and has good, valid and marketable title to or has a valid proxy to vote 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 Shareholder’s Covered Shares), free and clear of any Liens liens (other than (1) Permitted Liensas created by this Agreement or the Organizational Documents of the Company). As of the date hereof, (2) Liens granted to one or more finance providers in connection with any financing facility to which other than 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 Owned Shares set forth opposite such Shareholder’s name on Schedule 1, such Shareholder does not own beneficially 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 hereofor any interest therein.
(b) Except with respect to obligations under the Company Organizational DocumentsSuch Shareholder, 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), each case except as set forth provided in this Agreement or the Transaction Agreement. Neither Organizational Documents of the Shareholders nor any Company, (i) has full voting power, full power of their Affiliates have 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 Contract 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 the terms 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 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 in 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 way restrict, limit such agreement or interfere with the performance of the Shareholders’ obligations hereunderundertaking.
(c) Such Shareholder affirms that (i) if the Shareholder is duly organizeda natural person, validly existing and in good standing under the Laws of Canada he or Netherlands, as applicable, and (ii) she has the legal capacity and all the requisite corporate, company, partnership or other power and authority and has taken all action necessary in order to execute and deliver this Agreement, to perform its his or her obligations hereunder and to consummate the transaction contemplated hereby, and (ii) if the Shareholder is not a natural person, it (A) is a legal entity duly organized, validly existing and, to the extent such concept is applicable, in good standing under the Laws of the jurisdiction of its 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 this Agreement and to consummate the transactions contemplated hereby hereby. This Agreement has been duly executed and delivered by such Shareholder and, subject to comply with the terms hereof. The due execution and delivery of this Agreement by each Shareholderother Party hereto, constitutes a legally valid and binding agreement of such Shareholder enforceable against the consummation by each Shareholder of the transactions contemplated hereby and the compliance by each Shareholder in accordance with the provisions terms hereof have been duly authorized (except as enforceability may be limited by all requisite corporate, company, partnership bankruptcy Laws or other action on similar Laws affecting creditors’ rights and general principles of equity affecting the part availability of each Shareholder, specific performance 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 hereofequitable remedies).
(d) This Agreement has been duly Other than the filings, notices and validly executed reports pursuant to, in 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 delivered performance by each Shareholder, constitutes a valid and binding obligation of each such 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 or the Business Combination or the other transactions contemplated by the Business Combination Agreement.
(e) The execution, delivery and compliance with performance of this Agreement by such Shareholder does not, and the provisions hereof do not consummation of the transactions contemplated hereby and the Business Combination and the other transactions contemplated by the Business Combination Agreement will not conflict withnot, constitute or result in (i) any a breach or violation or breach of, or a default under, the Organizational Documents of such Shareholder (if such Shareholder is not a natural person), (ii) with or without notice or notice, lapse of time, time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss of any provision benefit under, the creation, modification or acceleration of any obligations under or the creation of a Security Interest on any of the organizational documents properties, rights or assets of a such 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 (2) Action applicable pursuant to a Shareholder or its properties or assets, or (3) any Contract or other legally binding instrument or obligation 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 or by which under any Contract legally binding upon such Shareholder or its assets are boundShareholder, except, in the case of each clause (ii) or (iii) directly above, for any such breach, violation, termination, default, creation, acceleration or change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair such Shareholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of clauses the Business Combination or the other transactions contemplated by the Business Combination Agreement.
(1f) through (3)As of the date of this Agreement, there is no Action pending against such Shareholder or, to the extent knowledge of such violationShareholder, breach threatened against such Shareholder that, in any manner, questions the beneficial or other action would record ownership of the Shareholder’s Covered Shares or the validity of this Agreement, or challenges or seeks to prevent, enjoin or materially delay the performance by such Shareholder of its obligations under this Agreement or the actions of any of its Affiliates that such Shareholder has agreed to 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.
(fg) With The Shareholder is a sophisticated shareholder and has adequate information concerning the business and financial condition of CGAC and the Company to make an informed decision regarding this Agreement and the other transactions contemplated by the Business Combination Agreement and has independently, 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 CGAC and the Company have not made and do not make any representation or warranty, whether express or implied, of any kind or character except as expressly set forth in this Agreement. The Shareholder acknowledges that the agreements contained herein with respect to each the Covered Shares held by the Shareholder are irrevocable.
(h) Such Shareholder understands and acknowledges that CGAC is entering into the Business Combination Agreement in reliance upon such Shareholder’s execution and delivery of this Agreement and the representations, as warranties, covenants and other agreements of such Shareholder contained herein.
(i) 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 CGAC or the Company is or could be liable in connection with the Business Combination Agreement or this Agreement or any of the date hereofrespective transactions contemplated hereby or thereby, there is no Action pending against in each case based upon arrangements made by such Shareholder in his, her or its capacity as a shareholder or, to the knowledge of such Shareholder, threatened in writing against it or any on behalf of its assets (including the Subject Shares beneficially owned by such 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 by this Agreement and the Transaction Agreement in his, her or otherwise materially impair such Shareholder’s ability to perform its obligations hereundercapacity as a shareholder.
(gj) No brokerSuch Shareholder is not, finder, investment banker, financial advisor, nor is owned or other Person is entitled to any brokerage, finder’s or other similar fee or commission, or the reimbursement of expenses, from Bidco, the Company or their Affiliates (other than the Shareholders) in connection with the transactions contemplated hereby or by the Transaction Agreement based upon arrangements made controlled by or acting on behalf of of, nor is represented by any authorized person who is, a ShareholderProhibited Person.
Appears in 1 contract
Sources: Voting and Support Agreement (Corner Growth Acquisition Corp.)
