Exceptions. Notwithstanding the foregoing, a Stockholder will not be required to comply with Section 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 11 contracts

Sources: Contribution and Exchange Agreement (Furneaux Carol), Contribution and Exchange Agreement (RiverRoad Capital Partners, LLC), Contribution and Exchange Agreement (Steinberg Michael)

Exceptions. ~~Notwithstanding~~ (i) The Board of Directors, in its sole and absolute discretion (without the ~~foregoing~~application to the fullest extent permitted by law of any fiduciary duty), may grant to any Person who makes a ~~Stockholder~~ request therefor (a “Requesting Person”) an exception to the Ownership Limit (or one or more elements thereof) with respect to the ownership of any series or class of Shares, subject to the following conditions and limitations: (A) (1) the Board of Directors shall have determined, in its sole and absolute discretion (without the application to the fullest extent permitted by law of any fiduciary duty), that the Requesting Person’s ownership of Shares in excess of the Ownership Limit pursuant to the exception requested hereunder (together with the ownership of Shares by all other Persons as permitted under this Article VIII, taking into account any previously granted exceptions pursuant hereto) would not cause a default under the terms of any contract to which the Company is a party or reasonably expects to become a party and (2) the Board of Directors shall have determined, in its sole and absolute discretion (without the application to the fullest extent permitted by law of any fiduciary duty), and in the case of each individual Director, in his business judgment, that the Requesting Person’s ownership of Shares in excess of the Ownership Limit pursuant to the exception requested hereunder (together with the ownership of Shares by all other Persons as permitted under this Article VIII, taking into account any previously granted exceptions pursuant hereto) is in the best interests of the Company; and (B) such Requesting Person provides to the Board of Directors, for the benefit of the Company, such representations and undertakings, if any, as the Board of Directors may, in its sole and absolute discretion (without the application to the fullest extent permitted by law of any fiduciary duty), determine to be necessary in order for it to make the determination that the conditions set forth in clause (A) above of this Section 8.2(f)(i) have been and/or will continue to be satisfied (including, without limitation, an agreement as to a reduced Ownership Limit or Excepted Holder Limit for such Requesting Person with respect to the Constructive Ownership of one or more other classes or series of Shares not subject to the exception), and such Requesting Person agrees that any violation of such representations and undertakings or any attempted violation thereof will result in the application of the remedies set forth in Section 8.2(b) with respect to Shares held in excess of the Ownership Limit or the Excepted Holder Limit (as may be ~~required~~ applicable) with respect to ~~comply~~ such Requesting Person (determined without regard to the exception granted such Requesting Person under this subparagraph (i)). If a member of the Board of Directors requests that the Board of Directors grant an exception pursuant to this subsection (f) with respect to such member, or with respect to any other Person if such member of the Board of Directors would be considered to be the Constructive Owner of Shares owned by such other Person, such member of the Board of Directors shall not participate in the decision of the Board of Directors as to whether to grant any such exception. (ii) In determining whether to grant any exemption pursuant to Section ~~3.2 above in connection~~ 8.2(f)(i), the Board of Directors may, but need not, consider, among other factors, (A) the general reputation and moral character of the Requesting Person, (B) whether ownership of Shares would be direct or through ownership attribution, (C) whether the Requesting Person’s ownership of Shares would interfere with the conduct of the Company’s business, (D) whether granting an exemption for the Requesting Person would adversely affect any ~~proposed Sale~~ of the Company’s existing contractual arrangements, and (E) whether the Requesting Person to whom the exemption would apply is attempting to change control of the Company or affect its policies in a way which the Board of Directors, in its sole and absolute discretion (without the ~~“Proposed Sale”~~application to the fullest extent permitted by law of any fiduciary duty), considers adverse to the best interest of the Company or the Shareholders. Nothing in this Section 8.2(f)(ii) ~~unless:~~shall be interpreted to mean that the Board of Directors may not act in its sole and absolute discretion (without the application to the fullest extent permitted by law of any fiduciary duty) in making any determination under Section 8.2(f)(i). (aiii) ~~any representations~~ An underwriter or initial purchaser that participates in a public offering or a private placement of Shares (or securities convertible into or exchangeable for Shares) may Constructively Own Shares (or securities convertible into or exchangeable for Shares) in excess of the Ownership Limit, but only to the extent necessary to facilitate such public offering or private placement as determined by the Board of Directors. (iv) The Board of Directors may reduce the Excepted Holder Limit for an Excepted Holder only: (1) with the written consent of such Excepted Holder or (2) pursuant to the terms and ~~warranties to be made by~~ conditions of the agreements and undertakings entered into with such ~~Stockholder~~ Excepted Holder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations establishment of the ~~Stockholder in connection with~~ Excepted Holder Limit for that Excepted Holder. (v) To the ~~transaction have been duly authorized~~fullest extent permitted by law, ~~if applicable, (iii) the documents to be entered into~~ any determination made by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery Board of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement Directors with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of ~~the Restated Certificate); (f~~Section 8.2(f) ~~liability shall~~ may be ~~limited~~ made without regard to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class any fiduciary or ~~series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by~~ other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose duties that the ~~Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate~~ Board of ~~Incorporation in effect immediately prior~~ Directors may have to the ~~Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares~~ Prohibited Owner or ~~Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes~~ any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC TransactionPerson. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 10 contracts

Sources: Limited Liability Company Agreement (Travelcenters of America LLC), Limited Liability Company Agreement (Travelcenters of America LLC), Limited Liability Company Agreement (Travelcenters of America LLC)

Exceptions. Notwithstanding ~~the foregoing~~anything contained in Section 8.1.1, ~~a Stockholder will~~ Owner shall not be required to ~~comply with~~ indemnify, protect, defend and hold harmless any Indemnitee pursuant to Section ~~3.2 above~~ 8.1.1 in ~~connection with~~ respect of any ~~proposed Sale~~ Expense of ~~the Company (the “Proposed Sale”) unless~~such Indemnitee: (a) For any ~~representations and warranties~~ Taxes or a loss of Tax benefit, whether or not Owner is required to ~~be made by such Stockholder in connection with the Proposed Sale are limited~~ indemnify therefor pursuant to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agencySection 8.3; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party Except to the ~~Proposed Sale)~~ extent attributable to acts or ~~any release of claims~~ events occurring prior thereto, acts or events (other than ~~a release in customary form~~ acts or events related to the performance by Owner of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims its obligations pursuant to the ~~definitive agreements~~ terms of the Operative Agreements) that occur after the Trust Indenture is required to be terminated in ~~connection~~ accordance with ~~such Proposed Sale~~Section 11.01 of the Trust Indenture; PROVIDED, that nothing in this clause (b) shall be deemed to exclude or limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or for damages from Owner for breach of Owner's covenants contained in the Operative Agreements or to release Owner from any of its obligations under the Operative Agreements that expressly provide for performance after termination of the Trust Indenture; (c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such ~~Stockholder and its Affiliates are not required to amend, extend~~ Indemnitee of any Equipment Note or ~~terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates~~interest therein, except ~~that~~ for out-of-pocket costs and expenses incurred as a result of any such Transfer pursuant to the ~~Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders~~ exercise of ~~the Company~~remedies under any Operative Agreement; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders);[Intentionally Omitted] (e) To the ~~liability for indemnification, if any,~~ extent attributable to the gross negligence or willful misconduct of such ~~Stockholder~~ Indemnitee or any related Indemnitee (as defined below) (other than gross negligence or willful misconduct imputed to such person by reason of its interest in the ~~Proposed Sale and for the inaccuracy of~~ Aircraft or any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated CertificateOperative Agreement); (f) ~~liability shall~~ [Intentionally Omitted] (g) To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any related Indemnitee contained in or made pursuant to any Operative Agreement or any Pass Through Agreement; (h) To the extent attributable to the failure by such Indemnitee or any related Indemnitee to perform or observe any agreement, covenant or condition on its part to be ~~limited~~ performed or observed in any Operative Agreement or any Pass Through Agreement; (i) To the extent attributable to the offer or sale by such ~~Stockholder’s~~ Indemnitee or any related Indemnitee of any interest in the Aircraft, the Equipment Notes, the Pass Through Certificates, or any similar interest, in violation of the Securities Act or other applicable ~~share~~ federal, state or foreign securities Laws (~~determined based on~~ other than any thereof caused by acts or omissions of Owner); (i) With respect to any Indemnitee (other than Mortgagee), to the ~~respective proceeds payable~~ extent attributable to ~~each Stockholder in connection with such Proposed Sale~~ the failure of the Mortgagee to distribute funds received and distributable by it in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stockTrust Indenture, (ii) ~~each holder~~ with respect to any Indemnitee (other than the Subordination Agent), to the extent attributable to the failure of ~~a series of Preferred Stock will receive~~ the ~~same amount of consideration per share of such series of Preferred Stock as is~~ Subordination Agent to distribute funds received and distributable by ~~other holders~~ it in ~~respect of their shares of such same series~~accordance with the Intercreditor Agreement, (iii) ~~each holder~~ with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of ~~Common Stock will receive the same amount of consideration per share of Common Stock as is~~ a Pass Through Trustee to distribute funds received and distributable by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) it in accordance with the ~~Company’s Certificate of Incorporation in effect immediately prior~~ Pass Through Trust Agreements, (iv) with respect to any Indemnitee (other than the Escrow Agent), to the ~~Proposed Sale; provided~~extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with any Escrow Agreement, ~~however, that, notwithstanding~~ (v) with respect to any Indemnitee (other than the ~~foregoing provisions of this Subsection 3.3(g~~Paying Agent), if to the ~~consideration~~ extent attributable to ~~be paid~~ the failure of the Paying Agent to distribute funds received and distributable by it in ~~exchange for~~ accordance with any Escrow Agreement, (vi) to the ~~Key Holder Shares~~ extent attributable to the failure of the Depositary to pay funds payable by it in accordance with any Deposit Agreement, (vii) with respect to Mortgagee, to the extent attributable to the negligence or ~~Investor Shares~~willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, ~~as applicable~~(viii) with respect to the Subordination Agent, ~~pursuant~~ to ~~this Subsection 3.3(g~~the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (ix) ~~includes any securities~~ with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and ~~due receipt thereof~~ distributable by ~~any Key Holder or Investor would require under applicable law~~ it in accordance with the Pass Through Trust Agreements, (x) with respect to the ~~registration~~ Escrow Agent, to the extent attributable to the negligence or ~~qualification~~ willful misconduct of ~~such securities~~ the Escrow Agent in the payment of funds received and payable by it in accordance with any Escrow Agreement, and (xi) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with any Escrow Agreement; (k) Other than during the continuation of an Event of Default, to the extent attributable to the authorization or giving or withholding of any ~~person~~ future amendments, supplements, waivers or consents with respect to any Operative Agreement or Pass Through Agreement other than such as have been requested by Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements); (l) To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Owner; (m) To the extent that it is an ordinary and usual operating or overhead expense; (n) [Intentionally Omitted] (o) For any Lien attributable to such Indemnitee or any related Indemnitee; (p) If another provision of an Operative Agreement or a ~~broker~~ Pass Through Agreement specifies the extent of Owner's responsibility or ~~dealer or agent~~ obligation with respect to such ~~securities; or (y)~~ Expense, to the ~~provision to any Key Holder or Investor of any information~~ extent arising from other than failure of Owner to comply with such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder specified responsibility or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicableobligation; ~~provided, that, clause (iv) above shall not apply to a SPAC Transaction.~~or (hq) ~~subject to clause (e) above, requiring~~ To the ~~same form of consideration to be available to the holders of any single class~~ extent incurred by or ~~series of capital stock, if any holders of any capital stock of the Company are given~~ asserted against an ~~option as to the form and amount of consideration to be received~~ Indemnitee as a result of any "prohibited transaction", within the ~~Proposed Sale, all holders~~ meaning of ~~such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer~~ Section 406 of ERISA or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed SaleSection 4975(c)(1).

Appears in 8 contracts

Sources: Participation Agreement (Continental Airlines Inc /De/), Participation Agreement (Continental Airlines Inc /De/), Participation Agreement (Continental Airlines Inc /De/)

Exceptions. ~~Notwithstanding~~ Any other provision herein to the ~~foregoing~~contrary notwithstanding, ~~a Stockholder will~~ the Company shall not be ~~required~~ obligated pursuant to ~~comply with Section 3.2 above in connection with any proposed Sale~~ the terms of ~~the Company (the “Proposed Sale”) unless~~this Agreement: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and To indemnify or advance Expenses to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement Indemnitee with respect to ~~such Proposed Sale that certain employees~~ Proceedings or ~~officers of the Company be bound by a non-compete~~ claims initiated or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made brought voluntarily by the ~~Company in connection with such Proposed Sale, is several~~ Indemnitee and not ~~joint with any other Person (except to the extent that funds may be paid out~~ by way of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Saledefense, except with respect to ~~claims related~~ Proceedings brought to ~~fraud~~ establish or enforce a right to indemnification under this Agreement or any other statute or law or otherwise as required under Section 145, but such indemnification or advancement of Expenses may be provided by ~~such Stockholder,~~ the ~~liability for which need not~~ Company in specific cases if the Board of Directors finds it to be ~~limited as to such Stockholder;~~appropriate; or (gb) ~~upon~~ To indemnify the ~~consummation of~~ Indemnitee for any Expenses incurred by the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent Indemnitee with respect to ~~such securities;~~ any Proceeding instituted by the Indemnitee to enforce or ~~(y) the provision to any Key Holder or Investor~~ interpret this Agreement, if a court of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender competent jurisdiction determines that each of the ~~Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold~~ material assertions made by the Indemnitee in such ~~Key Holder or Investor, an amount in cash equal to the fair value (as determined~~ proceeding was not made in good faith or was frivolous; or (c) To indemnify the Indemnitee under this Agreement for any amounts paid in settlement of a Proceeding unless the Company consents to such settlement, which consent shall not be unreasonably withheld; or (d) on account of any Proceeding in which judgment is rendered against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the ~~Board~~Company pursuant to the provisions of Section 16(b) of the ~~securities which such Key Holder or Investor would otherwise receive as~~ Securities Exchange Act of ~~the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares~~1934, as ~~applicable~~amended; ~~provided, that, clause (iv) above shall not apply to a SPAC Transaction.~~or ~~(h) subject to clause~~ (e) ~~above~~on account of Indemnitee's conduct which is finally adjudged by a court to have been knowingly fraudulent, ~~requiring the same form of consideration to be available to the holders of any single class~~ deliberately dishonest or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same optionwillful misconduct; ~~and~~or (if) if a final adjudication by a court having jurisdiction in the matter shall determine that such ~~Stockholder~~ indemnification is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale)lawful.

