Ownership of Subject Shares; Total Shares. Such Stockholder is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of all of such Stockholder’s Subject Shares and has good and marketable title to all of such Stockholder’s Subject Shares free and clear of any Liens, claims, proxies, voting trusts or agreements, options, rights, understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Encumbrances”), except for any such Encumbrance that may be imposed pursuant to (i) this Agreement, (ii) any applicable restrictions on transfer under the Securities Act or any state securities law, (iii) the Company Governing Documents and (iv) any applicable Company Equity Plan or agreements evidencing grants thereunder ((i) through (iv), collectively, “Permitted Encumbrances”). The Subject Shares listed on Schedule A opposite such Stockholder’s name constitute all of the shares of Company Common Stock, and any other securities of the Company beneficially owned by such Stockholder as of the date hereof.
Ownership of Subject Shares; Total Shares. As of the date hereof, such Stockholder is, and (except with respect to any Subject Shares Transferred in accordance with Section 4.1 hereof or accepted for payment pursuant to the Offer) at all times during the Agreement Period (as defined below) will be, the record and/or beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of all such Stockholder’s Subject Shares and has good and marketable title to all such Subject Shares free and clear of any Liens, except for (a) any such Lien that may be imposed pursuant to (i) this Agreement and (ii) any applicable restrictions on transfer under the Securities Act or any state securities law and (b) community property interests under applicable Law (collectively, “Permitted Liens”). Except to the extent of any Subject Shares acquired after the date hereof (which shall become Subject Shares upon that acquisition), the number of Subject Shares listed on Schedule A opposite such Stockholder’s name are the only equity interests in the Company beneficially owned or owned of record by such Stockholder as of the date hereof. Other than the Subject Shares, such Stockholder does not own any shares of Company Common Stock, Company Stock Options or any other interests in, options to purchase or rights to subscribe for or otherwise acquire any securities of the Company and has no interest in or voting rights with respect to any securities of the Company.
Ownership of Subject Shares; Total Shares. Such Stockholder is the record and/or beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of all such Stockholder’s Subject Shares and has good and marketable title to all such Subject Shares free and clear of any Encumbrances, proxies, voting trusts or agreements, options or rights, understandings or arrangements inconsistent with this Agreement or the transactions contemplated hereby, or any other encumbrances or restrictions whatsoever on title, transfer or exercise of any rights of a stockholder in respect of such Subject Shares (collectively, “Share Encumbrances”), except for any such Share Encumbrance that may be imposed pursuant to (i) this Agreement and (ii) any applicable restrictions on transfer under the Securities Act or any state securities law (collectively, “Permitted Share Encumbrances”). The shares of Company Common Stock listed on Schedule A opposite such Stockholder’s name constitute all of the shares of Company Common Stock owned by such Stockholder, beneficially or of record, as of the date hereof, and such Stockholder and its Affiliates do not own, beneficially or of record, any restricted stock, restricted stock units, options, warrants or other rights to acquire shares of Company Common Stock or any securities convertible into or exchangeable for shares of Company Common Stock.
Ownership of Subject Shares; Total Shares. The Stockholder is the record or beneficial owner of the Subject Shares and has good and marketable title to the Subject Shares free and clear of any Encumbrances (including any restriction on the right to vote or otherwise transfer the Subject Shares), except (a) as provided hereunder, (b) pursuant to any applicable restrictions on Transfer under the Securities Act, (c) subject to any risk of forfeiture with respect to any Purchaser Shares granted to the Stockholder under an employee benefit plan of Purchaser, (d) as provided in the governing documents of Purchaser and (e) as provided in the Investor Rights Agreement. The Subject Shares listed on Schedule A opposite the Stockholder’s name constitute all of the Purchaser Shares owned by the Stockholder as of the date hereof. Except pursuant to Purchaser’s governing documents, no person has any contractual or other right or obligation to purchase or otherwise acquire any of the Subject Shares. For purposes of this Agreement “Beneficial Ownership” shall be interpreted as defined in Rule 13d-3 under the Exchange Act; provided that for purposes of determining Beneficial Ownership, a person shall be deemed to be the Beneficial Owner of any securities that may be acquired by such person pursuant to any contract or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise (irrespective of whether the right to acquire such securities is exercisable immediately or only after the passage of time, including the passage of time in excess of 60 days, the satisfaction of any conditions, the occurrence of any event or any combination of the foregoing).
Ownership of Subject Shares; Total Shares. Such Stockholder is the record or beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of such Stockholder’s Subject Shares (including, for the avoidance of doubt, such shares of Company Common Stock obtained by such Stockholder pursuant to the conversion described in Section 1.1) and has good and marketable title to such Subject Shares free and clear of any Liens, except for (i) any such Liens arising hereunder, (ii) any applicable restrictions on transfer under the state or federal securities Laws, (iii) any restrictions on transfer under the Amended and Restated Investment Agreement dated February 20, 2004, none of which Liens described in this clause (iii) shall prohibit, prevent or otherwise delay the Stockholder’s performance of its obligations hereunder, and (iv) any rights, agreements, understandings or arrangements that represent solely a financial interest in cash received upon sale of the Subject Shares, none of which Liens described in this clause (iv) shall prohibit, prevent or otherwise delay the Stockholder’s performance of its obligations hereunder (collectively, “Permitted Liens”). The Subject Shares listed on Schedule A opposite such Stockholder’s name constitute all of the shares of Company Preferred Stock and Company Common Stock beneficially owned by such Stockholder as of the date hereof and neither such Stockholder nor any other investment fund affiliated with such Stockholder (other than any Affiliate of such Stockholder that is also a party hereto or Xxxxxxx Growth Fund) holds nor has any beneficial ownership in any other Equity Interest in the Company. Except pursuant to this Agreement, no Person has any contractual or other right or obligation to purchase or otherwise acquire any of such Stockholder’s Subject Shares.