Representations and Warranties of the Shareholders. Each Shareholder of the Shareholders, on its own behalf and not on behalf of any other Shareholder, hereby severally (and, for greater certainty, not jointly with any other Shareholder) represents and warrants to the Purchaser as followsfollows and acknowledges that the Purchaser is relying on such representations and warranties in connection with the transactions 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 Closing Time, duly authorized, executed and delivered by the Shareholder and each is, or will be at the Closing Time, a legal, valid and binding obligation of the Shareholder, enforceable against the Shareholder in accordance with its terms;
(b) 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 it is, or is to become, a party to pursuant to the terms hereof and to 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 as not an individual, result in a breach or violation of the date hereofarticles 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, andor (ii) violate any provision of any applicable law or regulation or any judicial or administrative order, except as otherwise permitted pursuant award, judgment or decree applicable to Section 1 hereof, shall be at all times during the term of this Agreement, Shareholder;
(d) the indirect or direct Shareholder is the registered and beneficial owner of that number of Beyond Oil Shares, as the Subject Shares case may be, set forth opposite the Shareholder’s name in Schedule “A” (such Shareholders’ name on Schedule A hereto (and AY Holdings is Beyond Oil Shares comprising part of 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 Purchased Shares), free and clear of all Liens;
(e) except for the Purchaser’s rights hereunder, no person has any Liens (other than (1) Permitted Liens, (2) Liens granted to one agreement 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 option or any right or privilege capable of its Affiliates’ ability to enter into this Agreement or vote in accordance with Section 2), and (ii) does not, nor do any becoming an agreement for the purchase of its Affiliates, own of record or beneficially own any Company the Beyond Oil Shares (or any securities convertible into or exercisable or exchangeable or redeemable for any Company namely the Purchased 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 (held 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, Shareholder and none of such Subject Beyond Oil Shares are subject to any proxyvoting trust, shareholders agreement, voting trust agreement or other Contract, arrangement or restriction agreement with respect to the Transfer disposition or enjoyment of any rights of such Beyond Oil Shares;
(f) there is no pending or threatened legal, administrative, arbitral or other proeceding, claim, mediation, suit or action, or governmental, regulatory or similar investigation or audit against the voting of Shareholder that could reasonably be expected to have an effect on 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 Beyond Oil Shares, or any otherwise that may have the effect of its Affiliates’ compliance challenging, preventing, delaying, making illegal or otherwise interfering 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, validly existing and in good standing under the Laws of Canada or Netherlands, as applicable, and (ii) has the requisite corporate, company, partnership or other power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby and under this Agreement;
(g) no consent, approval, order or authorization of, or registration or declaration with, any applicable Governmental Authority with jurisdiction over the Shareholder is required to comply be obtained by the Shareholder in connection with the terms hereof. The execution and delivery of this Agreement by each Shareholder, or the consummation by each the Shareholder of the transactions Transaction, except for those consents, orders, authorizations, declarations, registrations or approvals which are contemplated hereby by this Agreement or those consents, orders, authorizations, declarations, registrations or approvals that, if not obtained, would not prevent or materially delay the consummation of the Transaction or otherwise prevent the Shareholder from performing its obligations under this Agreement;
(h) the respective diligence materials provided in written form, if any, whether in a data room or via alternate electronic deliveries, including e-mail and similar applications, provided by the compliance by each Shareholder to the Purchaser or Beyond Oil for the purpose of determining the terms of the Transaction are true and correct in all material respects;
(i) the Shareholder is a “non-resident” of Canada within the meaning of the Tax Act, and Purchased Shares do not constitute “taxable Canadian property” within the meaning of the Tax Act;
(j) if the Shareholder is a holder of any Target PubCo Options, such Shareholder remains eligible to hold the Target PubCo Options under the terms of the Beyond Oil Option Plan. Such Shareholder has not committed any act or omission which would result in the termination of the Target PubCo Options or any default under the terms of any agreement or certificate governing the Target PubCo Options or the Beyond Oil Option Plan. Such Shareholder further has not encumbered in any way, or granted any rights to another party, with respect to the provisions hereof have been duly authorized by all requisite corporateTarget PubCo Options;
(k) where a person is an owner or holder of Target Pubco Options, companyor will otherwise and in any capacity receive Resulting Issuer Options, partnership restricted shares or other action on the part payment or deliverable of each Shareholder, and no other corporate, company, partnership or other organizational proceedings on the part of each Shareholder are necessary to authorize any description in accordance with this Agreement, to consummate other than as mere owner of Purchased Shares, such person has not provided any services of any description at any time in Canada, and for greater certainty is not receiving any such Resulting Issuer Options, restricted shares or other payment or deliverable (as the transactions contemplated hereby case may be) in respect of services rendered or to comply with the provisions hereof.be rendered in Canada;
(dl) This the offer to purchase the Shareholder’s Purchased Shares, as the case may be, was not made to the Shareholder when either the Shareholder or any beneficial purchaser for whom it is acting, if applicable, was in the United States;
(m) the Shareholder is not a U.S. Person, is not in the United States and is not acquiring the applicable Payment Shares on behalf of, or for the account or benefit of, a U.S. Person or a person in the United States;
(n) at the time this Agreement has been duly and validly was executed and delivered by each the Shareholder, constitutes a valid and binding obligation of each the Shareholder and, assuming due authorization, execution and delivery by ▇▇▇▇▇ and was outside the Company, is enforceable against each Shareholder in accordance with its terms, subject to any Enforceability Exceptions.United States;
(eo) The execution and delivery of this Agreement, if the consummation Shareholder is a corporation or entity: (A) a majority of the transactions contemplated hereby Shareholder’s voting equity is beneficially owned by persons resident outside the United States; and (B) the Shareholder’s affairs are wholly controlled and directed from outside of the United States;
(p) the Shareholder or any beneficial purchaser for whom it is acting, if applicable, has no intention to distribute either directly or indirectly any of the Payment Shares in the United States, except in compliance with the provisions hereof do United States. Securities Act of 1933;
(q) the current structure of this transaction and all transactions and activities contemplated in this Agreement is not and will not conflict with, or result in (i) any violation or breach of, or default (with or without notice or lapse of time, or both) under, any provision a scheme to avoid the registration requirements of the organizational documents United States Securities Act of a Shareholder 1933 and any applicable state securities laws;
(iir) any violation or breach ofother than the Finders, default (with or without notice or lapse of time, or both) under or conflict with any (1) Law or (2) Action applicable to a Shareholder or its properties or assets, or (3) any Contract or other legally binding instrument or obligation to which such Shareholder is a party or by which such Shareholder or its assets are bound, in the case of each of clauses (1) through (3), to the extent such violation, breach or other action would prevent, enjoin or materially delay the performance by such Shareholder of its obligations under this Agreement or the actions of any of its Affiliates that such Shareholder has agreed not authorized any person to procure. No Consent of, act as broker or registration, declaration, notice finder or filing with, in any Governmental Authority is necessary, under Applicable Law, for the consummation by the Shareholders of other similar capacity in connection with the transactions contemplated by this Agreement., that in any manner may or will impose liability on Beyond Oil or the Purchaser; and
(fs) With respect to each Shareholder, as no representation or warranty of the date hereof, there is no Action pending against or, Shareholder contained in this Agreement contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading. Each of the Shareholders acknowledges and agrees that the Shareholders Representatives must deliver a certificate to the knowledge of such Shareholder, threatened in writing against it or any of its assets (including the Subject Shares beneficially owned by such 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 by this Agreement and the Transaction Agreement or otherwise materially impair such Shareholder’s ability to perform its obligations hereunder.