Appears in 8 contracts

Sources: Indemnification Agreement (Ascential Software Corp), Indemnification Agreement (Ascential Software Corp), Indemnification Agreement (Informix Corp)

Exceptions. Notwithstanding the foregoing, ~~a Stockholder will not be required~~ the obligations of Shareholder pursuant to ~~comply with Section 3.2~~ Sections 3 and 4 above ~~in connection with any proposed Sale of~~ are subject to the ~~Company (the “Proposed Sale”) unless~~following: (a) The Board of Directors of the Company or Holding Company may terminate or waive any ~~representations and warranties~~ provision in any Related Agreement that restricts any party to ~~be made~~ any Related Agreement from taking any action prohibited by ~~such Stockholder in connection~~ Section 3 or 4 of this Agreement prior to termination of the Lock-up Period or the Installment Re-Sale Restricted Period, provided the Board of Directors of the Company provides Shareholder with the ~~Proposed Sale are limited~~ same termination or waiver at the same time and to ~~representations~~ the same extent. Except as provided herein, the Company or Holding Company shall not terminate or waive the resale restrictions provisions of any Related Agreement equivalent to Sections 3 and ~~warranties related to authority, ownership and~~ 4of this Agreement without the ~~ability to convey title to such Shares, including but not limited to representations and warranties that~~ written consent of Shareholder until the earlier of: (i) ~~the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear~~ sale by Shareholder of all ~~liens and encumbrances,~~ Covered Securities; or (ii) ~~the obligations~~ expiration of the ~~Stockholder in connection with~~ Installment Re-Sale Restriction Period. (b) Notwithstanding the ~~transaction have been duly authorized~~foregoing, Shareholder may transfer Covered Securities of the Company or Holding Company to a Permitted Transferee: (i) if ~~applicable~~the transfer is made by Shareholder without payment or other consideration by the Permitted Transferee; (ii) if a transfer is otherwise permitted under applicable laws, rules, regulations and other agreements and contracts; and (iii) the ~~documents to be entered into by~~ Permitted Transferee first signs an agreement that includes substantially the ~~Stockholder have been duly executed by the Stockholder~~ terms set forth herein and ~~delivered~~ that is otherwise reasonably acceptable to the ~~acquirer and~~ Company or Holding Company. A "Permitted Transferee" means: (i) if Shareholder is an individual, to any family member or to any trust where the sole beneficiaries are ~~enforceable against the Stockholder~~ Shareholder and/or family members or to any entity in ~~accordance with their respective terms and~~ which Shareholder is a General Manager or General Partner; (ii) if Shareholder is a corporation, to any direct or indirect parent or subsidiary or any shareholder of Shareholder; (iii) if Shareholder is a partnership, to any partner of Shareholder; (iv) ~~neither the execution~~ if Shareholder is a limited liability company, to any member of Shareholder; and ~~delivery~~ (v) if Shareholder is a trust, to any beneficiary of ~~documents to be entered into~~ such trust. Except for transfers in ~~connection~~ compliance with ~~the transaction~~this Agreement, ~~nor the performance of the Stockholder’s obligations thereunder, will cause a breach~~ any transfer or ~~violation of the terms~~ attempted transfer of any ~~agreement~~Covered Securities not in compliance with this Agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, null and ~~(iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock~~ void and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transactionwithout effect. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 7 contracts

Sources: Common Stock Subscription Agreement (Next Fuel, Inc.), Lock Up and Installment Re Sales Restriction Agreement (Next Fuel, Inc.), Lock Up and Installment Re Sales Restriction Agreement (Next Fuel, Inc.)

Exceptions. Notwithstanding ~~the foregoing~~anything contained in Section 8.1.1, ~~a Stockholder will~~ Owner shall not be required to ~~comply with~~ indemnify, protect, defend and hold harmless any Indemnitee pursuant to Section ~~3.2 above~~ 8.1.1 in ~~connection with~~ respect of any ~~proposed Sale~~ Expense of ~~the Company (the “Proposed Sale”) unless~~such Indemnitee: (a) For any ~~representations and warranties~~ Taxes or a loss of Tax benefit, whether or not Owner is required to ~~be made by such Stockholder in connection with the Proposed Sale are limited~~ indemnify therefor pursuant to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agencySection 8.3; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party Except to the ~~Proposed Sale)~~ extent attributable to acts or ~~any release of claims~~ events occurring prior thereto, acts or events (other than ~~a release in customary form~~ acts or events related to the performance by Owner of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims its obligations pursuant to the ~~definitive agreements~~ terms of the Operative Agreements) that occur after the Trust Indenture is required to be terminated in ~~connection~~ accordance with ~~such Proposed Sale~~Section 11.01 of the Trust Indenture; provided, that nothing in this clause (b) shall be deemed to exclude or limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or for damages from Owner for breach of Owner's covenants contained in the Operative Agreements or to release Owner from any of its obligations under the Operative Agreements that expressly provide for performance after termination of the Trust Indenture; (c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such ~~Stockholder and its Affiliates are not required to amend, extend~~ Indemnitee of any Equipment Note or ~~terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates~~interest therein, except ~~that~~ for out-of-pocket costs and expenses incurred as a result of any such Transfer pursuant to the ~~Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders~~ exercise of ~~the Company~~remedies under any Operative Agreement; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders);[Intentionally Omitted] (e) To the ~~liability for indemnification, if any,~~ extent attributable to the gross negligence or willful misconduct of such ~~Stockholder~~ Indemnitee or any related Indemnitee (as defined below) (other than gross negligence or willful misconduct imputed to such person by reason of its interest in the ~~Proposed Sale and for the inaccuracy of~~ Aircraft or any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated CertificateOperative Agreement); (f) ~~liability shall~~ [Intentionally Omitted] (g) To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any related Indemnitee contained in or made pursuant to any Operative Agreement or any Pass Through Agreement; (h) To the extent attributable to the failure by such Indemnitee or any related Indemnitee to perform or observe any agreement, covenant or condition on its part to be ~~limited~~ performed or observed in any Operative Agreement or any Pass Through Agreement; (i) To the extent attributable to the offer or sale by such ~~Stockholder’s~~ Indemnitee or any related Indemnitee of any interest in the Aircraft, the Equipment Notes, the Pass Through Certificates, or any similar interest, in violation of the Securities Act or other applicable ~~share~~ federal, state or foreign securities Laws (~~determined based on~~ other than any thereof caused by acts or omissions of Owner); (i) With respect to any Indemnitee (other than Mortgagee), to the ~~respective proceeds payable~~ extent attributable to ~~each Stockholder in connection with such Proposed Sale~~ the failure of the Mortgagee to distribute funds received and distributable by it in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stockTrust Indenture, (ii) ~~each holder~~ with respect to any Indemnitee (other than the Subordination Agent), to the extent attributable to the failure of ~~a series of Preferred Stock will receive~~ the ~~same amount of consideration per share of such series of Preferred Stock as is~~ Subordination Agent to distribute funds received and distributable by ~~other holders~~ it in ~~respect of their shares of such same series~~accordance with the Intercreditor Agreement, (iii) ~~each holder~~ with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of ~~Common Stock will receive the same amount of consideration per share of Common Stock as is~~ a Pass Through Trustee to distribute funds received and distributable by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) it in accordance with the ~~Company’s Certificate of Incorporation in effect immediately prior~~ Pass Through Trust Agreements, (iv) with respect to any Indemnitee (other than the Escrow Agent), to the ~~Proposed Sale; provided~~extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with any Escrow Agreement, ~~however, that, notwithstanding~~ (v) with respect to any Indemnitee (other than the ~~foregoing provisions of this Subsection 3.3(g~~Paying Agent), if to the ~~consideration~~ extent attributable to ~~be paid~~ the failure of the Paying Agent to distribute funds received and distributable by it in ~~exchange for~~ accordance with any Escrow Agreement, (vi) to the ~~Key Holder Shares~~ extent attributable to the failure of the Depositary to pay funds payable by it in accordance with any Deposit Agreement, (vii) with respect to Mortgagee, to the extent attributable to the negligence or ~~Investor Shares~~willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, ~~as applicable~~(viii) with respect to the Subordination Agent, ~~pursuant~~ to ~~this Subsection 3.3(g~~the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (ix) ~~includes any securities~~ with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and ~~due receipt thereof~~ distributable by ~~any Key Holder or Investor would require under applicable law~~ it in accordance with the Pass Through Trust Agreements, (x) with respect to the ~~registration~~ Escrow Agent, to the extent attributable to the negligence or ~~qualification~~ willful misconduct of ~~such securities~~ the Escrow Agent in the payment of funds received and payable by it in accordance with any Escrow Agreement and (xi) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with any Escrow Agreement; (k) Other than during the continuation of an Event of Default, to the extent attributable to the authorization or giving or withholding of any ~~person~~ future amendments, supplements, waivers or consents with respect to any Operative Agreement or Pass Through Agreement other than such as have been requested by Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements); (l) To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Owner; (m) To the extent that it is an ordinary and usual operating or overhead expense; (n) [Intentionally Omitted] (o) For any Lien attributable to such Indemnitee or any related Indemnitee; (p) If another provision of an Operative Agreement or a ~~broker~~ Pass Through Agreement specifies the extent of Owner's responsibility or ~~dealer or agent~~ obligation with respect to such ~~securities; or (y)~~ Expense, to the ~~provision to any Key Holder or Investor of any information~~ extent arising from other than failure of Owner to comply with such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder specified responsibility or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicableobligation; ~~provided, that, clause (iv) above shall not apply to a SPAC Transaction.~~or (hq) ~~subject to clause (e) above, requiring~~ To the ~~same form of consideration to be available to the holders of any single class~~ extent incurred by or ~~series of capital stock, if any holders of any capital stock of the Company are given~~ asserted against an ~~option as to the form and amount of consideration to be received~~ Indemnitee as a result of any "prohibited transaction", within the ~~Proposed Sale~~meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code. For purposes of this Section 8.1, ~~all holders~~ a Person shall be considered a "related" Indemnitee with respect to an Indemnitee if such Person is an Affiliate or employer of such ~~capital stock will be given the same option; and (i)~~ Indemnitee, a director, officer, employee, agent, or servant of such ~~Stockholder is not required to agree (unless~~ Indemnitee or any such ~~Stockholder is~~ Affiliate or a ~~Company officer~~ successor or ~~employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers~~ permitted assignee of any ~~party to~~ of the ~~Proposed Sale)~~foregoing.

Appears in 6 contracts

Sources: Note Purchase Agreement (United Airlines, Inc.), Note Purchase Agreement (United Airlines, Inc.), Note Purchase Agreement (United Airlines, Inc.)

