Representations, Warranties and Covenants of the Securityholders. Each Securityholder hereby represents, warrants and covenants to Parent as follows: (a) Such Securityholder is the sole record and Beneficial Owner of the shares of the Company Capital Stock set forth on Exhibit A attached hereto (collectively, and together with any Company Capital Stock or other voting securities of the Company hereafter issued to or otherwise acquired or Beneficially Owned or owned of record by such Securityholder, including in the event of any stock split, stock dividend, merger, reorganization, recapitalization or other change in the capital structure of the Company affecting the Company Capital Stock, the “Subject Shares”). Such Securityholder owns the Subject Shares, free and clear of all Encumbrances or adverse claims except as set forth in this Agreement and pursuant to any applicable restrictions on transfer under the Securities Act. Such Securityholder does not own of record, and is not the Beneficial Owner of, any shares of capital stock of the Company, or any options, warrants or other rights to acquire any capital stock of the Company, other than the Subject Shares. Such Securityholder has the sole right and authority to vote and dispose of the Subject Shares, and except as contemplated by this Agreement or the Merger Agreement, such Securityholder is not a party to or bound by, and the Subject Shares are not subject to, any voting trust or other agreement, option, warrant, proxy, arrangement or restriction with respect to the voting or disposition of the Subject Shares. (b) Such Securityholder has all requisite power, capacity and authority necessary to execute and deliver this Agreement, to consummate the transactions contemplated hereby and to perform such Securityholder’s obligations hereunder. This Agreement has been duly authorized by all necessary corporate action, if applicable, has been duly executed and delivered by such Securityholder and constitutes a legal, valid and binding obligation of such Securityholder, enforceable against such Securityholder in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other applicable Laws relating to or affecting creditors’ rights generally or by equitable principles (regardless of whether enforcement is sought at law or in equity). Such Securityholder has received a copy of the Merger Agreement, has reviewed this Agreement, the Merger Agreement and the other agreements and documents contemplated hereby and thereby. Such Securityholder acknowledges that this Agreement provides for certain actions with respect to the Subject Shares in connection with the Merger and the other transactions contemplated by the Merger Agreement (the “Transactions”). Such Securityholder understands and acknowledges that its execution and delivery of this Agreement is a material inducement to Parent’s willingness to enter into, and to cause Merger Sub to enter into, the Merger Agreement. (c) The execution and delivery by such Securityholder of this Agreement does not, and the consummation of the transactions contemplated hereby and compliance with the terms hereof will not, (i) conflict with, breach, violate or result in a default under any Law applicable to such Securityholder or the Subject Shares, (ii) conflict with, breach, violate or result in a default under such Securityholder’s Organizational Documents if applicable or (iii) require any consent or approval under, violate, conflict with, result in any breach of or any loss of any benefit under, or constitute a change of control or default under, or result in termination or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of an Encumbrance upon any of the Subject Shares pursuant to, any Contract that is binding on such Securityholder or any of its properties or assets. Except as provided in the Merger Agreement, no consent, approval, permit, waiver, order or authorization of, action or non-action by or in respect of, exemption or review by, or registration, declaration or filing with, any Governmental Authority or other Person is required to be obtained or made by or with respect to such Securityholder in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby. (d) Such Securityholder is a sophisticated party with respect to its Subject Shares and has adequate information concerning the business and financial condition of the Company to make an informed decision regarding the transactions contemplated by this Agreement and has, independently and without reliance upon any of Parent, Merger Sub or the Company and based on such information as such Securityholder has deemed appropriate, made its own analysis and decision to enter into this Agreement. Such Securityholder acknowledges that Parent, Merger Sub and the Company have not made and are not making any representation or warranty, whether express or implied, of any kind or character to such Securityholder, its Affiliates or Representatives, other than as set forth in the Merger Agreement or herein. (e) Such Securityholder has sufficient knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of an investment in Parent Common Stock and protecting its own interests in connection with such investment, and has had a reasonable time and opportunity to consult with its financial, accounting, legal, tax and other advisors before executing and delivering this Agreement and agreeing to be bound by the terms of the Merger Agreement. (f) Such Securityholder (i) has received, reviewed and understands the terms of this Agreement, the Merger Agreement, including all schedules and exhibits thereto, (ii) has received (or has had access to) all information relating to Parent that it has requested and considers necessary to make an informed investment decision and (iii) has had an opportunity to ask questions of, and receive answers from, Parent or from persons duly acting on Parent’s behalf concerning its investment in Parent Common Stock. (g) Such Securityholder (i) understands the Parent Common Stock has not been and (except to the extent required by the Registration Rights Agreement) will not be registered under the Securities Act or the “Blue Sky” laws of any state, and is being issued to it pursuant to an exemption from the registration provisions of the Securities Act that depends upon, among other things, the bona fide nature of its investment intent as expressed herein, (ii) will acquire the shares of Parent Common Stock issued in the Merger for its own account for investment and not with a view to, or for resale in connection with, the distribution or sale thereof within the meaning of the Securities Act, (iii) has no present intent to transfer or otherwise distribute any portion of such shares (or any interest therein) and (iv) was not formed to acquire such shares. (h) Such Securityholder has read the definition of “accredited investor” set forth in Rule 501 of Regulation D under the Securities Act, and represents, warrants and agrees (i) it is an “accredited investor” thereunder pursuant to Rule 501(a)(3) of Regulation D; (ii) it shall submit either to a Verifying Person or Parent, no later than the time specified in Section 3.2(g) of the Merger Agreement, such information, and execute and deliver such documents, as such Verifying Person or Parent, as the case may be, shall may reasonable request in order to confirm such status or to ensure compliance with the Securities Act and the availability of any exemption thereunder and (iii) to the extent required by Rule 501 or Rule 506, agrees that it shall cause its Beneficial Owner to deliver or cause to be delivered to the Verifying Person or Parent any certifications or other information or documents requested by them to confirm its status as an Accredited Investor. (i) Such Securityholder understands any delivery of Parent Common Stock in non-U.S. jurisdictions may be subject to additional restrictions and limitations, and represents and warrants it is acquiring its shares of Parent Common Stock in compliance with all laws, rules, and regulations and other legal requirements applicable to it, including (without limitation) the legal requirements of the jurisdiction in which it is resident; (j) Such Securityholder as of the time its election to receive Parent Common Stock and its receipt of shares of Parent Common Stock, is not and will not be a resident of any province or territory of Canada; and (k) Such Securityholder agrees to promptly notice the Verifying Person or Parent, as the case may be, if any statement, certification, document or other information provided to them pursuant to paragraph (h) hereof is inaccurate or ceases to be true at any time between the date such information is provided and the delivery of the Parent Common Stock in accordance with the Merger Agreement.
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Sources: Support Agreement (Open Text Corp), Support Agreement (Open Text Corp)