(g) 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 reimbursement of expenses, from Bidco, the Company 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 Purchaser on behalf of a Shareholderall Shareholders at the Closing Time certifying that the above representations and warranties remain true and correct as at the Closing Time, and as such each Shareholder agrees to immediately alert the Shareholders Representatives of any circumstance that would or may cause one of the representations and warranties contained in this Section 6.02 to be false, misleading, or incomplete in any manner whatsoever.
Appears in 1 contract
Sources: Share Purchase Agreement
Representations and Warranties of the Shareholders. Each Shareholder of the Shareholders, on its own behalf and not on behalf of any other Shareholder, hereby severally (and, for greater certainty, not jointly with any other Shareholder) represents and warrants to the Purchaser as followsfollows and acknowledges that the Purchaser is relying on such representations and warranties in connection with the transactions 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 (i) is as and each is, or will be at the Time of Closing, a legal, valid and binding obligation of the date hereofShareholder, andenforceable against the Shareholder in accordance with its terms;
(b) if the Shareholder is not an individual, except as otherwise permitted 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 it is, or is to become, a party to pursuant to Section 1 hereof, shall be at all times during the term terms hereof and to perform its obligations hereunder and thereunder;
(c) the execution and delivery of this AgreementAgreement does not, and the indirect consummation of the Transaction will not violate any provision of any applicable law or direct 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 the Subject Shares that number of common shares of NeuroPharm set forth opposite the Shareholder’s name in Schedule “A” (such Shareholders’ name on Schedule A hereto (and AY Holdings is common share comprising part of 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 Purchased Shares), free and clear of any Liens (other than (1) Permitted all Liens, charges, mortgages, security interests, pledges, demands, claims and other encumbrances of any nature whatsoever;
(2e) Liens granted to one except for the Purchaser’s rights hereunder, no person has any agreement 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 option or any right or privilege capable of its Affiliates’ ability to enter into this Agreement or vote in accordance with Section 2becoming an agreement for the purchase of the common shares of NeuroPharm (namely the Purchased Shares), and (ii) does not, nor do any of its Affiliates, own of record held 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 Shareholder;
(f) no consent, approval, order or authorization of, or registration or declaration with, any applicable Governmental Authority with jurisdiction over the date hereof, and none of such Subject Shares are subject Shareholder is required to any proxy, voting trust or other Contract, arrangement or restriction with respect to be obtained by the Transfer or the voting of the Subject Shares (other than as set forth Shareholder 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 connection 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, validly existing and in good standing under the Laws of Canada or Netherlands, as applicable, and (ii) has the requisite corporate, company, partnership or other power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby and to comply with the terms hereof. The execution and delivery of this Agreement by each Shareholder, or the consummation by each the Shareholder of the transactions Transaction, except for those consents, orders, authorizations, declarations, registrations or approvals which are contemplated hereby by this Agreement or those consents, orders, authorizations, declarations, registrations or approvals that, if not obtained, would not prevent or materially delay the consummation of the Transaction or otherwise prevent the Shareholder from performing its obligations under this Agreement;
(g) except as Disclosed by the Shareholder to the Purchaser, the Shareholder is not a “non- resident” of Canada within the meaning of the Act;
(h) Non-Resident Shareholders represent, warrant and/or acknowledge, as applicable, that:
i. the Payment Shares issuable hereunder have not been and will not be registered under the compliance 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 each Shareholder 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 the provisions hereof have been duly authorized by all requisite corporate, company, partnership respect to such transfer; and (ii) any registration or other action obligation 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.Purchaser;
(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 conflict with, or result in (i) any violation or breach of, or default (with or without notice or lapse of time, or both) under, 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 (2) Action applicable to a Shareholder or its properties or assets, or (3) any Contract or other legally binding instrument or obligation to which such Shareholder is a party or by which such Shareholder or its assets are bound, in the case of each of clauses (1) through (3), to the extent such violation, breach or other action would prevent, enjoin or materially delay the performance by such Shareholder of its obligations under this Agreement or the actions of any of its Affiliates that such Shareholder has agreed not authorized any person to procure. No Consent of, act as broker or registration, declaration, notice finder or filing with, in any Governmental Authority is necessary, under Applicable Law, for the consummation by the Shareholders of other similar capacity in connection with the transactions contemplated by this Agreement., that in any manner may or will impose liability on NeuroPharm or the Purchaser; and
(fj) With respect to each Shareholder, as of the date hereof, there is no Action pending against or, to the knowledge of such the Shareholder, threatened in writing against it no representation or any of its assets (including the Subject Shares beneficially owned by such Shareholder) before or by any Governmental Authority that would reasonably be expected to prevent or materially delay or impair the consummation by such Shareholder warranty of the transactions contemplated by Shareholder contained in this Agreement and the Transaction Agreement or otherwise materially impair such Shareholder’s ability to perform its obligations hereunder.
(g) No broker, finder, investment banker, financial advisor, or other Person is entitled to contains any brokerage, finder’s or other similar fee or commission, or the reimbursement of expenses, from Bidco, the Company 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 untrue statement of a Shareholdermaterial fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading.