Exceptions. Notwithstanding ~~the foregoing~~anything in Section 9.1(a), ~~a Stockholder will~~ Borrower shall not be required to ~~comply with~~ indemnify, protect, defend or hold harmless any Indemnitee pursuant to Section ~~3.2 above~~ 9.1(a) against any Expense of such Indemnitee: (1) for any Taxes or a loss of Tax Benefit, whether or not Borrower is required to indemnify therefor pursuant to Section 9.3; (2) to the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such Indemnitee of any Equipment Note, Commitment or interest therein, except for reasonable out-of-pocket costs and expenses incurred as a result of any such Transfer requested in writing by Borrower or made or effected as required by or pursuant to the terms of the Operative Agreements or made or effected in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and or pursuant to the ~~Shares such Stockholder purports to hold, free and clear~~ exercise of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of remedies under any ~~agreement, law or judgment, order or decree of any court or governmental agency~~Operative Agreement; (b3) to the extent attributable to the gross negligence or willful misconduct of such ~~Stockholder shall have no obligation~~ Indemnitee or any “Related Indemnitee” (as defined at the end of this Section 9.1(b)) (other than gross negligence or willful misconduct imputed to ~~execute~~ such Person solely by reason of its interest in the Aircraft or ~~otherwise agree~~ being party to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed SaleOperative Agreement); (c4) ~~such Stockholder and its Affiliates are not required~~ to ~~amend, extend~~ the extent attributable to the incorrectness or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy breach of any representation or warranty of such Indemnitee or any Related Indemnitee, contained in or made pursuant to any Operative Agreement; (5) to the extent attributable to the failure by such Indemnitee or any Related Indemnitee to perform or observe any express agreement, covenant, or condition on its part to be performed or observed in any Operative Agreement; (6) to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Equipment Notes or its Commitment in violation of the registration requirements of the Securities Act or in violation of the registration requirements of any applicable state or foreign securities Laws (other ~~Person~~ than any thereof caused by acts or omissions of Borrower); (7) to the extent attributable to Security Agent’s failure to distribute funds received and distributable by it in ~~connection~~ accordance with the ~~Proposed Sale~~Operative Agreements; (8) other than during the existence of an Event of Default, to the extent attributable to the authorization or giving or withholding of any future amendments, supplements, waivers, or consents with respect to any Operative Agreement, other than any requested by Borrower or required by or made pursuant to the ~~Company~~ terms of the Operative Agreements (~~except~~ unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements); (9) to the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Borrower; (10) to the extent that ~~funds may be paid out of~~ it is an ~~escrow established to cover breach of representations, warranties~~ ordinary and ~~covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders)~~usual operating or overhead expense; (e11) ~~the liability~~ for ~~indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of~~ any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid Lien attributable to such ~~Stockholder in connection with such Proposed Sale (in accordance with~~ Indemnitee or any Related Indemnitee that Borrower is not obligated to discharge under the ~~provisions of the Restated Certificate)~~Operative Agreements; (f12) ~~liability shall be limited to such Stockholder~~if another provision of an Operative Agreement specifies the extent of Borrower’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class responsibility or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent obligation with respect to such ~~securities; or (y)~~ Expense, to the ~~provision to any Key Holder or Investor of any information~~ extent arising from a cause other than Borrower’s failure to comply with such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder specified responsibility or ~~Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal~~ obligation; or (13) to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given extent imposed on an ~~option as to the form and amount of consideration to be received~~ Indemnitee as a result of any non-exempt “prohibited transaction” under 406(a) of ERISA or Section 4975(c)(1) of the ~~Proposed Sale~~Code caused by such Indemnitee. For purposes of this Section 9.1, ~~all holders~~ a Person shall be considered a “Related Indemnitee” of an Indemnitee if that Person is an Affiliate or employer of such ~~capital stock will be given the same option; and (i)~~ Indemnitee, a director, officer, employee, agent, or servant of such ~~Stockholder is not required to agree (unless~~ Indemnitee or any such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale)Affiliate.

Appears in 6 contracts

Sources: Loan Agreement (Airtran Holdings Inc), Loan Agreement (Airtran Holdings Inc), Loan Agreement (Airtran Holdings Inc)

Exceptions. Notwithstanding ~~the foregoing~~anything contained in Section 8.1.1, ~~a Stockholder will~~ Owner shall not be required to ~~comply with~~ indemnify, protect, defend and hold harmless any Indemnitee pursuant to Section ~~3.2 above~~ 8.1.1 in ~~connection with~~ respect of any ~~proposed Sale~~ Expense of ~~the Company (the “Proposed Sale”) unless~~such Indemnitee: (a) For any ~~representations and warranties~~ Taxes or a loss of Tax benefit, whether or not Owner is required to ~~be made by such Stockholder in connection with the Proposed Sale are limited~~ indemnify therefor pursuant to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agencySection 8.3; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party Except to the ~~Proposed Sale)~~ extent attributable to acts or ~~any release of claims~~ events occurring prior thereto, acts or events (other than ~~a release in customary form~~ acts or events related to the performance by Owner of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims its obligations pursuant to the ~~definitive agreements~~ terms of the Operative Agreements) that occur after the Trust Indenture is required to be terminated in ~~connection~~ accordance with ~~such Proposed Sale~~Section 11.01 of the Trust Indenture; provided, that nothing in this clause (b) shall be deemed to exclude or limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or for damages from Owner for breach of Owner’s covenants contained in the Operative Agreements or to release Owner from any of its obligations under the Operative Agreements that expressly provide for performance after termination of the Trust Indenture; (c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such ~~Stockholder and its Affiliates are not required to amend, extend~~ Indemnitee of any Equipment Note or ~~terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates~~interest therein, except ~~that~~ for out-of-pocket costs and expenses incurred as a result of any such Transfer pursuant to the ~~Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders~~ exercise of ~~the Company~~remedies under any Operative Agreement; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders);[Intentionally Omitted] (e) To the ~~liability for indemnification, if any,~~ extent attributable to the gross negligence or willful misconduct of such ~~Stockholder~~ Indemnitee or any related Indemnitee (as defined below) (other than gross negligence or willful misconduct imputed to such person by reason of its interest in the ~~Proposed Sale and for the inaccuracy of~~ Aircraft or any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated CertificateOperative Agreement); (f) ~~liability shall~~ [Intentionally Omitted] (g) To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any related Indemnitee contained in or made pursuant to any Operative Agreement or any Pass Through Agreement; (h) To the extent attributable to the failure by such Indemnitee or any related Indemnitee to perform or observe any agreement, covenant or condition on its part to be ~~limited~~ performed or observed in any Operative Agreement or any Pass Through Agreement; (i) To the extent attributable to the offer or sale by such ~~Stockholder’s~~ Indemnitee or any related Indemnitee of any interest in the Aircraft, the Equipment Notes, the Pass Through Certificates, or any similar interest, in violation of the Securities Act or other applicable ~~share~~ federal, state or foreign securities Laws (~~determined based on~~ other than any thereof caused by acts or omissions of Owner); (i) With respect to any Indemnitee (other than Mortgagee), to the ~~respective proceeds payable~~ extent attributable to ~~each Stockholder in connection with such Proposed Sale~~ the failure of the Mortgagee to distribute funds received and distributable by it in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stockTrust Indenture, (ii) ~~each holder~~ with respect to any Indemnitee (other than the Subordination Agent), to the extent attributable to the failure of ~~a series of Preferred Stock will receive~~ the ~~same amount of consideration per share of such series of Preferred Stock as is~~ Subordination Agent to distribute funds received and distributable by ~~other holders~~ it in ~~respect of their shares of such same series~~accordance with the Intercreditor Agreement, (iii) ~~each holder~~ with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of ~~Common Stock will receive the same amount of consideration per share of Common Stock as is~~ a Pass Through Trustee to distribute funds received and distributable by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) it in accordance with the ~~Company’s Certificate of Incorporation in effect immediately prior~~ Pass Through Trust Agreements, (iv) with respect to any Indemnitee (other than the Escrow Agent), to the ~~Proposed Sale; provided~~extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with any Escrow Agreement, ~~however, that, notwithstanding~~ (v) with respect to any Indemnitee (other than the ~~foregoing provisions of this Subsection 3.3(g~~Paying Agent), if to the ~~consideration~~ extent attributable to ~~be paid~~ the failure of the Paying Agent to distribute funds received and distributable by it in ~~exchange for~~ accordance with any Escrow Agreement, (vi) to the ~~Key Holder Shares~~ extent attributable to the failure of the Depositary to pay funds payable by it in accordance with any Deposit Agreement, (vii) with respect to Mortgagee, to the extent attributable to the negligence or ~~Investor Shares~~willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, ~~as applicable~~(viii) with respect to the Subordination Agent, ~~pursuant~~ to ~~this Subsection 3.3(g~~the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (ix) ~~includes any securities~~ with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and ~~due receipt thereof~~ distributable by ~~any Key Holder or Investor would require under applicable law~~ it in accordance with the Pass Through Trust Agreements, (x) with respect to the ~~registration~~ Escrow Agent, to the extent attributable to the negligence or ~~qualification~~ willful misconduct of ~~such securities~~ the Escrow Agent in the payment of funds received and payable by it in accordance with any Escrow Agreement and (xi) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with any Escrow Agreement; (k) Other than during the continuation of an Event of Default, to the extent attributable to the authorization or giving or withholding of any ~~person~~ future amendments, supplements, waivers or consents with respect to any Operative Agreement or Pass Through Agreement other than such as have been requested by Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements); (l) To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Owner; (m) To the extent that it is an ordinary and usual operating or overhead expense; (n) [Intentionally Omitted] (o) For any Lien attributable to such Indemnitee or any related Indemnitee; (p) If another provision of an Operative Agreement or a ~~broker~~ Pass Through Agreement specifies the extent of Owner’s responsibility or ~~dealer or agent~~ obligation with respect to such ~~securities; or (y)~~ Expense, to the ~~provision to any Key Holder or Investor of any information~~ extent arising from other than failure of Owner to comply with such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder specified responsibility or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicableobligation; ~~provided, that, clause (iv) above shall not apply to a SPAC Transaction.~~or (hq) ~~subject to clause (e) above, requiring~~ To the ~~same form of consideration to be available to the holders of any single class~~ extent incurred by or ~~series of capital stock, if any holders of any capital stock of the Company are given~~ asserted against an ~~option as to the form and amount of consideration to be received~~ Indemnitee as a result of any “prohibited transaction”, within the ~~Proposed Sale~~meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code. For purposes of this Section 8.1, ~~all holders~~ a Person shall be considered a “related” Indemnitee with respect to an Indemnitee if such Person is an Affiliate or employer of such ~~capital stock will be given the same option; and (i)~~ Indemnitee, a director, officer, employee, agent, or servant of such ~~Stockholder is not required to agree (unless~~ Indemnitee or any such ~~Stockholder is~~ Affiliate or a ~~Company officer~~ successor or ~~employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers~~ permitted assignee of any ~~party to~~ of the ~~Proposed Sale)~~foregoing.

Appears in 5 contracts

Sources: Note Purchase Agreement (United Airlines, Inc.), Note Purchase Agreement (United Airlines, Inc.), Note Purchase Agreement

Exceptions. ~~Notwithstanding the foregoing~~i. The Manager, in its sole discretion, may prospectively or retroactively exempt a ~~Stockholder will not be required to comply with Section 3.2 above in connection with any proposed Sale~~ Person from one or more of the ~~Company (the “Proposed Sale”) unless~~ownership limitations set forth in Section 11.7 hereof if: ~~(a) any~~ A. the Manager obtains such representations and ~~warranties~~ undertakings from such Person as are reasonably necessary to ~~be made by~~ ascertain that such ~~Stockholder~~ Person’s Beneficial Ownership and Constructive Ownership of such Units in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations excess of the ~~Stockholder~~ Unit Ownership Limit or in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the ~~terms of any agreement, law~~ limitations imposed by Section 11.7 hereof or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor SharesSection 11.7 hereof, as applicable, ~~pursuant~~ will not now or in the future jeopardize the Company’s ability to ~~this Subsection 3.3(g) includes~~ qualify as a REIT under the Code; and B. such Person agrees that any ~~securities and due receipt thereof by any Key Holder~~ violation or ~~Investor would require under applicable law (x) the registration or qualification~~ attempted violation of such ~~securities~~ representations or undertakings (or other action which is contrary to the restrictions contained in Section 11.7 hereof) will result in such Units being automatically transferred to a Trust in accordance with Section 11.7 and Section 11.8 hereof unless the Manager determines that the agreement set forth in this Section 11.7 is not necessary or advisable. ii. Prior to granting any exemption or waiver the Manager may require a ruling from the IRS, or an opinion of counsel, in either case in form and substance satisfactory to the Manager in its sole discretion, as it may deem necessary or advisable in order to determine or ensure the Company’s qualification as a REIT. Notwithstanding the receipt of any ~~person as a broker~~ ruling or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Actopinion, the ~~Company~~ Manager may ~~cause~~ impose such conditions or restrictions as it deems appropriate in connection with granting such exemption or waiver. iii. Subject to ~~be paid to any such Key Holder~~ Section 11.7 hereof, an underwriter or ~~Investor~~ placement agent (or Person acquiring securities for a similar purpose and function) that participates in ~~lieu thereof, against surrender~~ a public offering or a private placement of Units (or securities convertible into or exchangeable for Units) may Beneficially Own and Constructively Own Units (or securities convertible into or exchangeable for Units) in excess of the ~~Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal~~ Unit Ownership Limit but only to the ~~fair value (as determined in good faith by the Board) of the securities which~~ extent necessary to facilitate such ~~Key Holder~~ public offering or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transactionprivate placement. ~~(h) subject to clause (e) above, requiring~~ iv. If the ~~same form of consideration to be available to~~ Manager determines that it is no longer in the ~~holders of any single class or series of capital stock, if any holders of any capital stock~~ best interest of the Company ~~are given an option as~~ to continue to have the ~~form and amount of consideration to be received~~ Company qualify as a ~~result of~~ REIT, the ~~Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder~~ Manager may also determine in its sole judgment and discretion that compliance with any restrictions or limitations on Unit ownership and transfers set forth in Section 11.7 is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale)no longer advisable for REIT election and taxation.