Ownership of Subject Shares; Total Shares. As of the date hereof, the Company Stockholder is the record and/or beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of, and has good title to, the Subject Shares listed beside the Company Stockholder’s name on Schedule I attached hereto, free and clear of any liens, claims, proxies, voting trusts or agreements, options, rights, understandings or arrangements or any other encumbrances or restrictions whatsoever on title, transfer or exercise of any rights of a stockholder in respect of the Subject Shares (collectively, “Encumbrances”), except (a) those created by this Agreement, (b) pursuant to any applicable restrictions on transfer under state or Federal securities laws or (c) any Encumbrances that will not, either individually or in the aggregate, impair the ability of the Company Stockholder to perform fully its obligations hereunder on a timely basis. As of the date hereof, the Company Stockholder does not own, beneficially or otherwise, any Subject Shares or other securities of the Company other than as set forth in Schedule I hereto. Except pursuant to the Merger Agreement or this Agreement, no person has any contractual right or obligation to purchase or otherwise acquire any of the Company Stockholder’s Subject Shares.
Ownership of Subject Shares; Total Shares. As of the date hereof, such Company Stockholder is the record or beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of, and has good title to, the Subject Shares listed beside such Company Stockholder’s name on Schedule I attached hereto, free and clear of all claims, liens, encumbrances and security interests of any nature whatsoever (including any restriction on the right to vote or otherwise transfer such Subject Shares), except as provided hereunder or pursuant to any applicable restrictions on transfer under the Securities Act. As of the date hereof, such Company Stockholder does not own, beneficially or otherwise, any Shares, Company Options or other securities of the Company other than as set forth opposite such Company Stockholder’s name in Schedule I hereto.
Ownership of Subject Shares; Total Shares. The Stockholder is the record or beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of the Stockholder’s Subject Shares and has good and marketable title to the Subject Shares free and clear of any Encumbrance (including any restriction on the right to vote or otherwise transfer the Subject Shares), except as (a) provided hereunder, (b) pursuant to any applicable restrictions on transfer under the Securities Act, (c) subject to any risk of forfeiture with respect to any shares of Common Stock granted to the Stockholder under an agreement with or employee benefit plan of Nivalis and (d) with respect to Options, provided pursuant to the terms of the Option and any stock option plan under which such Option was granted. The Subject Shares constitute all of the shares of Common Stock and/or Options owned by the Stockholder as of the date hereof. Except pursuant to this Agreement, no Person has any contractual or other right or obligation to purchase or otherwise acquire any of the Stockholder’s Subject Shares.
Ownership of Subject Shares; Total Shares. Such Shareholder is the direct or indirect owner of all such Shareholder’s Subject Shares, has the right to vote and tender or cause the voting or tendering of such Subject Shares as contemplated hereby, and has, directly or indirectly, good and marketable title to all such Subject Shares free and clear of any Liens, proxies, voting trusts or agreements, options or rights, understandings or arrangements inconsistent with this Agreement or the transactions contemplated hereby, or any other encumbrances or restrictions whatsoever on title, transfer or exercise of any rights of a shareholder in respect of such Subject Shares (collectively, “Share Liens”), except for any such Share Lien that may be imposed pursuant to (i) this Agreement, (ii) any applicable restrictions on transfer under the 1933 Act or any state securities Law, (iii) collateral and rehypothecation arrangements with prime brokers in margin accounts; and (iv) any Share Liens that could not reasonably be expected, either individually or in the aggregate, to materially impair the ability of the Shareholder to perform fully its obligations hereunder with respect to the applicable Subject Shares on a timely basis (collectively, “Permitted Share Liens”). The Shares listed on Schedule A opposite such Shareholder’s name constitute all of the Shares owned by such Shareholder as of the date hereof.
Ownership of Subject Shares; Total Shares. The Stockholder is the record or beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of the Stockholder’s Subject Shares and has good and marketable title to the Subject Shares free and clear of any Encumbrance (including any restriction on the right to vote or otherwise transfer the Subject Shares), except as (i) provided hereunder, (ii) pursuant to any applicable restrictions on transfer under the Securities Act, and (iii) subject to any risk of forfeiture with respect to any shares of Common Stock granted to the Stockholder under an employee benefit plan of the Company. The Subject Shares listed on Schedule A opposite the Stockholder’s name constitute all of the shares of Common Stock of the Company owned by the Stockholder as of the date hereof. Except pursuant to this Agreement, no Person has any contractual or other right or obligation to purchase or otherwise acquire any of the Stockholder’s Subject Shares.