Appears in 1 contract
Sources: Share Exchange Agreement
Representations and Warranties of the Shareholders. Each Shareholder of the Shareholders, on its own behalf and not on behalf of any other Shareholder, hereby severally (and, for greater certainty, not jointly with any other Shareholder) represents and warrants to the Purchaser as followsfollows and acknowledges that the Purchaser is relying on such representations and warranties in connection with the transactions 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 (i) is as and each is, or will be at the Time of Closing, a legal, valid and binding obligation of the date hereofShareholder, andenforceable against the Shareholder in accordance with its terms;
(b) if the Shareholder is not an individual, except as otherwise permitted 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 it is, or is to become, a party to pursuant to Section 1 hereof, shall be at all times during the term terms hereof and to perform its obligations hereunder and thereunder;
(c) the execution and delivery of this AgreementAgreement does not, and the indirect consummation of the Transaction will not violate any provision of any applicable law or direct 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 the Subject Shares that number of common shares of Mydecine set forth opposite the Shareholder’s name in Schedule “A” (such Shareholders’ name on Schedule A hereto (and AY Holdings is common share comprising part of 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 Purchased Shares), free and clear of any Liens (other than (1) Permitted all Liens, charges, mortgages, security interests, pledges, demands, claims and other encumbrances of any nature whatsoever;
(2e) Liens granted to one except for the Purchaser’s rights hereunder, no person has any agreement 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 option or any right or privilege capable of its Affiliates’ ability to enter into this Agreement or vote in accordance with Section 2becoming an agreement for the purchase of the common shares of Mydecine (namely the Purchased Shares), and (ii) does not, nor do any of its Affiliates, own of record held 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, Shareholder and none of such Subject Shares common shares of Mydecine are subject to any proxyvoting trust, shareholders agreement, voting trust agreement or other Contract, arrangement or restriction agreement with respect to the Transfer disposition or enjoyment of any rights of such common shares of Mydecine;
(f) no consent, approval, order or authorization of, or registration or declaration with, any applicable Governmental Authority with jurisdiction over the voting of Shareholder is required to be obtained by the Subject Shares (other than as set forth Shareholder 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 connection 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, validly existing and in good standing under the Laws of Canada or Netherlands, as applicable, and (ii) has the requisite corporate, company, partnership or other power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby and to comply with the terms hereof. The execution and delivery of this Agreement by each Shareholder, or the consummation by each the Shareholder of the transactions Transaction, except for those consents, orders, authorizations, declarations, registrations or approvals which are contemplated hereby 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 compliance 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 each Shareholder 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 the provisions hereof have been duly authorized by all requisite corporate, company, partnership respect to such transfer; and (ii) any registration or other action obligation 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.Purchaser;
(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 conflict with, or result in (i) any violation or breach of, or default (with or without notice or lapse of time, or both) under, 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 (2) Action applicable to a Shareholder or its properties or assets, or (3) any Contract or other legally binding instrument or obligation to which such Shareholder is a party or by which such Shareholder or its assets are bound, in the case of each of clauses (1) through (3), to the extent such violation, breach or other action would prevent, enjoin or materially delay the performance by such Shareholder of its obligations under this Agreement or the actions of any of its Affiliates that such Shareholder has agreed not authorized any person to procure. No Consent of, act as broker or registration, declaration, notice finder or filing with, in any Governmental Authority is necessary, under Applicable Law, for the consummation by the Shareholders of 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
(fj) With respect to each Shareholder, as of the date hereof, there is no Action pending against or, to the knowledge of such the Shareholder, threatened in writing against it no representation or any of its assets (including the Subject Shares beneficially owned by such Shareholder) before or by any Governmental Authority that would reasonably be expected to prevent or materially delay or impair the consummation by such Shareholder warranty of the transactions contemplated by Shareholder contained in this Agreement and the Transaction Agreement or otherwise materially impair such Shareholder’s ability to perform its obligations hereunder.
(g) No broker, finder, investment banker, financial advisor, or other Person is entitled to contains any brokerage, finder’s or other similar fee or commission, or the reimbursement of expenses, from Bidco, the Company 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 untrue statement of a Shareholdermaterial fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading.
Appears in 1 contract
Sources: Share Exchange Agreement
Representations and Warranties of the Shareholders. Each Shareholder of the Shareholders, on its own behalf and not on behalf of any other Shareholders, hereby severally (and, for greater certainty, not jointly with any other Shareholders) represents and warrants to the Purchaser as followsfollows and acknowledges that the Purchaser is relying on such representations and warranties in connection with the transactions 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 not an individual, the Shareholders 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 it is, or is to become, a party to pursuant to the terms hereof and to 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 as not an individual, result in a breach or violation of the date hereofarticles 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, andor (ii) violate any provision of any applicable law or regulation or any judicial or administrative order, except as otherwise permitted pursuant award, judgment or decree applicable to Section 1 hereof, shall be at all times during the term of this Agreement, Shareholders;
(d) the indirect Shareholder is (or direct will be) the registered and beneficial owner of that number of ▇▇▇▇▇ ▇▇▇▇▇▇, as the Subject Shares case may be, set forth opposite the Shareholder’s name in Schedule “A” (such Shareholders’ name on Schedule A hereto (and AY Holdings is common shares comprising part of 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 Purchased Shares), free and clear of all liens, charges, mortgages, security interests, pledges, demands, claims and other encumbrances of any Liens nature whatsoever;
(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 Sharese) other than as set forth opposite its name on Schedule A. Schedule A sets forth a true and complete list Disclosed, except for the Purchaser’s rights hereunder, no person has any agreement or option or any right or privilege capable of all becoming an agreement for the purchase of the Subject Purchased 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 (held 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, Shareholder and none of such Subject Shares common shares of Rosey are subject to any proxyvoting trust, shareholders agreement, voting trust agreement or other Contract, arrangement or restriction agreement with respect to the Transfer 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 voting of the Subject Shares (other than as set forth in Shareholder is required to be obtained by 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 connection 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, validly existing and in good standing under the Laws of Canada or Netherlands, as applicable, and (ii) has the requisite corporate, company, partnership or other power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby and to comply with the terms hereof. The execution and delivery of this Agreement or the consummation by each the Shareholder of the Transaction, except for those consents, orders, authorizations, declarations, registrations or approvals which are contemplated by this Agreement or those consents, orders, authorizations, declarations, registrations or approvals that, if not obtained, would not prevent or materially delay the consummation of the Transaction or otherwise prevent the Shareholder from performing its obligations under this Agreement;
(g) except for the Non-Resident Shareholders, the Shareholder is not a “non-resident” of Canada within the meaning of the Tax Act;
(h) unless the Shareholder is a U.S. Shareholder and has completed and delivered a U.S. Representation Letter for U.S. Shareholders in the form attached hereto as Schedule “C” (in which case the Shareholder makes the representations, warranties and covenants therein):
(i) the offer to purchase the Shareholder’s Purchased Shares was not made to the Shareholder when either the Shareholder or any beneficial purchaser for whom it is acting, if applicable, was in the United States;
(ii) the Shareholder is not a U.S. Person, is not in the United States and is not acquiring the applicable Payment Shares on behalf of, or for the account or benefit of, a U.S. Person or a person in the United States;
(iii) at the time this Agreement was executed and delivered by the Shareholder, the consummation by each Shareholder was outside the United States;
(iv) if the Shareholder is a corporation or entity, (A) a majority of the transactions contemplated hereby Shareholder’s voting equity is beneficially owned by persons resident outside the United States; and (B) the Shareholder’s affairs are wholly controlled and directed from outside of the United States;
(v) the Shareholder or any beneficial purchaser for whom it is acting, if applicable, has no intention to distribute either directly or indirectly any of the Payment Shares in the United States, except in compliance by each Shareholder with the provisions hereof U.S. Securities Act; and
(vi) the current structure of this transaction and all transactions and activities contemplated in this Agreement is not a scheme by the Shareholder to avoid the registration requirements of the U.S. Securities Act and any applicable state securities laws;
(i) Non-Resident Shareholders represent, warrant and/or acknowledge, as applicable, that:
(i) the Payment Shares issuable hereunder have not been duly authorized and will not be registered under the securities laws of any foreign jurisdiction and that the issuance of the Payment Shares pursuant to the terms of this Agreement is being made in reliance on applicable exemptions; and
(ii) the receipt of the Payment Shares by all requisite corporateNon-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, company, partnership or any other report with respect to such transfer; and (ii) any registration or other action obligation 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.Purchaser;
(dj) 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 conflict with, or result in (i) any violation or breach of, or default (with or without notice or lapse of time, or both) under, 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 (2) Action applicable to a Shareholder or its properties or assets, or (3) any Contract or other legally binding instrument or obligation to which such Shareholder is a party or by which such Shareholder or its assets are bound, in the case of each of clauses (1) through (3), to the extent such violation, breach or other action would prevent, enjoin or materially delay the performance by such Shareholder of its obligations under this Agreement or the actions of any of its Affiliates that such Shareholder has agreed not authorized any person to procure. No Consent of, act as broker or registration, declaration, notice finder or filing with, in any Governmental Authority is necessary, under Applicable Law, for the consummation by the Shareholders of other similar capacity in connection with the transactions contemplated by this Agreement., that in any manner may or will impose liability on Rosey or the Purchaser; and
(fk) With respect to each Shareholder, as of the date hereof, there is no Action pending against or, to the knowledge of such the Shareholder, threatened in writing against it no representation or any of its assets (including the Subject Shares beneficially owned by such Shareholder) before or by any Governmental Authority that would reasonably be expected to prevent or materially delay or impair the consummation by such Shareholder warranty of the transactions contemplated by Shareholder contained in this Agreement and the Transaction Agreement or otherwise materially impair such Shareholder’s ability to perform its obligations hereunder.