Appears in 5 contracts

Sources: Operating Agreement (Cardone Equal Opportunity Fund 2, LLC), Operating Agreement (Cardone Equal Opportunity Fund 2, LLC), Operating Agreement

Exceptions. Notwithstanding the foregoing, a ~~Stockholder will~~ Shareholder shall not be required to comply with Section 3.2 ~~above~~ in connection with any proposed Sale of the Company (the “"Proposed Sale”") unless: (a) any representations and warranties to be made by such ~~Stockholder~~ Shareholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including ~~but not limited to~~ representations and warranties that (i) the ~~Stockholder~~ Shareholder holds all right, title and interest in and to the Shares such ~~Stockholder~~ Shareholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the ~~Stockholder~~ Shareholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the ~~Stockholder~~ Shareholder have been duly executed by the ~~Stockholder~~ Shareholder and delivered to the acquirer and are enforceable against the ~~Stockholder~~ Shareholder in accordance with their respective ~~terms~~ terms, and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the ~~Stockholder’s~~ Shareholder's obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) ~~such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with~~ the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder Shareholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except that and only to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any ~~stockholder~~ Shareholder of any ~~of identical~~ representations, warranties and covenants provided by all ~~stockholders~~Shareholders with respect to the Company); (ec) the liability for indemnification, if any, of such ~~Stockholder~~ Shareholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Shareholders in connection with such Proposed ~~Sale,~~ Sale is several and not joint with any other Person (except that and only to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any ~~stockholder~~ Shareholder of any ~~of identical~~ representations, warranties and covenants provided by all ~~stockholders~~Shareholders with respect to the Company), and subject to the provisions of the Articles related to the allocation of the escrow, is pro rata in proportion to to, and does not exceed, the amount of consideration paid to such ~~Stockholder~~ Shareholder in connection with such Proposed ~~Sale (in accordance with the provisions of the Restated Certificate)~~Sale; (fd) liability shall be limited to such ~~Stockholder’s~~ Shareholder's applicable share (determined based on the respective proceeds payable to each ~~Stockholder~~ Shareholder in connection with such Proposed Sale in accordance with the provisions of the ~~Restated Certificate~~Articles) of a negotiated aggregate indemnification amount that applies equally to all ~~Stockholders~~ Shareholders but that in no event exceeds the amount of consideration otherwise payable to such ~~Stockholder~~ Shareholder in connection with such Proposed Sale, except with respect to claims related to fraud by such ~~Stockholder~~Shareholder, the liability for which need not be limited as to such ~~Stockholder~~Shareholder; (ge) upon the consummation of the Proposed Sale, (i) each holder of each class or series of ~~the Company’s stock~~ Shares will receive the same form of consideration for their ~~shares~~ Shares of such class or series as is received by other holders in respect of their ~~shares~~ Shares of such same class or ~~series of stock~~series, (ii) each holder of ~~a series of Preferred Stock~~ Common Shares will receive the same amount of consideration per ~~share of such series of Preferred Stock~~ Common Share as is received by other holders in respect of their ~~shares of such same series~~Common Shares, and (iii) ~~each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the~~ the aggregate consideration receivable by all ~~holders of the Preferred Stock and Common Stock~~ Shareholders shall be allocated among the ~~holders of Preferred Stock and Common Stock~~ Shareholders on the basis of the relative liquidation preferences to which the ~~holders of each respective series of Preferred Stock and the holders of Common Stock~~ Shareholders are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the ~~Company’s Certificate of Incorporation~~ Articles in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the ~~foregoing provisions of this Subsection 3.3(g)~~foregoing, if the consideration to be paid in exchange for ~~the Key Holder~~ any Shareholder's Shares ~~or Investor Shares, as applicable,~~ pursuant to this ~~Subsection 3.3(g~~Section 3.3(e) includes any securities and due receipt thereof by any ~~Key Holder or Investor~~ Shareholder would require under applicable law (xi) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such ~~securities;~~ securities or (yii) the provision to any ~~Key Holder or Investor~~ Shareholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to ~~“accredited investors” as defined in Regulation D promulgated under the Securities Act~~Accredited Investors, the Company may cause to be paid to any such ~~Key Holder or Investor~~ Shareholder in lieu thereof, against surrender of ~~the Key Holder Shares or Investor~~ such Shareholders' Shares~~, as applicable~~, which would have otherwise been sold by such ~~Key Holder or Investor~~Shareholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such ~~Key Holder or Investor~~ Shareholder would otherwise receive as of the date of the issuance of such securities in exchange for ~~the Key Holder Shares or Investor~~ such Shareholder's Shares~~, as applicable~~; ~~provided, that, clause (iv) above shall not apply to a SPAC Transaction.~~and (hf) subject to ~~clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock~~Section 3.3(e), if any holders of any ~~capital stock~~ class or series of ~~the Company~~ Shares are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such ~~capital stock~~ class or series of Shares will be given the same option; ~~and (i~~provided, however, that nothing in this Section 3.3(f) shall entitle any holder to receive any form of consideration that such ~~Stockholder~~ holder would be ineligible to receive as a result of such holder's failure to satisfy any condition, requirement or limitation that is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party generally applicable to the ~~Proposed Sale)~~Shareholders.

Appears in 5 contracts

Sources: Private Placement Subscription Agreement (Naqi Logix Inc.), Private Placement Subscription Agreement (Naqi Logix Inc.), Subscription Agreement (Naqi Logix Inc.)

Exceptions. Notwithstanding the foregoing, a Stockholder will not be required to comply with ~~Section~~ Subsection 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) ), unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, ~~including~~ including, but not limited to to, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective ~~terms~~ terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (ec) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Restated Certificate related to the allocation of the escrow, is pro rata in proportion to to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed ~~Sale (in accordance with the provisions of the Restated Certificate)~~Sale; (fd) liability shall be limited to such Stockholder’s 's applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder;; and (ge) upon the consummation of the Proposed ~~Sale,~~ Sale (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, and (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 5 contracts

Sources: Voting Agreement (Gin & Luck Inc.), Voting Agreement (Gin & Luck Inc.), Voting Agreement (Gin & Luck Inc.)

Exceptions. ~~Notwithstanding~~ Any other provision herein to the ~~foregoing~~contrary notwithstanding, ~~a Stockholder will~~ the Company shall not be ~~required~~ obligated pursuant to ~~comply with Section 3.2 above in connection with any proposed Sale~~ the terms of ~~the Company (the “Proposed Sale”) unless~~this Agreement: (a) ~~any representations and warranties~~ To indemnify or advance expenses to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement Indemnitee with respect to ~~such Proposed Sale that certain employees~~ proceedings or ~~officers of the Company be bound~~ claims initiated or brought voluntarily by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several Indemnitee and not ~~joint with any other Person (except to the extent that funds may be paid out~~ by way of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Saledefense, except with respect to ~~claims related~~ proceedings brought to ~~fraud~~ establish or enforce a right to indemnification under this Agreement or any other statute or law or otherwise as required under Section 145 of the DGCL, but such indemnification or advancement of expenses may be provided by ~~such Stockholder,~~ the ~~liability for which need not be limited as to such Stockholder;~~Company in specific cases if the Board of Directors has approved the initiation or bringing of the suit; or (gb) ~~upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration~~ To indemnify Indemnitee for ~~their shares of such class or series as is received~~ any expenses incurred by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent Indemnitee with respect to ~~such securities;~~ any proceeding instituted by Indemnitee to enforce or ~~(y) the provision to any Key Holder or Investor~~ interpret this Agreement, if a court of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender competent jurisdiction determines that each of the ~~Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold~~ material assertions made by Indemnitee in such ~~Key Holder or Investor, an amount in cash equal to the fair value (as determined~~ proceeding was not made in good faith or was frivolous; or (c) To indemnify Indemnitee for expenses or liabilities of any type whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement), but such exception shall only apply to the extent such expenses or liabilities have been paid directly to Indemnitee by an insurance carrier under a policy of officers' and directors' liability insurance; or (d) To indemnify Indemnitee for expenses or the ~~Board~~payment of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 16(b) of the ~~securities which such Key Holder or Investor would otherwise receive as~~ Securities Exchange Act of ~~the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares~~1934, as ~~applicable~~amended, or any similar successor statute; ~~provided, that, clause (iv) above shall not apply to a SPAC Transaction.~~or ~~(h) subject to clause~~ (e) ~~above~~To indemnify Indemnitee for any acts, ~~requiring~~ omissions or transactions from which a director may not be relieved of liability under the ~~same form~~ Company's Charter or By-Laws, or from which a court of ~~consideration to~~ competent jurisdiction determines a director may not be ~~available to~~ relieved of liability under the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale)DGCL.

Appears in 4 contracts

Sources: Indemnification Agreement (Acusphere Inc), Indemnification Agreement (Acusphere Inc), Indemnification Agreement (Acusphere Inc)

Exceptions. ~~Notwithstanding~~ The provisions of Section 6.01 shall not apply to: (i) disclosure by a Party to a Representative or an Affiliate if such Representative or Affiliate (a) is under a similar obligation of confidentiality or (b) is otherwise under a binding professional obligation of confidentiality; (ii) disclosure, after giving prior notice to the ~~foregoing~~other Parties to the extent practicable under the circumstances and subject to any practicable arrangements to protect confidentiality, to the extent requested or required under the rules of any stock exchange on which the Equity Securities of a ~~Stockholder will not be required to comply with Section 3.2 above~~ Party or any of its Affiliates are listed or by Laws or governmental regulations or judicial or regulatory process or in connection with any ~~proposed Sale~~ proceeding arising out of ~~the Company (the “Proposed Sale”) unless: (a)~~ or relating to this Agreement; provided that no prior notice to any ~~representations and warranties~~ Party shall be required to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement given under this Section 6.02 with respect to ~~such Proposed Sale that certain employees~~ any Proceeding commenced or ~~officers~~ brought by a Party in pursuit of its rights or in the exercise of its remedies arising out of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company2021 Transaction Documents, the ~~acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder~~2022 Transaction Documents, the ~~Company and/or other stockholders of~~ 2023 Transaction Documents, the ~~Company;~~ Transaction Documents or the New Transaction Documents (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholdersupon execution); (eiii) ~~the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made~~ disclosure by the ~~Company~~ Investors to a financing source in connection with a bona fide loan or financing arrangement, if the recipient agrees in writing prior to any such ~~Proposed Sale~~disclosure to be subject to confidentiality obligations substantially similar to those set forth in this Article VI; (iv) following notification in writing to the Company on a no names basis, ~~is several and not joint with~~ disclosure by any ~~other Person (except~~ Investor to a bona fide potential purchaser of any portion or all of the Equity Securities of the Company held by such Investor to the extent ~~that funds may~~ necessary for such potential purchaser to evaluate such a proposed transaction or for other similar business purposes, if the recipient agrees in writing prior to any such disclosure to be ~~paid out~~ subject to confidentiality obligations substantially similar to those set forth in this Article VI, of ~~an escrow established to cover breach of representations, warranties and covenants of~~ which the Company ~~as well as breach~~ is a third-party beneficiary; or (v) disclosure by ~~any stockholder~~ the Investors or its Affiliates of ~~any of identical representations, warranties and covenants provided by all stockholders), and~~ Confidential Information that is ~~pro rata in proportion to the amount of consideration paid to such Stockholder~~ reasonably necessary in connection with its reporting requirements to its shareholders, limited partners and/or director or indirect investors in the ordinary course of business in each case, so long as the Persons being disclosed such ~~Proposed Sale (in accordance with the provisions~~ information have been advised of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares confidential nature of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).information

Appears in 4 contracts

Sources: Investors’ Rights Agreement (Uxin LTD), Investors’ Rights Agreement (Joy Capital Opportunity, L.P.), Investors’ Rights Agreement (Eve One Fund II L.P.)

Exceptions. Notwithstanding anything herein to the ~~foregoing~~contrary, the Peninsula Holder shall not have any rights to nominate an individual for election to the Board pursuant to this Section 4, and shall cause any such individuals previously so nominated by Peninsula Holder to resign as a ~~Stockholder will not be required to comply with Section 3.2 above~~ member of the Board within five (5) Business Days after receiving a written request from the Company if the Peninsula Holder or any of its Affiliates has, at any time after the date of this Agreement, (a) an employee, member or partner (other than any third party limited partner who is an investor in ~~connection with~~ the Peninsula Holder) of the Peninsula Holder (excluding any ~~proposed Sale~~ Portfolio Company) or any of its Affiliates (other than a Portfolio Company) that is a director or executive officer of a Competitor of the Company (~~the~~ each such person, a “~~Proposed Sale~~Competitor Director”~~) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority~~), ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a ~~release in customary form of claims arising solely in such Stockholder’s capacity as~~ Portfolio Company that is a ~~stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers~~ Competitor of the Company ~~be bound by a non-compete~~ or ~~similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale;~~ (c) ~~such Stockholder and its Affiliates are not required to amend~~if the Peninsula Board Right Period has ended; provided, ~~extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except~~ that the ~~Stockholder may~~ foregoing restrictions and requirements shall be ~~required~~ applied in an equivalent manner to ~~agree to terminate the investment~~all other non-~~related documents between~~ employee Board members (including any Board member that is an officer, director, employee or ~~among such Stockholder, the Company and/or other stockholders~~ manager of the ~~Company; (d)~~ Sponsor or its Affiliate); provided, further, that the ~~Stockholder~~ Peninsula Holder’s right to nominate individuals to the Board pursuant to this Article 4 shall not be ~~liable for~~ impaired, restricted or rescinded in any manner, if prior to or following the ~~inaccuracy~~ appointment of any ~~representation or warranty made by any other Person in connection~~ Competitor Director, the Peninsula Holder obtains the written consent of the Board (with the ~~Proposed Sale~~Peninsula Directors abstaining) (such consent not to be unreasonably withheld, conditioned or delayed) to such Peninsula Holder employee, member or partner (other than ~~the Company (except to the extent that funds may be paid out of~~ any third party limited partner who is an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (einvestor in Peninsula) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person serving as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC TransactionCompetitor Director. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 4 contracts

Sources: Stockholders Agreement, Stockholders Agreement (Concrete Pumping Holdings, Inc.), Rollover Agreement (Industrea Acquisition Corp.)

Exceptions. Notwithstanding the foregoing, ~~a Stockholder will not be required~~ the obligations of Shareholders pursuant to ~~comply with Section 3.2~~ Sections 3 and 4 above ~~in connection with any proposed Sale of~~ are subject to the ~~Company (the “Proposed Sale”) unless~~following: (a) The Board of Directors of the Company or Holding Company may terminate or waive any ~~representations and warranties~~ provision of this Agreement that restricts any party from taking any action prohibited by Section 3 or 4 of this Agreement prior to ~~be made by such Stockholder in connection~~ termination of the Lock-up Period or the Installment Re-Sale Restricted Period, provided the Board of Directors of the Company provides all Shareholders with the ~~Proposed Sale are limited~~ same termination or waiver at the same time and to ~~representations~~ the same extent. Nothing herein shall prohibit the Company from amending or waiving any agreement with any persons or entities other than Shareholder and ~~warranties related~~ any such amount or waiver or amendment with other persons or entities shall have no effect on the obligations of Shareholders under this Agreement. (b) Notwithstanding the foregoing, Shareholders may transfer Covered Securities of the Company or Holding Company to ~~authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that~~ a Permitted Transferee: (i) if the ~~Stockholder holds all right, title and interest in and to~~ transfer is made by Shareholders without payment or other consideration by the ~~Shares such Stockholder purports to hold, free and clear of all liens and encumbrances,~~ Permitted Transferee; (ii) ~~the obligations of the Stockholder in connection with the transaction have been duly authorized~~if a transfer is otherwise permitted under applicable laws, ~~if applicable~~rules, regulations and other agreements and contracts; and (iii) the ~~documents to be entered into by~~ Permitted Transferee first signs an agreement that includes substantially the ~~Stockholder have been duly executed by the Stockholder~~ terms set forth herein and ~~delivered~~ that is otherwise reasonably acceptable to the ~~acquirer and~~ Company or Holding Company. A "Permitted Transferee" means: (i) if a Shareholder is an individual, to any family member or to any trust where the sole beneficiaries are ~~enforceable against the Stockholder~~ Shareholder and/or family members or to any entity in ~~accordance with their respective terms and~~ which Shareholder is a General Manager or General Partner; (ii) if a Shareholder is a corporation, to any direct or indirect parent or subsidiary or owner of such Shareholder; (iii) if a Shareholder is a partnership, to any partner of such Shareholder; (iv) ~~neither the execution~~ if a Shareholder is a limited liability company, to any member of such Shareholder; and ~~delivery~~ (v) if a Shareholder is a trust, to any beneficiary of ~~documents to be entered into~~ such trust. Except for transfers in ~~connection~~ compliance with ~~the transaction~~this Agreement, ~~nor the performance of the Stockholder’s obligations thereunder, will cause a breach~~ any transfer or ~~violation of the terms~~ attempted transfer of any ~~agreement~~Covered Securities not in compliance with this Agreement, ~~law or judgment, order or decree of any court or governmental agency; (b) such Stockholder~~ shall ~~have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including~~ be null and void and without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of effect and the Company ~~be bound by a non-compete or similar restrictive covenant or a release of claims pursuant~~ is hereby authorized to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to stop any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transactiontransfer. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 3 contracts

Sources: Merger Agreement (Alternative Energy & Environmental Solutions, Inc.), Lock Up and Installment Re Sales Restriction Agreement (Next Fuel, Inc.), Technology and Intellectual Property Purchase Agreement (Next Fuel, Inc.)

Exceptions. Notwithstanding any provision of this Section 34(a) to the ~~foregoing~~contrary (other than with respect to the loss of Tax Savings for which an AT&T Group Member has reimbursed or credited Tower Operator under Section 34(c), ~~a Stockholder will~~ in which case only the exceptions listed in clauses (C), (F) and (G) shall apply), Tower Operator shall not be required to ~~comply~~ make any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more of the following: (A) Other than as a result of an event or circumstance described in Section 34(a)(iii), the determination that this Agreement is not a “true lease” for federal income Tax purposes or that the members of the AT&T Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Included Property, or that Section 467 of the Code does not apply to this Agreement in accordance with ~~Section 3.2 above~~ its terms; (B) The voluntary sale, assignment, transfer or other disposition or the involuntary sale, assignment, transfer or other disposition attributable to a Bankruptcy Event or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Included Property or portion of such Included Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer or disposition (1) contemplated by the Transaction Documents or to or at the request of Tower Operator; (2) otherwise resulting from the exercise by any AT&T Group Member of its rights or performance of its obligations under the Transaction Documents; or (3) in connection with ~~any proposed Sale~~ a default by Tower Operator or exercise of remedies under this Agreement; (C) The gross negligence or willful misconduct of such Tax Indemnitee; (D) Penalties, interest or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents; (E) Tower Operator’s exercise of the ~~Company (the “Proposed Sale”) unless:~~Purchase Option provided in Section 20; (aF) The failure by the AT&T Group or any ~~representations~~ AT&T Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 34(a)(iii); (G) Any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 34(d) to contest the Loss and ~~warranties to be made by~~ such ~~Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and~~ failure materially prejudices the ability to ~~convey title to~~ contest, and Tower Operator had a reasonable basis for such ~~Shares~~contest; (H) Any change in the Code enacted, ~~including but not limited to representations and warranties that (i)~~ adopted or promulgated on or after the ~~Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations~~ date of the ~~Stockholder~~ Master Agreement; provided that this exclusion shall not apply to any substitution or replacement of any Included Property after a change in ~~connection with~~ Law; (I) The failure of the ~~transaction~~ AT&T Group, or any single AT&T Group Member, to have ~~been duly authorized~~sufficient income or Tax liability to benefit from the Federal Income Tax Benefits (it being understood that except as provided herein, ~~if applicable~~this exclusion shall not affect the amount of any indemnity to which an Indemnitee would otherwise be entitled); (J) The inclusion of income by an AT&T Group Member as a result of the reversion of Modifications made by Tower Operator to any AT&T Lessor at the end of the Term; (K) Other than as a result of an event or circumstance described in Section 34(a)(iii), ~~(iii)~~ a determination that AT&T is not holding the ~~documents to be entered~~ Included Property in the ordinary course of a trade or business or that AT&T did not enter into the transactions contemplated by the ~~Stockholder have been duly executed by~~ Transaction Documents for profit; (L) The existence of, or any consequence of, the ~~Stockholder~~ prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder; provided that the Tower Operator makes all payments when due and ~~delivered to the acquirer and are enforceable against the Stockholder~~ accrues all rental expense in accordance with ~~their respective terms~~ the Proportional Rent as set forth in Exhibit D and ~~(iv) neither~~ provided, further, that this exclusion shall not apply to the ~~execution and delivery of documents to be entered~~ entry into ~~in connection with~~ a New Lease under Section 21 following the ~~transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a~~ default or breach ~~or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency~~by Tower Operator; (bM) ~~such Stockholder shall have no obligation to execute~~ Any Tax election or ~~otherwise agree to any restrictive covenant in connection~~ Tax Position by an AT&T Group Member that is inconsistent with the ~~Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party~~ Tax Assumptions to the ~~Proposed Sale~~extent of a resulting increase in the Tower Operator’s indemnity obligations hereunder; (N) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement A Tax Loss with respect to ~~such Proposed Sale that certain employees~~ any period occurring (1) before the Term with respect to a Site, (2) after (and not simultaneously with) the expiration or ~~officers~~ earlier termination of the ~~Company~~ Term with respect to a Site or (3) after (and not simultaneously with) the return to AT&T of the Included Property related to a Site, in each case other than interest, fines, penalties and additions to Tax resulting from a Tax Loss that would not be ~~bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale;~~excluded under this clause (N); and (cO) ~~such Stockholder and its Affiliates are not required to amend, extend~~ The breach or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any ~~representation~~ representation, warranty or ~~warranty made~~ covenant by any ~~other Person~~ AT&T Group Member in ~~connection with~~ any of the ~~Proposed Sale, other than the Company~~ Transaction Documents (except to the extent ~~that funds may be paid out of an escrow established~~ such breach or inaccuracy is attributed to ~~cover~~ a breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the or inaccuracy of any ~~representations and warranties made by the Company in connection with such Proposed Sale~~representation, ~~is several and not joint with any other Person (except to the extent that funds may be paid out~~ warranty or covenant of Tower Operator or an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated Affiliate under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed SaleTransaction Documents).

Appears in 3 contracts

Sources: Master Prepaid Lease (Crown Castle International Corp), Master Prepaid Lease (At&t Inc.), Master Prepaid Lease (Crown Castle International Corp)

Exceptions. Notwithstanding the foregoing, a Stockholder will not be required to comply with ~~Section~~ Subsection 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) ), unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, ~~including~~ including, but not limited to to, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective ~~terms~~ terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (ec) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Restated Certificate related to the allocation of the escrow, is pro rata in proportion to to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed ~~Sale (in accordance with the provisions of the Restated Certificate)~~Sale; (fd) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (ge) upon the consummation of the Proposed ~~Sale,~~ Sale (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the holders of a majority of the then outstanding shares of Preferred Stock elect to receive a lesser amount by written notice given to the Company at least ten days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the ~~foregoing provisions of this Subsection 3.3(g)~~foregoing, if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection ~~3.3(g~~3.3(e) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities ~~Act~~Act of 1933, as amended, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the ~~Board~~Company) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; ~~provided, that, clause (iv) above shall not apply to a SPAC Transaction.~~and (hf) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; ~~and (i~~provided, however, that nothing in this Subsection 3.3(f) shall entitle any holder to receive any form of consideration that such ~~Stockholder~~ holder would be ineligible to receive as a result of such holder’s failure to satisfy any condition, requirement or limitation that is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party generally applicable to the ~~Proposed Sale)~~Company’s stockholders.

Appears in 3 contracts

Sources: Voting Agreement (Winc, Inc.), Voting Agreement (Winc, Inc.), Voting Agreement (Winc, Inc.)

Exceptions. Notwithstanding the foregoing, a Stockholder will not be required to comply with Section ~~3.2~~ 4.7(b) above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) unless the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (ei) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders)~~, and is pro rata in proportion~~ ; (ii) liability of such Stockholder shall be limited to the amount of consideration ~~paid~~ otherwise payable to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (giii) upon the consummation of the Proposed Sale, (i) each holder of each ~~class or~~ series of the Company’s stock will receive the same form of consideration for their shares of such ~~class or~~ series as is received by other holders in respect of their shares of such same ~~class or~~ series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) ~~unless~~ the net consideration (i.e. the aggregate consideration less all reductions for purchase price adjustments, indemnification claims and other adjustments) receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the ~~Company’s~~ Restated Certificate ~~of Incorporation~~ in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause ; (iv) ~~above shall not apply to a SPAC Transaction. (h)~~ subject to ~~clause (e~~Section 4.7(c)(iv) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of ~~any capital stock~~ a series of Preferred Stock or the ~~Company~~ holders of Common Stock are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such ~~capital stock~~ series of Preferred Stock or the holders of Common Stock will be given the same option; ~~and~~provided, however, that nothing in this Section 4.7(c)(v) shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive as a result of such holder’s failure to satisfy any condition, requirement or limitation that is generally applicable to the Company’s stockholders; (iv) ~~such~~ no Stockholder ~~is not~~ will be required to agree (unless such Stockholder is ~~a Company~~ an officer or ~~employee~~employee of the Company) to any ~~restrictive covenant in connection~~ non-competition or non-solicitation agreement; and (vi) no Stockholder or its Affiliates will be required to amend, extend or terminate any contractual or other relationship with the ~~Proposed Sale (including without limitation any covenant not to compete~~ Company, the acquirer or ~~covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale)~~their respective Affiliates.

Appears in 3 contracts

Sources: Investors’ Rights Agreement (PureTech Health PLC), Investors’ Rights Agreement (PureTech Health PLC), Investors’ Rights Agreement (PureTech Health PLC)

Exceptions. The obligations of confidentiality, non-disclosure, and non-use set forth in Section 14.1 (Generally) will not apply to the extent the receiving Party (the “Recipient”) can demonstrate that the disclosed information (a) was in the public domain at the time of disclosure to the Recipient by the other Party, or thereafter entered the public domain, in each case, other than as a result of actions of the Recipient, its Affiliates, employees, licensees, agents, or subcontractors, in breach of this Agreement; (b) was rightfully known by the Recipient or its Affiliates (as shown by its written records) prior to the date of disclosure to the Recipient by the other Party; (c) was received by the Recipient or its Affiliates on an unrestricted basis from a Third Party rightfully in possession of such information and not under a duty of confidentiality to the other Party; or (d) was independently developed by or for the Recipient or its Affiliates without reference to or reliance on the Confidential Information of the other Party (as demonstrated by written records). Notwithstanding any other provision of this Agreement, the ~~foregoing, a Stockholder~~ Recipient’s disclosure of Confidential Information will not be prohibited if such disclosure: (i) is in response to a valid order of a court or other Governmental Authority; or (ii) is otherwise required by Applicable Law or regulation or rules of a nationally recognized securities exchange. Further notwithstanding any other provision of this Agreement, Akebia may disclose Licensee’s Confidential Information to ~~comply with Section 3.2 above in connection with any proposed Sale of~~ the ~~Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Stockholder~~ extent disclosure is required in connection with the ~~Proposed Sale are limited~~ filing or prosecuting patent applications, prosecuting, or defending litigation, responding to ~~representations and warranties related to authority~~an investigation by a Governmental Authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise ~~agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete~~ establishing rights or ~~covenant not to solicit customers~~enforcing obligations under this Agreement, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement making Regulatory Filings with respect to ~~such Proposed Sale that certain employees~~ the Licensed Products, or ~~officers of the Company be bound by a non-compete~~ conducting research, development, or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except clinical studies with respect to ~~claims related~~ the Licensed Products. If a Recipient is required to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, disclose Confidential Information pursuant to this ~~Subsection 3.3(g) includes~~ Section 14.2 (Exceptions), then prior to any ~~securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x)~~ disclosure the ~~registration or qualification~~ Recipient will provide the other Party with prior written notice of such ~~securities~~ disclosure in order to permit the other Party to seek a protective order or ~~of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information~~ other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance confidential treatment of such ~~securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction~~Confidential Information. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 3 contracts

Sources: License Agreement (Akebia Therapeutics, Inc.), License Agreement (Akebia Therapeutics, Inc.), License Agreement (Akebia Therapeutics, Inc.)