(g) No broker, finder, investment banker, financial advisor, or other Person is entitled to contains any brokerage, finder’s or other similar fee or commission, or the reimbursement of expenses, from Bidco, the Company 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 untrue statement of a Shareholdermaterial fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading.
Appears in 1 contract
Sources: Share Exchange Agreement
Representations and Warranties of the Shareholders. Each Shareholder of the Shareholders, on its own behalf and not on behalf of any other Shareholders, hereby severally (and, for greater certainty, not jointly with any other Shareholders) represents and warrants to the Purchaser as followsfollows and acknowledges that the Purchaser is relying on such representations and warranties in connection with the transactions 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 not an individual, the Shareholders 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 it is, or is to become, a party to pursuant to the terms hereof and to 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 as not an individual, result in a breach or violation of the date hereofarticles 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, andor (ii) violate any provision of any applicable law or regulation or any judicial or administrative order, except as otherwise permitted pursuant award, judgment or decree applicable to Section 1 hereof, shall be at all times during the term of this Agreement, Shareholders;
(d) the indirect or direct Shareholder is the registered and beneficial owner of that number of AlphaMind Shares, as the Subject Shares case may be, set forth opposite the Shareholder’s name in Schedule “A” (such Shareholders’ name on Schedule A hereto (and AY Holdings is common shares comprising part of 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 Purchased Shares), free and clear of all liens, charges, mortgages, security interests, pledges, demands, claims and other encumbrances of any Liens nature whatsoever;
(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 Sharese) other than as set forth opposite its name on Schedule A. Schedule A sets forth a true and complete list Disclosed, except for the Purchaser’s rights hereunder, no person has any agreement or option or any right or privilege capable of all becoming an agreement for the purchase of the Subject Purchased 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 (held 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, Shareholder and none of such Subject Shares common shares of AlphaMind are subject to any proxyvoting trust, shareholders agreement, voting trust agreement or other Contract, arrangement or restriction agreement with respect to the Transfer 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 voting of the Subject Shares (other than as set forth in Shareholder is required to be obtained by 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 connection 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, validly existing and in good standing under the Laws of Canada or Netherlands, as applicable, and (ii) has the requisite corporate, company, partnership or other power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby and to comply with the terms hereof. The execution and delivery of this Agreement or the consummation by each the Shareholder of the Transaction, except for those consents, orders, authorizations, declarations, registrations or approvals which are contemplated by this Agreement or those consents, orders, authorizations, declarations, registrations or approvals that, if not obtained, would not prevent or materially delay the consummation of the Transaction or otherwise prevent the Shareholder from performing its obligations under this Agreement;
(g) except for the Non-Resident Shareholders, the Shareholder is not a “non-resident” of Canada within the meaning of the Tax Act;
(h) unless the Shareholder is a U.S. Shareholder and has completed and delivered a U.S. Representation Letter for U.S. Shareholders in the form attached hereto as Schedule “C” (in which case the Shareholder makes the representations, warranties and covenants therein):
(i) the offer to 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 U.S. Person, is not in the United States and is not acquiring the applicable Payment Shares or Earn-Out Shares on behalf of, or for the account or benefit of, a U.S. Person or a person in the United States;
(iii) at the time this Agreement was executed and delivered by the Shareholder, the consummation by each Shareholder was outside the United States;
(iv) if the Shareholder is a corporation or entity, (A) a majority of the transactions contemplated hereby 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 the United States, except in compliance by each Shareholder with the provisions hereof U.S. Securities Act; and
(vi) the current structure of this transaction and all transactions and activities contemplated in this Agreement is not a scheme by the Shareholder to avoid the registration requirements of the U.S. Securities Act and any applicable state securities laws;
(i) Non-Resident Shareholders represent, warrant and/or acknowledge, as applicable, that:
(i) the Payment Shares and any Earn Out Shares issuable hereunder have not been duly authorized 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 of this Agreement is being made in reliance on applicable exemptions; and
(ii) the receipt of the Payment Shares and, if applicable, Earn Out Shares by all requisite corporateNon- 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, company, partnership or any other report with respect to such transfer; and (ii) any registration or other action obligation 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.Purchaser;
(dj) 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 conflict with, or result in (i) any violation or breach of, or default (with or without notice or lapse of time, or both) under, 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 (2) Action applicable to a Shareholder or its properties or assets, or (3) any Contract or other legally binding instrument or obligation to which such Shareholder is a party or by which such Shareholder or its assets are bound, in the case of each of clauses (1) through (3), to the extent such violation, breach or other action would prevent, enjoin or materially delay the performance by such Shareholder of its obligations under this Agreement or the actions of any of its Affiliates that such Shareholder has agreed not authorized any person to procure. No Consent of, act as broker or registration, declaration, notice finder or filing with, in any Governmental Authority is necessary, under Applicable Law, for the consummation by the Shareholders of other similar capacity in connection with the transactions contemplated by this Agreement., that in any manner may or will impose liability on AlphaMind or the Purchaser; and
(fk) With respect to each Shareholder, as of the date hereof, there is no Action pending against or, to the knowledge of such the Shareholder, threatened in writing against it no representation or any of its assets (including the Subject Shares beneficially owned by such Shareholder) before or by any Governmental Authority that would reasonably be expected to prevent or materially delay or impair the consummation by such Shareholder warranty of the transactions contemplated by Shareholder contained in this Agreement and the Transaction Agreement or otherwise materially impair such Shareholder’s ability to perform its obligations hereunder.