Exceptions. (A) Subject to Section 9(b)(i)(A)(ii), the Board of Directors, subject to the directors’ duties under applicable law, may retroactively exempt and shall prospectively exempt a Person from the Series A Ownership Limit, and, if necessary, shall establish or increase an Excepted Holder Limit for such Person, if the Board of Directors determines, based on such representations, covenants and undertakings from such Person to the extent required by the Board of Directors, and as are necessary or prudent to ascertain, as determined by the Board of Directors in its sole discretion, that such exemption could not cause or permit: (i) five or fewer Individuals to Beneficially Own more than 49% in value of the outstanding Capital Stock (taking into account the then current Series A Ownership Limit or Ownership Limit, any then existing Excepted Holder Limits, and the Excepted Holder Limit of such Person); or (ii) the Corporation to Constructively Own an interest in any tenant of the Corporation or any tenant of any entity directly or indirectly owned, in whole or in part, by the Corporation (for this purpose, the Board of Directors may determine in its sole and absolute discretion that a tenant shall not be treated as a tenant of the Corporation if (a) the Corporation could not Constructively Own more than a 9.9% interest (that is described in Section 856(d)(2)(B) of the Code) in any such tenant; or (b) the Corporation (directly, or through an entity directly or indirectly owned, in whole or in part, by the Corporation) derives (and is expected to continue to derive) a sufficiently small amount of revenue from such tenant such that, in the opinion of the Board of Directors, rent from such tenant would not adversely affect the Corporation’s ability to qualify as a REIT). (B) Prior to granting any exception pursuant to Section 9(b)(vii)(A), the Board of Directors may require a ruling from the Internal Revenue Service, or an opinion of counsel, in either case in form and substance satisfactory to the Board of Directors in its sole and absolute discretion, as it may deem necessary or advisable in order to determine or ensure the Corporation’s status as a REIT. Notwithstanding the ~~foregoing~~receipt of any ruling or opinion, ~~a Stockholder will not be required to comply with Section 3.2 above~~ the Board of Directors may impose such conditions or restrictions as it deems appropriate in connection with ~~any proposed Sale~~ granting such exception. (C) Subject to Section 9(b)(i)(A)(ii), an underwriter which participates in a public offering or a private placement of Series A Preferred Stock (or securities convertible into or exchangeable for Series A Preferred Stock) may Beneficially Own or Constructively Own shares of Series A Preferred Stock (or securities convertible into or exchangeable for Series A Preferred Stock) in excess of the ~~Company (~~Series A Ownership Limit, but only to the ~~“Proposed Sale”) unless:~~extent necessary to facilitate such public offering or private placement. (aD) The Board of Directors may only reduce the Excepted Holder Limit for an Excepted Holder: (1) with the written consent of such Excepted Holder at any ~~representations~~ time, or (2) pursuant to the terms and ~~warranties to be made by~~ conditions of the agreements and undertakings entered into with such ~~Stockholder~~ Excepted Holder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations establishment of the ~~Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents~~ Excepted Holder Limit for that Excepted Holder. No Excepted Holder Limit shall be reduced to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale percentage that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other is less than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC TransactionSeries A Ownership Limit. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 3 contracts

Sources: Merger Agreement (Spirit Realty Capital, Inc.), Merger Agreement (Realty Income Corp), Merger Agreement (Spirit Realty Capital, Inc.)

Exceptions. Notwithstanding the foregoing, a Stockholder will not be required to comply with ~~Section~~ Subsection 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (ec) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Restated Certificate related to the allocation of the escrow, is pro rata in proportion to to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except ~~with respect to claims related to fraud by such Stockholder,~~ in the case of liability for ~~which need not be limited as to~~ fraud or willful misconduct by such Stockholder; (gd) upon the consummation of the Proposed Sale, subject to Subsection 3.2(f) above, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock (if any is authorized and outstanding) will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same ~~series~~series (except for cash payments in lieu of fractional shares), and (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common ~~Stock~~Stock (except for cash payments in lieu of fractional shares), and (iv) unless the holders of at least a majority of the shares of Preferred Stock then outstanding, voting collectively as a single class on an as-converted basis, elect to receive a lesser amount by written notice given to the Company at least two (2) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Restated Certificate ~~of Incorporation~~ in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the ~~foregoing provisions of this Subsection 3.3(g)~~foregoing, if the consideration to be paid in exchange for the Key Holder Shares or ~~Investor~~ Rights Holder Shares, as applicable, pursuant to this Subsection ~~3.3(g~~3.3(d) includes any securities and due receipt thereof by any Key Holder or ~~Investor~~ Rights Holder would require under applicable law (x) the registration or qualification of such securities or of any ~~person~~ Person as a broker or dealer or agent with respect to such ~~securities;~~ securities or (y) the provision to any Key Holder or ~~Investor~~ Rights Holder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities ~~Act~~Act of 1933, as amended, the Company may cause to be paid to any such Key Holder or ~~Investor~~ Rights Holder in lieu thereof, against surrender of the Key Holder Shares or ~~Investor~~ Rights Holder Shares, as applicable, which would have otherwise been sold by such Key Holder or ~~Investor~~Rights Holder, an amount in cash equal to the fair value (as determined in good faith by the ~~Board~~Company) of the securities which such Key Holder or ~~Investor~~ Rights Holder would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or ~~Investor~~ Rights Holder Shares, as applicable; ~~provided, that, clause (iv) above shall not apply to a SPAC Transaction.~~and (he) subject to clause (ed) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; ~~and (i~~provided, however, that nothing in this Subsection 3.3(e) shall entitle any holder to receive any form of consideration that such ~~Stockholder~~ holder would be ineligible to receive as a result of such holder’s failure to satisfy any condition, requirement or limitation that is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party generally applicable to the ~~Proposed Sale)~~Company’s stockholders.

Appears in 3 contracts

Sources: Voting Agreement (Denim LA, Inc.), Voting Agreement (Denim LA, Inc.), Voting Agreement (Denim LA, Inc.)

Exceptions. Notwithstanding the foregoing, a ~~Stockholder~~ Member will not be required to comply with Section ~~3.2~~ 6.1 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such ~~Stockholder~~ Member in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such ~~Shares~~Units, including but not limited to representations and warranties that (i) ~~the Stockholder~~ such Member holds all right, title and interest in and to the ~~Shares~~ Units such ~~Stockholder~~ Member purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of ~~the Stockholder~~ such Member in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by ~~the Stockholder~~ such Member have been duly executed by ~~the Stockholder~~ such Member and delivered to the acquirer and are enforceable against ~~the Stockholder~~ such Member in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of ~~the Stockholder~~such Member’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder Member shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any ~~stockholder~~ Member of any of identical representations, warranties and covenants provided by all ~~stockholders~~Members); (ec) the liability for indemnification, if any, of such ~~Stockholder~~ Member in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Members in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any ~~stockholder~~ Member of any of identical representations, warranties and covenants provided by all ~~stockholders~~Members), and is pro rata in proportion to to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder Member in connection with such Proposed Sale, except with respect to claims related to fraud and any claim related to breach by such ~~Stockholder~~Member of any representation, warranty or covenant made by such Member with respect to itself, the liability for which need not be ~~limited as to such Stockholder;~~limited; and (gd) upon the consummation of the Proposed Sale, (i) each holder of each class or series of ~~the Company’s stock~~ Units will receive the same form of consideration for their ~~shares~~ Units of such class or series as is received by other holders in respect of their ~~shares~~ Units of such same class or ~~series of stock~~series, (ii) each holder of ~~a series of~~ Series A Preferred ~~Stock~~ Units will receive the same amount of consideration per ~~share of such series of~~ Series A Preferred ~~Stock~~ Unit as is received by other holders in respect of their ~~shares of such same series~~Series A Preferred Units, (iii) each holder of ~~Common Stock~~ Series B Preferred Units will receive the same amount of consideration per ~~share of Common Stock~~ Series B Preferred Unit as is received by other holders in respect of their ~~shares of Common Stock~~Series B Preferred Units, ~~and~~ (iv) each holder of Common Units will receive the same amount of consideration per Common Unit as is received by other holders in respect of their Common Units, and, unless the holders of a majority of the Preferred Units elect to receive a lesser amount by written notice given to the Company at least five (5) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred ~~Stock~~ Units and Common ~~Stock~~ Units shall be allocated among ~~the holders of Preferred Stock and Common Stock~~ them on the basis ~~of the relative liquidation preferences~~ to which the holders of ~~each respective series of~~ Preferred ~~Stock~~ Units and the holders of Common ~~Stock~~ Units are entitled in a ~~Deemed Liquidation Event (assuming for this purpose that~~ Sale of the ~~Proposed Sale is a Deemed Liquidation Event)~~ Company in accordance with ~~the Company’s Certificate of Incorporation~~ this Agreement as in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (he) ~~subject~~ Subject to clause (ed) ~~above,~~ requiring the same form of consideration to be available to the holders of any single class or series of ~~capital stock~~Units, if any holders of any ~~capital stock~~ class or series of ~~the Company~~ Units are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such ~~capital stock~~ class or series of Units will be given the same option; ~~and~~ provided, however, that nothing in this Section 6.2(e) shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive (iincluding, without limitation, under applicable securities laws) or as a result of such ~~Stockholder~~ holder’s failure to satisfy any condition, requirement or limitation that is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party generally applicable to the ~~Proposed Sale)~~Members.

Appears in 3 contracts

Sources: Operating Agreement, Operating Agreement (Rhythm Holding Company, LLC), Operating Agreement (Rhythm Holding Company, LLC)

Exceptions. Notwithstanding the foregoing, a Stockholder will not be required to comply with Section 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other ~~Person~~ person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (ec) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other ~~Person~~ person or entity (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the ~~Restated Certificate~~Company Charter); (fd) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the ~~Restated Certificate~~Company Charter) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (ge) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Series BRN Preferred Stock will receive the same amount of consideration per share of such series as is received by other holders in respect of their shares of such same series, (iv) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (ivv) ~~unless the~~ the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a ~~Deemed Liquidation Event~~ liquidation, dissolution or winding up of the affairs of the Company (assuming for this purpose that the Proposed Sale is a ~~Deemed Liquidation Event~~liquidation, dissolution or winding up of the affairs of the Company) in accordance with the ~~Company’s Certificate of Incorporation~~ Company Charter in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction.and (hf) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, and if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 3 contracts

Sources: Voting Agreement, Voting Agreement (BIND Therapeutics, Inc), Voting Agreement (BIND Therapeutics, Inc)

Exceptions. Notwithstanding the foregoing, a Stockholder will not be required to comply with ~~Section 3.2~~ Subsection 2.1 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (ec) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed ~~Sale (in accordance with the provisions of the Restated Certificate);~~Sale; and (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (gd) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, and (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the ~~foregoing provisions of this Subsection 3.3(g)~~foregoing, if the consideration to be paid in exchange for the ~~Key Holder~~ Stockholder Shares ~~or Investor Shares, as applicable,~~ pursuant to this Subsection ~~3.3(g~~2.3(d) includes any securities and due receipt thereof by any ~~Key Holder or Investor~~ Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such ~~securities;~~ securities or (y) the provision to any ~~Key Holder or Investor~~ Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such ~~Key Holder or Investor~~ Stockholder in lieu thereof, against surrender of the ~~Key Holder~~ Stockholder Shares ~~or Investor Shares, as applicable,~~ which would have otherwise been sold by such ~~Key Holder or Investor~~Stockholder, an amount in cash equal to the fair value (as determined in good faith by the ~~Board~~Company) of the securities which such ~~Key Holder or Investor~~ Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the ~~Key Holder Shares or Investor~~ Stockholder Shares~~, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction~~. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 3 contracts

Sources: Voting Agreement, Voting Agreement (Cesca Therapeutics Inc.), Voting Agreement (Cesca Therapeutics Inc.)