(g) No broker, finder, investment banker, financial advisor, or other Person is entitled to contains any brokerage, finder’s or other similar fee or commission, or the reimbursement of expenses, from Bidco, the Company 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 untrue statement of a Shareholdermaterial fact or omits to state a material fact necessary in order to make the statements contained herein or therein not misleading.
Appears in 1 contract
Sources: Share Exchange Agreement
Representations and Warranties of the Shareholders. Each Shareholder hereby represents and warrants to and in favour of the Company, the Parent and the Purchaser as followsfollows and acknowledges that the Company, the Parent and the Purchaser are each relying upon such representations and warranties in entering into this Agreement:
(a) Such the 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 registered owner of the Subject Common Shares set forth opposite being transferred by such Shareholders’ name on Schedule A hereto Shareholder to the Purchaser pursuant to this Agreement and has good title to such shares;
(b) such Common Shares are free and AY Holdings 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 indirect record owner through Acquisition is received, the registered holder which is Computershare DR Nominees Limited with respect Purchaser will acquire good title to 7,405,262 Subject such Common Shares and Cede & Co. with respect to 41,557,663 Subject Shares), free and clear of any Liens (other than (1) Permitted Lienshypothecs, (2) Liens granted liens, charges, encumbrances, mortgages and security interests and none of the Company, the Parent or the Purchaser or any successors thereto will be subject to one or more finance providers any adverse claim in connection with any financing facility to which respect of such Common Shares, and the Shareholder and/or any hereby irrevocably nominates, constitutes and appoints the President and Chief Executive Officer of its Affiliates is a partythe 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 (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 seal or restrict such Shareholder’s or any of its Affiliates’ ability to enter into this Agreement or vote in accordance with Section 2otherwise), swear to, acknowledge, deliver and (ii) does not, nor do any of its Affiliates, own of record or beneficially own file as and where required any Company Shares (instrument or any securities convertible into or exercisable or exchangeable or redeemable for any Company Shares) other than document 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 may be deemed necessary by the Company Organizational Documents, as applicable, AY Holdings has, as of to carry out fully the date hereof and will have at all times through the termination provisions of this Agreement in accordance with Section 6its terms and conditions;
(d) such Common Shares have not been sold, assigned or transferred nor has any agreement been entered into by the sole right Shareholder to Transfersell, assign or transfer any such Common Shares to vote any person other than the Purchaser;
(or cause to vote) and to direct (or cause to directe) the voting 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 share consideration the Shareholder is entitled to receive;
(f) the Shareholder acknowledges that all authority conferred or agreed to be conferred by the Shareholder herein may be exercised during any subsequent legal incapacity of the Subject Shares beneficially owned by Shareholder and shall survive the Shareholders as death, incapacity, bankruptcy or insolvency of the date hereofShareholder and all obligations of the undersigned herein shall be binding upon any heirs, personal representatives, successors and none assigns of the Shareholder;
(g) the Shareholder will not transfer or permit to be transferred any of the Common Shares being transferred by such Subject Shares are subject to any proxy, voting trust or other Contract, arrangement or restriction with respect Shareholder 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 Purchaser pursuant to 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.;
(ch) Such the Shareholder (i) is duly organizedhas full right, validly existing and in good standing under the Laws of Canada or Netherlands, as applicable, and (ii) has the requisite corporate, company, partnership or other power and authority to execute and deliver this Agreement, to perform its obligations hereunder Agreement and to consummate take all actions required pursuant hereto and, if the transactions contemplated hereby Shareholder is a corporation, it is duly incorporated and validly subsisting under the laws of its jurisdiction of incorporation and all necessary approvals by its directors, shareholders and others have been given to comply with the terms hereof. The authorize execution and delivery of this Agreement by each on behalf of the Shareholder;
(i) the entering into of this Agreement and the transactions completed hereby will not result in the violation of any of the terms and provisions of any law applicable to, or, if applicable, to the constating documents of, the consummation Shareholder;
(j) this Agreement has been duly executed and delivered by each the Shareholder of and, if the transactions contemplated hereby and the compliance by each Shareholder with the provisions hereof have is not an individual, has been duly authorized by all requisite corporate, company, partnership or other action on the part of each Shareholder, and no other corporatewill constitute a legal, 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 agreement of each the Shareholder and, assuming due authorization, execution and delivery by ▇▇▇▇▇ and the Company, is enforceable against each the Shareholder in accordance with its terms, subject to any Enforceability Exceptions.the qualification that enforcement thereof is subject to applicable bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally;
(ek) The execution and delivery of this Agreement, if the consummation Shareholder is a resident of the transactions contemplated hereby and compliance with the provisions hereof do not and will not conflict withUnited States, or result in (i) any violation or breach of, or default (with or without notice or lapse of time, or both) under, 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 (2) Action applicable to a Shareholder or its properties or assets, or (3) any Contract or other legally binding instrument or obligation to which such Shareholder is an accredited investor as defined under Rule 501 under the 1933 Securities Act;
(l) the Shareholder has received the PPM, which has been delivered concurrently with this Agreement; and
(m) if an individual, the Shareholder has attained the age of majority and is legally competent to execute this Agreement and to take all actions required pursuant thereto. The covenants, representations and warranties of the Shareholder herein contained shall survive the completion of the Acquisition. The power of attorney granted herein is irrevocable, is a party or by which such Shareholder or its assets are bound, in the case of each of clauses (1) through (3)power coupled with an interest and, to the extent such violationpermitted by law, breach or 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 action would preventlegal representatives, enjoin or materially delay and the performance by such successors and assigns of the Shareholder of its obligations under this Agreement or the actions of any of its Affiliates that such Shareholder has agreed to procure. No Consent of, or registration, declaration, notice or filing with, any Governmental Authority is necessary, under Applicable Law, for the consummation and may be exercised 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 or any of its assets (including the Subject Shares beneficially owned by such 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 by this Agreement Company for and the Transaction Agreement or otherwise materially impair such Shareholder’s ability to perform its obligations hereunder.
(g) 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 reimbursement of expenses, from Bidco, the Company 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 the Shareholder in executing any instrument with a Shareholdersingle signature as attorney.
Appears in 1 contract
Representations and Warranties of the Shareholders. Each Shareholder hereby Shareholder, severally and not jointly, represents and warrants to the Company and to each of the other Shareholders as follows:
(a) 6.2.1 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, validly existing and in good standing under the Laws laws of Canada or Netherlands, as applicablethe jurisdiction of its organization, and (ii) has the all requisite corporate, company, partnership corporate or other power and authority to execute enter into this Agreement and deliver perform each and every obligation required to be performed by it hereunder.
6.2.2 The execution, delivery and performance of this Agreement, to perform its obligations hereunder Agreement by such Shareholder and to consummate the consummation by such Shareholder of the transactions contemplated hereby under this Agreement have been duly and to comply validly authorized by all necessary corporate or other actions on the part of such Shareholder.
6.2.3 This Agreement has been duly executed and delivered by such Shareholder and, assuming the Agreement constitutes a valid and binding obligation of the other parties hereto, constitutes a valid and binding obligation of such Shareholder enforceable in accordance with the terms hereof. its terms, except as enforcement may be limited by bankruptcy, insolvency or other similar laws and by equitable principles.
6.2.4 The execution and delivery of this Agreement by each Shareholdersuch Shareholder does not, the consummation by each Shareholder of the transactions contemplated 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 performance of this Agreement, the consummation of the transactions contemplated hereby and compliance with the provisions hereof do not and Agreement by such Shareholder will not conflict with, or result in (i) require the consent, approval or authorization of any violation person, entity or breach ofpublic authority, or default (with or without notice or lapse of time, or both) under, 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 such Shareholder's statutes, articles of association or (2) Action applicable other governing documents or give rise to a Shareholder right to accelerate or its properties or assetsterminate any agreement, or (3) any Contract loan agreement, security instrument, deed of trust or other legally binding instrument or obligation to which such Shareholder is a party or by which such Shareholder or its assets are bound, in the case of each of clauses (1) through (3), to the extent such violation, breach regulation or other action would prevent, enjoin or materially delay the performance by such Shareholder provision of its obligations under this Agreement or the actions of any of its Affiliates that such Shareholder has agreed to 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 law or, to the knowledge of such Shareholder, threatened in writing against it any order, judgement or other direction of any court or tribunal of competent jurisdiction or (iii) give rise to any claim, Encumbrance or restriction on any of its the assets (including the Subject Shares beneficially owned by of such 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 by this Agreement and the Transaction Agreement or otherwise materially impair such Shareholder’s ability to perform its obligations hereunder.
(g) 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 reimbursement of expenses, from Bidco, the Company 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 a Shareholder.
Appears in 1 contract
Representations and Warranties of the Shareholders. Each Shareholder Shareholder, severally and not jointly, hereby represents and warrants to Acquiror as to itself as follows:
(a) Such Shareholder is the only record and beneficial owner (iwithin the meaning of Rule 13d-3 under the Exchange Act) is 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 organizational documents of the Company (including, for the purposes hereof, any agreements between or among shareholders of the Company). 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 Liensthe Owned Shares, (2) Liens granted to one such Shareholder does not own beneficially 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 hereofor any interest therein.
(b) Except with respect Such Shareholder (i) except as provided in this Agreement, has full voting power, full power of disposition and full power 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 issue instructions with respect to the Transfer or the voting of the Subject Shares (other than as matters set forth herein, in the Shareholders Agreement and Enhanced Cooperation Agreement (but which such Contracts shall not preventeach case, inhibit or restrict with respect to such Shareholder’s or any of its Affiliates’ compliance with this Agreement Covered Shares, (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 ii) has not entered into any Contract voting agreement or voting trust with respect to any of such Shareholder’s Covered Shares that is inconsistent with the terms 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 Agreement, and (iv) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would in any way restrictinterfere with, limit or interfere with the performance of the Shareholders’ prohibit or prevent it from satisfying, its obligations hereunderpursuant to this Agreement.
(c) Such Shareholder affirms that (i) if such Shareholder is duly organizeda natural person, validly existing and in good standing under the Laws of Canada he or Netherlands, as applicable, and (ii) she has all the requisite corporate, company, partnership or other power and authority and has taken all action necessary in order to execute and deliver this Agreement, to perform its his or her obligations hereunder and to consummate the transactions contemplated hereby hereby, and (ii) if such Shareholder is not a natural person, (A) it is a legal entity duly organized, validly existing and, to comply with the terms hereof. The execution and delivery of this Agreement by each Shareholderextent such concept is applicable, in good standing under the consummation by each Shareholder Laws of the transactions contemplated hereby jurisdiction of its organization and the compliance by each Shareholder with the provisions hereof have been duly authorized by (B) has all requisite corporate, company, partnership corporate or other power and authority and has taken all corporate or other action on the part of each Shareholdernecessary in order to execute, deliver and no other corporate, company, partnership or other organizational proceedings on the part of each Shareholder are necessary to authorize perform its obligations under this Agreement, Agreement and to consummate the transactions contemplated hereby or to comply with the provisions hereof.
(d) hereby. This Agreement has been duly and validly executed and delivered by each Shareholder, such Shareholder and constitutes a valid and binding obligation agreement of each such Shareholder and, assuming due authorization, execution and delivery by ▇▇▇▇▇ and the Company, is enforceable against each such Shareholder in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity.
(d) Other than the filings, notices and reports pursuant to, in compliance with or required to be made under 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 Enforceability ExceptionsGovernmental Authority in connection with the execution, delivery and performance by such Shareholder of this Agreement, or the consummation of the transactions contemplated hereby.
(e) The execution execution, delivery and delivery performance of this AgreementAgreement by such Shareholder do not, and the consummation of the transactions contemplated hereby or the Transactions and compliance with the provisions hereof do not and other transactions contemplated by the BCA will not conflict withnot, constitute or result in (i) any a breach or violation or breach of, or a default under, the limited liability company agreement or similar governing documents of such Shareholder (if such Shareholder is not a natural person), (ii) with or without notice or notice, lapse of time, time or both, a breach or violation of, a termination (or right of termination) of or a default under, the loss of any provision benefit under, the creation, modification or acceleration of any obligations under or the creation of a Lien on any of the organizational documents properties, rights or assets of a such 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 (2) Action applicable pursuant to a Shareholder or its properties or assets, or (3) any Contract or other legally binding instrument or obligation 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 this Section 5(e), under any applicable Law to which such Shareholder is a subject or (iii) any change in the rights or obligations of any party or by which under any Contract legally binding upon such Shareholder or its assets are boundShareholder, except, in the case of each clause (ii) or (iii) directly above, for any such breach, violation, termination, default, creation, acceleration or change that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay or impair such Shareholder’s ability to perform its obligations hereunder or to consummate the transactions contemplated hereby, the consummation of clauses the Transactions or the other transactions contemplated by the BCA.