Exceptions. Notwithstanding the foregoing, a Stockholder will not be required to comply with Section 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and ~~is pro rata in proportion to~~ does not exceed the amount of consideration paid to such Stockholder in connection with such Proposed Sale (and is allocated in accordance with the provisions of the ~~Restated Certificate~~Certificate of Incorporation)~~; (f)~~ ; except that the liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate for indemnification ~~amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to~~ for such Stockholder in ~~connection with such~~ the Proposed ~~Sale, except~~ Sale need not be limited with respect to claims related to to: (i) fraud by such Stockholder~~, the liability for which need not be limited as to~~ ; (ii) intentional misrepresentations by such Stockholder or (iii) breaches of covenants by such Stockholder; (gb) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same ~~series~~series of Preferred Stock, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless waived pursuant to the terms of the Certificate and as may be required by law, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of the Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the ~~foregoing provisions of this Subsection 3.3(g)~~foregoing, (A) if the consideration to be paid in exchange for the Key Holder ~~Shares~~ shares or Investor ~~Shares~~shares, as applicable, pursuant to this ~~Subsection 3.3(g~~Section 3.3(b) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such ~~securities;~~ securities or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities ~~Act~~Act of 1933, as amended, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder ~~Shares~~ shares or Investor ~~Shares~~shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the ~~Board~~Company) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder ~~Shares~~ shares or Investor ~~Shares~~shares, as applicable; ~~provided, that, clause~~ and (ivB) ~~above~~ nothing in this Section 3.3(b) shall ~~not apply~~ entitle any holder to receive any form of consideration that is being paid to a ~~SPAC Transaction.~~Key Holder in respect of such Key Holder’s agreement to continue employment with the Company or any successor Person; and (hc) subject to clause (eb) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; ~~and~~ provided, however, that (i) nothing in this Section 3.3(c) shall entitle any holder to receive any form of consideration that such ~~Stockholder~~ holder would be ineligible to receive as a result of such holder’s failure to satisfy any condition, requirement or limitation that is ~~not required~~ generally applicable to ~~agree~~ the Company’s stockholders, and (~~unless~~ ii) nothing in this Section 3.3(c) shall entitle any holder to receive any form of consideration that is being paid to a Key Holder in respect of such ~~Stockholder is a Company officer or employee)~~ Key Holder’s agreement to ~~any restrictive covenant in connection~~ continue employment with the ~~Proposed Sale (including without limitation~~ Company or any ~~covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale)~~successor Person.

Appears in 3 contracts

Sources: Voting Agreement (Mode Mobile, Inc.), Voting Agreement (Mode Mobile, Inc.), Voting Agreement (Mode Mobile, Inc.)

Exceptions. Notwithstanding the foregoing, a Stockholder will not be required to comply with Section 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (~~except~~ and in such event only to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all ~~stockholders~~stockholders (the “Escrow”)); (ec) the ~~liability for indemnification~~liability, if any, of such Stockholder in connection with the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of ~~an escrow established to cover breach of representations, warranties and covenants of~~ the ~~Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders~~Escrow), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated ~~Certificate~~Charter); (fd) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated ~~Certificate~~Charter) of that is contributed to a negotiated ~~aggregate indemnification amount that applies equally to all Stockholders~~ Escrow but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (ge) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a share of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such ~~same series~~series of Preferred Stock, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the holders of at least a majority of the shares of Preferred Stock, voting together as a single class on an as-converted basis, and the holders of at least a majority of the Series F Preferred Stock, voting as a separate class, elect otherwise by written notice given to the Company at least fifteen (15) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the ~~Company’s Certificate of Incorporation~~ Restated Charter in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction.and (hf) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 3 contracts

Sources: Voting Agreement (Yext, Inc.), Voting Agreement (Yext, Inc.), Voting Agreement (Yext, Inc.)

Exceptions. ~~Notwithstanding~~ Any other provision herein to the ~~foregoing~~contrary notwithstanding, ~~a Stockholder will~~ the Corporation shall not be ~~required~~ obligated pursuant to comply with Section 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of ~~any agreement, law~~ this Agreement: 9.1 To indemnify or ~~judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation~~ advance expenses to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement Indemnitee with respect to ~~such Proposed Sale that certain employees~~ proceedings or ~~officers of the Company be bound~~ claims initiated or brought voluntarily by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several Indemnitee and not ~~joint with any other Person (except to the extent that funds may be paid out~~ by way of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Saledefense, except with respect to ~~claims related~~ proceedings brought to ~~fraud by such Stockholder~~establish or enforce a right to indemnification under this Agreement, the ~~liability for which need not be limited~~ Certificate of Incorporation, the Bylaws or any statute or law or otherwise as ~~to such Stockholder; (g) upon the consummation~~ required under Section 145 of the ~~Proposed Sale~~DGCL, ~~(i) each holder~~ but such indemnification or advancement of ~~each class~~ expenses may be provided by the Corporation in specific cases if the Board of Directors has approved the initiation or ~~series of the Company’s stock will receive the same form of consideration for their shares~~ bringing of such ~~class or series as is received~~ suit; or 9.2 To indemnify Indemnitee for any expenses incurred by ~~other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive~~ the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent Indemnitee with respect to ~~such securities;~~ any proceeding instituted by Indemnitee to enforce or ~~(y) the provision to any Key Holder or Investor~~ interpret this Agreement, if a court of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender competent jurisdiction determines that each of the ~~Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold~~ material assertions made by the Indemnitee in such ~~Key Holder or Investor, an amount in cash equal to the fair value (as determined~~ proceeding was not made in good faith or was frivolous; or 9.3 To indemnify Indemnitee for expenses or liabilities of any type whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement), as and to the extent Indemnitee otherwise has actually received payment (under an insurance policy, by ~~the Board~~law or otherwise) of the amounts otherwise indemnifiable hereunder; or 9.4 To indemnify Indemnitee for expenses and the payment of profits arising from the purchase and sale by Indemnitee of securities ~~which such Key Holder or Investor would otherwise receive as~~ in violation of Section 16(b) of the ~~date~~ Securities Exchange Act of 1934, as amended, or any similar successor statute; or 9.5 To indemnify Indemnitee for any act, omission or transaction listed in the exceptions to waiver of personal liability of a director set forth in Section 102(b)(7) of the ~~issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction~~DGCL. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 3 contracts

Sources: Indemnification Agreement (Gelesis Inc), Indemnification Agreement (Lamar Advertising Co/New), Indemnification Agreement (Lamar Advertising REIT Co)

Exceptions. Notwithstanding the foregoing, a ~~Stockholder~~ Shareholder will not be required to comply with Section ~~3.2~~ 7(a) above in connection with any proposed Sale of the ~~Company~~ Corporation (the “Proposed Sale”) unless: (ai) any representations and warranties to be made by such ~~Stockholder~~ Shareholder (in their capacity as a Shareholder and not as an officer or director of the Corporation) in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such ~~Shares~~Voting Stock, including but not limited to representations and warranties that (i) the ~~Stockholder~~ Shareholder holds all right, title and interest in and to the ~~Shares~~ Voting Stock such ~~Stockholder~~ Shareholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the ~~Stockholder~~ Shareholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the ~~Stockholder~~ Shareholder have been duly executed by the ~~Stockholder~~ Shareholder and delivered to the acquirer and are enforceable against the ~~Stockholder~~ Shareholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the ~~Stockholder~~Shareholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (bii) such ~~Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant~~ Shareholder (in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s their capacity as a ~~stockholder~~ Shareholder and not as an officer or director of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (cCorporation) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the ~~Company~~ Corporation (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the ~~Company~~ Corporation as well as breach by any ~~stockholder~~ shareholder of any of identical representations, warranties and covenants provided by all ~~stockholders~~shareholders); (eiii) the liability for indemnification, if any, of such ~~Stockholder~~ Shareholder (in their capacity as a Shareholder and not as an officer or director of the Corporation) in the Proposed Sale and for the inaccuracy of any representations and warranties made by the ~~Company~~ Corporation in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the ~~Company~~ Corporation as well as breach by any ~~stockholder~~ shareholder of any of identical representations, warranties and covenants provided by all ~~stockholders~~shareholders), and is pro rata in proportion to the amount of consideration paid to such ~~Stockholder~~ Shareholder in connection with such Proposed Sale (in accordance with the provisions of the ~~Restated Certificate~~Certificate of Incorporation); provided, however, that the liability for indemnification with respect to the Regents shall be limited by the applicable provisions of the Constitution and laws of the State of Texas; (fiv) liability shall be limited to such ~~Stockholder~~Shareholder’s applicable share (determined based on the respective proceeds payable to each ~~Stockholder~~ Shareholder in connection with such Proposed Sale in accordance with the provisions of the ~~Restated Certificate~~Certificate of Incorporation) of a negotiated aggregate indemnification amount that applies equally to all ~~Stockholders~~ Shareholders but that in no event exceeds the amount of consideration otherwise payable to such ~~Stockholder~~ Shareholder in connection with such Proposed Sale, except with respect to claims related to fraud by such ~~Stockholder~~Shareholder, the liability for which need not be limited as to such ~~Stockholder~~Shareholder; provided, however, that the liability for indemnification with respect to the Regents shall be limited by the applicable provisions of the Constitution and laws of the State of Texas; (gv) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the ~~Company~~Corporation’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the holders of (1) with respect to the rights of the Series A Preferred Stock, at least a majority of the Series A Preferred Stock, (2) with respect to the rights of the Series B Preferred Stock, at least a majority of the Series B Preferred Stock, (3) with respect to the rights of the Series C Preferred Stock, at least a majority of the Series C Preferred Stock, (4) with respect to the rights of the Series D Preferred Stock, at least a majority of the Series D Preferred Stock (5) with respect to the rights of the Series E-1 Preferred Stock, at least a majority of the Series E-1 Preferred Stock, (6) with respect to the rights of the Series E-2 Preferred Stock, the Requisite Series E-2 Holders and (7) with respect to the rights of the Series F Preferred Stock, the Requisite Series F Holders, elect to take less per share than as determined pursuant to clause 7(b)(v)(Y) below by written notice given to the Corporation at least 3 days prior to the effective date of any such Proposed Sale, (Y) the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the ~~Company~~Corporation’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction.and (hvi) subject to clause (ev) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the ~~Company~~ Corporation are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; ~~and (i~~provided, however, that nothing in this Section 7(vi) shall entitle any holder to receive any form of consideration that such ~~Stockholder~~ holder would be ineligible to receive as a result of such holder’s failure to satisfy any condition, requirement or limitation that is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party generally applicable to the ~~Proposed Sale)~~Corporation’s shareholders.

Appears in 3 contracts

Sources: Shareholders’ Agreement (Mobia Medical, Inc.), Shareholders’ Agreement (Mobia Medical, Inc.), Shareholders’ Agreement (Mobia Medical, Inc.)

Exceptions. Notwithstanding the ~~foregoing~~forgoing, a Stockholder will not be required to comply with Section ~~3.2~~ 2.2 above in connection with any ~~proposed~~ specific Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership of the Shares held by such Stockholder and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the ~~Shares~~ Company’s securities such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed ~~by the Stockholder~~ and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed ~~Sale~~ Sale, and ~~for the inaccuracy of~~ with respect to any ~~representations and warranties~~ representation or warranty made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders)person, and is pro rata in ~~proportion~~ accordance with such Stockholder’s relative stock ownership of the Company; (c) such liability shall be limited to the amount of consideration actually paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to (i) representations and warranties of such Stockholder related to authority, ownership of the Shares held by such Stockholder and the ability to convey title to such Shares, (ii) any covenants made by such Stockholder with respect to confidentiality or voting related to the Proposed Sale or (iii) claims related to fraud or willful breach by such Stockholder, the liability for which need not be ~~limited as to such Stockholder~~limited; (gd) upon the consummation of the Proposed Sale, ~~(i)~~ each holder of each ~~class or~~ series of the Company’s ~~stock~~ Preferred Stock and each holder of Common Stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same and amount of consideration per share of such series of Preferred Stock ~~as is received by other~~ or Common Stock, respectively, and the holders ~~in respect~~ of ~~their shares~~ each series of ~~such same series, (iii) each holder of~~ Preferred Stock and Common Stock ~~will~~ shall, together, receive the same form and amount of consideration per share of ~~Common Stock as is received by other holders in respect of their shares of Common Stock~~such stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of taking into account the relative liquidation ~~preferences~~ preference to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a ~~Deemed Liquidation Event~~ liquidation (~~assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event~~if applicable) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; , provided, ~~however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g),~~ however that if the consideration to be paid in exchange for the ~~Key Holder~~ Shares ~~or Investor Shares, as applicable,~~ pursuant to ~~this Subsection 3.3(g)~~ the Proposed Sale includes any securities and due receipt thereof by any ~~Key Holder or Investor~~ Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such ~~securities;~~ securities or (y) the provision to any ~~Key Holder or Investor~~ Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities ~~Act~~Act of 1933, as amended, the Company may cause to be paid to any such ~~Key Holder or Investor~~ Stockholder in lieu thereof, against surrender of the ~~Key Holder~~ Shares ~~or Investor Shares, as applicable,~~ which would have otherwise been sold by such ~~Key Holder or Investor~~Stockholder, an amount in cash equal to the fair value (as determined in good faith by the ~~Board~~Company) of the securities which such ~~Key Holder or Investor~~ Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the ~~Key Holder Shares or Investor~~ Shares~~, as applicable~~; ~~provided, that, clause (iv) above shall not apply to a SPAC Transaction.~~and ~~(h) subject to clause~~ (e) ~~above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock,~~ if any holders of any ~~capital stock~~ series of ~~the Company~~ Preferred Stock or of Common Stock are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such ~~capital stock~~ respective series of Preferred Stock or of Common Stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 3 contracts

Sources: Stockholders' Agreement, Stockholders’ Agreement (Arsanis, Inc.), Stockholders' Agreement (Arsanis, Inc.)