(1f) through (3)As of the date of this Agreement, there is no action, proceeding or investigation pending against such Shareholder or, to the extent knowledge of such violationShareholder, breach threatened against such Shareholder that questions the beneficial or other action would preventrecord ownership of such Shareholder’s Owned Shares, enjoin the validity of this Agreement or materially delay the performance by such Shareholder of its obligations under this Agreement or the actions of any of its Affiliates that such Shareholder has agreed to 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.
(fg) With Such Shareholder understands and acknowledges that Acquiror is entering into the BCA 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) Such Shareholder acknowledges that none of Acquiror, the Company, their affiliates or their respective officers, directors, partners, members or employees makes any representation or warranty with respect to, and shall have no responsibility with respect to, the solvency, financial condition or business operations or financial statements of PubCo, except as set forth in the BCA and its filings with the SEC. Such Shareholder supports the BCA for its own account based on information currently available to such Shareholder (the “Current Information”). Based on such Current Information, the Shareholder has evaluated the merits and risks of the terms set forth in the BCA on its own and without reliance upon Acquiror (other than with respect to each Shareholderthe representations, warranties and covenants set forth in the BCA and the Acquiror’s filings with the SEC). Such Shareholder is an “accredited investor,” as that term is defined in Rule 501(a) or Regulation D under the Securities Act. Such Shareholder is not, and is not acting on behalf of, an employee benefit plan or “benefit plan investor” within the purview of ERISA, or otherwise using “plan assets” (within the date hereofmeaning of ERISA). Nothing in this sub-section 4(h) shall diminish the provisions of any other part of this Agreement or any applicable Law.
(i) No investment banker, there broker, finder or other intermediary is no Action pending against entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which Acquiror or the Company is or will be liable in connection with the transactions contemplated hereby based upon arrangements made by such Shareholder in his, her or its capacity as a Shareholder or, to the knowledge of such Shareholder, threatened in writing against it or any of its assets (including the Subject Shares beneficially owned by such 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 by this Agreement and the Transaction Agreement or otherwise materially impair such Shareholder’s ability to perform its obligations hereunder.
(g) 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 reimbursement of expenses, from Bidco, the Company 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 such Shareholder in his, her or its capacity as a Shareholder.
Appears in 1 contract
Sources: Business Combination Agreement (NORTHERN REVIVAL ACQUISITION Corp)
Representations and Warranties of the Shareholders. Each Shareholder of the Shareholders hereby represents and warrants to Ultimate, as to himself only, as follows:
(a) Such Except as set forth on Annex A, such Shareholder (i) is as the record and beneficial owner of the date hereof, and, except Shares shown as otherwise permitted pursuant to Section 1 hereof, shall be at all times during the term owned by him on Annex A of this Agreement, the indirect or direct beneficial owner of the Subject has good and marketable title to such Shares, has all necessary power and authority to enter into this Agreement, and such 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), are free and clear of any Liens (other than (1) Permitted Liensand all claims, (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 partyliens, (3) written restrictions on transfer under applicable securities Lawscharges, (4) this Agreement, (5) the Shareholders Agreement encumbrances 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) security interests other than as set forth opposite its name shown on Schedule Annex A. Schedule A sets forth a true and complete list of all None 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 him are subject to any proxy, voting trust or other Contract, agreement or arrangement or restriction with respect to the Transfer or the voting of the Subject Shares (such 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 pursuant to 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, validly existing and in good standing under the Laws of Canada or Netherlands, as applicable, and (ii) has the requisite corporate, company, partnership or other power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby and to comply with the terms hereof. The execution and delivery of this Agreement by each Shareholder, the consummation by each Shareholder of the transactions contemplated 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.
(db) This Agreement has been duly and validly executed and delivered by each Shareholderis the legal, constitutes a valid and binding obligation agreement of each Shareholder andsuch Shareholder, assuming due authorization, execution and delivery by ▇▇▇▇▇ and the Company, is enforceable against each Shareholder him in accordance with its terms, except as such validity, binding effect or enforceability may be limited by bankruptcy, insolvency, or other similar laws relating to creditors' rights generally and except that the availability of equitable remedies, including specific performance, is subject to the discretion of the court before which any Enforceability Exceptionsproceeding therefor may be brought.
(ec) The execution of this Agreement by such Shareholder does not, and the performance by him of his obligations hereunder will not, constitute a violation of, conflict with or result in a default under any contract, commitment, agreement, understanding, arrangement, statute or restriction of any kind to which he is a party or by which he or any of his property is bound or any judgment, decree or order applicable to him.
(d) Neither 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 conflict with, or result in (i) any violation or breach of, or default (with or without notice or lapse of time, or both) under, 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 (2) Action applicable to a Shareholder or its properties or assets, or (3) any Contract or other legally binding instrument or obligation to which such Shareholder is a party or by which such Shareholder or its assets are bound, in the case of each of clauses (1) through (3), to the extent such violation, breach or other action would prevent, enjoin or materially delay nor the performance by such Shareholder of its his obligations under this Agreement or the actions hereunder will violate any provision of any of its Affiliates that such Shareholder has agreed law applicable to procure. No Consent ofhim, or registration, declaration, notice or filing with, any Governmental Authority is necessary, under Applicable Law, except for the consummation by the Shareholders requirements, if any, of the transactions contemplated by this Agreementfederal and state securities laws.
(fe) With respect to each Shareholder, The Shares shown on said Annex A as of the date hereof, there is no Action pending against or, to the knowledge of such Shareholder, threatened in writing against it or any of its assets (including the Subject Shares beneficially owned by such ShareholderShareholder are the only securities of Audio King owned by him, beneficially or of record, other than options shown on Section 1.4(e) 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 by this Agreement Company Disclosure Letter (as defined in the Merger Agreement), and the Transaction Agreement he owns no other options to purchase or rights to subscribe for or otherwise materially impair such Shareholder’s ability to perform its obligations hereunderacquire any securities of Audio King.
(g) 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 reimbursement of expenses, from Bidco, the Company 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 a Shareholder.
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