Exceptions. Notwithstanding anything to the ~~foregoing~~contrary herein, ~~a Stockholder~~ the indemnity provided for in Section 1.01 will not ~~be required~~ extend to ~~comply with Section 3.2 above in connection with~~ any ~~proposed Sale~~ Claim of any Indemnitee to the ~~Company (the “Proposed Sale”) unless~~extent it: (a) ~~any representations and warranties~~ is attributable to ~~be made by such Stockholder in connection with~~ acts or events occurring after the ~~Proposed Sale are limited~~ redelivery of the Aircraft to ~~representations and warranties related to authority~~Lessor, ~~ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and~~ except to the ~~Shares such Stockholder purports~~ extent fairly attributable to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach acts or ~~violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency~~events occurring prior thereto; (b) is directly attributable to the gross negligence or willful misconduct of such ~~Stockholder shall have no obligation to execute~~ Indemnitee or ~~otherwise agree to~~ the breach or inaccuracy of any ~~restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete~~ representation, warranty or covenant ~~not to solicit customers, employees~~ of such Indemnitee in the Lease or ~~suppliers of~~ in any ~~party to the Proposed Sale) or any release of claims~~ other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed SaleOperative Document; (c) ~~such Stockholder and its Affiliates are~~ other than as expressly provided in Section 1.04 of this Exhibit H, is a Tax or loss of a Tax benefit, whether or not the Lessee is required to ~~amend, extend~~ indemnify therefor pursuant to Article XIV hereof or ~~terminate any contractual or other relationship with~~ pursuant to the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the CompanyTax Indemnity Agreement; (d) is a cost or expense expressly required to be paid by such Indemnitee or its permitted transferees (and not by the ~~Stockholder shall not be liable for~~ Lessee) pursuant to the ~~inaccuracy of any representation~~ Lease or ~~warranty made by~~ any other ~~Person in connection with~~ Operative Document and for which the ~~Proposed Sale~~Lessee is not otherwise obligated to reimburse such Indemnitee, ~~other than the Company (except~~ directly or indirectly pursuant to the ~~extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants~~ terms of the ~~Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders)~~Lease or such other Operative Document; (e) ~~the liability for indemnification~~is, ~~if any, of such Stockholder~~ in the ~~Proposed Sale and for~~ case of the ~~inaccuracy~~ Beneficiary, Lessor's Liens attributable to the Beneficiary; in the case of ~~any representations and warranties made by~~ the ~~Company in connection with such Proposed Sale~~Owner Trustee, ~~is several and not joint with any other Person (except~~ Lessor's Liens to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion attributable to the ~~amount~~ Owner Trustee; in the case of ~~consideration paid~~ WFB, Lessor's Liens to the extent attributable to WFB; in the case of a Financing Party, Lessor's Liens to the extent attributable to such ~~Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate)~~Financing Party; (f) ~~liability shall be limited to such Stockholder’s applicable share (determined based on~~ is, in the ~~respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions~~ case of the ~~Restated Certificate) of a negotiated aggregate indemnification amount that applies equally~~ Beneficiary or the Owner Trustee, attributable to ~~all Stockholders but that in no event exceeds~~ the ~~amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud~~ sale by such ~~Stockholder~~Indemnitee of any interest in the Aircraft, the ~~liability~~ Beneficial Interest or any similar interest (including a sale resulting from bankruptcy or other proceedings for the relief of debtors in which ~~need~~ such Indemnitee is the debtor and which is not ~~be limited as~~ caused by the Default of the Lessee), unless in each case such sale shall occur pursuant to ~~such Stockholder~~the exercise of remedies under Section 17.02 hereof or following the occurrence of an Event of Default; (g) ~~upon~~ in the ~~consummation~~ case of the ~~Proposed Sale~~Beneficiary, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a ~~Deemed Liquidation Event)~~ Claim relating to, resulting from, arising out of or in ~~accordance~~ connection with a "prohibited transaction" within the ~~Company’s Certificate~~ meaning of ~~Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions~~ Section 406 of ~~this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares~~ ERISA or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the BoardSection 4975(c)(1) of the ~~securities which such Key Holder~~ Code resulting from the direct or ~~Investor would otherwise receive as~~ indirect use of assets of any ERISA Plan to acquire or hold Beneficiary's interest in the Trust Estate or in the case of any transferee of the ~~date~~ Beneficiary referred to in Section 10(b)(v) of the ~~issuance~~ Purchase Agreement, to purchase the Beneficial Interest pursuant to Section 10(b)(v) of ~~such securities in exchange for~~ the ~~Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction.~~Purchase Agreement; (h) ~~subject~~ except during the continuation of an Event of Default, is attributable to ~~clause (e) above~~any amendment to any of the Operative Documents which is not requested, ~~requiring~~ or consented to, by the ~~same form of consideration to be available~~ Lessee or is not required or made pursuant to the ~~holders~~ terms of any ~~single class or series of capital stock, if any holders of any capital stock~~ of the ~~Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and~~Operative Documents; (i) constitutes the loss of future profits of such ~~Stockholder~~ Indemnitee or losses attributable to such Indemnitee's overhead; or (j) arises from or is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party attributable to the ~~Proposed Sale)~~like-kind exchange transaction described in Section 10(b)(vi) of the Purchase Agreement to the extent such Claim exceeds the amount of Claim that would have been imposed in the absence of such like-kind exchange transaction.

Appears in 3 contracts

Sources: Aircraft Purchase Agreement (Republic Airways Holdings Inc), Aircraft Purchase Agreement (Republic Airways Holdings Inc), Aircraft Purchase Agreement (Republic Airways Holdings Inc)

Exceptions. ~~Notwithstanding~~ Any other provision herein to the ~~foregoing~~contrary notwithstanding, ~~a Stockholder will~~ the Company shall not be ~~required~~ obligated pursuant to comply with Section 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of ~~any agreement, law~~ this Agreement: 10.1 To indemnify for Losses or ~~judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation~~ advance Expenses to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement Indemnitee with respect to ~~such Proposed Sale that certain employees~~ proceedings or ~~officers of the Company be bound~~ claims initiated or brought voluntarily by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several Indemnitee and not ~~joint with any other Person (except to the extent that funds may be paid out~~ by way of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Saledefense, except with respect to ~~claims related~~ proceedings brought to ~~fraud by such Stockholder~~establish or enforce a right to indemnification under this Agreement, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation or Bylaws or any other statute or law or otherwise as required or permitted under Section 145 of the GCL, but such indemnification of Losses or advancement of Expenses may be provided by the Company in ~~effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g),~~ specific cases if the ~~consideration to be paid in exchange for~~ Board of Directors has approved the ~~Key Holder Shares~~ initiation or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification bringing of such ~~securities~~ suit; or 10.2 To indemnify Indemnitee for any Losses or ~~of any person as a broker or dealer or agent~~ Expenses incurred by the Indemnitee with respect to ~~such securities;~~ any proceeding instituted by Indemnitee to enforce or ~~(y) the provision to any Key Holder or Investor~~ interpret this Agreement, if a court of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender competent jurisdiction determines that each of the ~~Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold~~ material assertions made by the Indemnitee in such ~~Key Holder or Investor, an amount in cash equal to the fair value (as determined~~ proceeding was not made in good faith or was frivolous; or 10.3 To indemnify Indemnitee for Expenses or liabilities or Losses of any type whatsoever (including, but not limited to, judgments, fines, ERISA excise taxes or penalties, and amounts paid in settlement) which have been paid directly to Indemnitee by an insurance carrier under a policy of officers’ and directors’ liability insurance maintained by the ~~Board~~Company; or 10.4 To indemnify Indemnitee for Expenses and the payment of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 16(b) of the ~~securities which such Key Holder~~ Securities Exchange Act of 1934, as amended, or ~~Investor would otherwise receive as~~ any similar successor statute; or 10.5 To indemnify Indemnitee for any act, omission or transaction listed in the exceptions to waiver of personal liability of a director set forth in Section 102(b)(7) of the ~~date~~ GCL; or 10.6 To indemnify Indemnitee for Losses or advance Expenses for Indemnitee’s reimbursement to the Company of any bonus or other incentive-based or equity-based compensation previously received by Indemnitee or payment of any profits realized by Indemnitee from the sale of securities of the ~~issuance of such securities in exchange for the Key Holder Shares or Investor Shares~~Company, as ~~applicable; provided, that, clause~~ required in each case under the Exchange Act (ivincluding any such reimbursements under Section 304 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock in connection with an accounting restatement of the Company ~~are given an option as~~ or the payment to the ~~form and amount~~ Company of ~~consideration to be received as a result~~ profits arising from the purchase or sale by Indemnitee of securities in violation of Section 306 of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act).

Appears in 3 contracts

Sources: Employment Agreement (Newpark Resources Inc), Employment Agreement (Newpark Resources Inc), Indemnification Agreement (Newpark Resources Inc)

Exceptions. Notwithstanding the foregoing, a Stockholder will not be required to comply with Section ~~3.2~~ 4.3(a) above in connection with any proposed Sale of the Company (the “Proposed Sale”) ), unless: (ai) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, ~~including~~ including, but not limited to to, representations and warranties that (ia) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (iib) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (~~iii~~c) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective ~~terms~~ terms, and (ivd) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (bii) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (eiii) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Certificate of Incorporation related to the allocation of the escrow, is pro rata in proportion to to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed ~~Sale (in accordance with the provisions of the Restated Certificate);~~Sale; and (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (giv) upon the consummation of the Proposed ~~Sale,~~ Sale (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the holders of a majority of the shares of Common Stock then issued or issuable upon conversion of the shares of Preferred Stock (to include the holders of a majority of the shares of Common Stock then issued or issuable upon conversion of the shares of Series D Convertible Preferred Stock) elect to receive a lesser amount by written notice given to the Company at least ten (10) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the ~~foregoing provisions of this Subsection 3.3(g)~~foregoing, if the consideration to be paid in exchange for the Key Holder ~~Shares~~ Voting Securities or ~~Investor Shares~~Preferred Stock, as applicable, pursuant to this ~~Subsection 3.3(g~~Section 4.3(b)(iv) includes any securities and due receipt thereof by any Key Holder or ~~Investor~~ holder of Preferred Stock would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or ~~Investor~~ holder of Preferred Stock of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or ~~Investor~~ holder of Preferred Stock in lieu thereof, against surrender of the Key Holder ~~Shares~~ Voting Securities or ~~Investor Shares~~Preferred Stock, as applicable, which would have otherwise been sold by such Key Holder or ~~Investor~~holder of Preferred Stock, an amount in cash equal to the fair value (as determined in good faith by the ~~Board~~Company) of the securities which such Key Holder or ~~Investor~~ holder of Preferred Stock would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder ~~Shares~~ Voting Securities or ~~Investor Shares~~Preferred Stock, as applicable~~; provided, that, clause (iv) above shall not apply to a SPAC Transaction~~. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 3 contracts

Sources: Stockholders Agreement (Centrexion Therapeutics Corp), Stockholders Agreement (Centrexion Therapeutics Corp), Stockholders Agreement (Centrexion Therapeutics Corp)

Exceptions. Notwithstanding anything to the ~~foregoing~~contrary herein, ~~a Stockholder will~~ the Company shall not be ~~required~~ obligated to ~~comply~~ advance Expenses or indemnify the Indemnitee pursuant to this Agreement with ~~Section 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless~~respect to: (a) Expenses for which the Indemnitee is indemnified pursuant to any ~~representations~~ directors and ~~warranties to be made~~ officers insurance policy purchased and maintained by the Company (as provided in Article IX). It is specifically understood that the indemnity provided in this Agreement is in excess of any such ~~Stockholder in connection with the Proposed Sale are limited to representations~~ directors and ~~warranties related to authority, ownership~~ officers insurance policy and the ~~ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and~~ Indemnitee will look first to the ~~Shares such Stockholder purports to hold, free~~ directors and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency;officers insurance policy; or (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party Remuneration paid to the ~~Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing~~ Indemnitee if it shall ~~not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company~~ be ~~bound~~ determined by a ~~non-compete~~ final judgment or ~~similar restrictive covenant or a release~~ other final adjudication that such remuneration was in violation of ~~claims pursuant to the definitive agreements in connection with such Proposed Sale;~~law; or (c) ~~such Stockholder and its Affiliates are not required~~ Indemnitee’s reimbursement to ~~amend, extend or terminate~~ the Company of any ~~contractual~~ bonus or other ~~relationship with~~ incentive-based or equity-based compensation previously received by Indemnitee or payment of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the ~~acquirer~~ Exchange Act (including any such reimbursements under Section 304 of the S▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 or ~~their respective Affiliates, except that~~ Section 954 of the ~~Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder,~~ D▇▇▇-F▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act in connection with an accounting restatement of the Company ~~and/or other stockholders~~ or the payment to the Company of profits arising from the purchase or sale by Indemnitee of securities in violation of Section 306 of the ~~Company;~~S▇▇▇▇▇▇▇-▇▇▇▇▇ Act); or (d) ~~the Stockholder shall not be liable for the inaccuracy~~ Expenses incurred on account of any ~~representation~~ Proceeding in which judgment is rendered against the Indemnitee for an accounting of profits made from the purchase or ~~warranty made~~ sale by ~~any other Person in connection with~~ the ~~Proposed Sale, other than the Company (except to the extent that funds may be paid out~~ Indemnitee of ~~an escrow established to cover breach of representations, warranties and covenants~~ securities of the Company ~~as well as breach by any stockholder~~ pursuant to the provisions of Section l6(b) of the Securities Exchange Act of 1934 and amendments to it or similar provisions of any ~~of identical representations~~federal, ~~warranties and covenants provided by all stockholders);~~state or local law; or (e) Expenses incurred on account of the ~~liability for indemnification~~Indemnitee’s conduct which is finally adjudged by a court of competent jurisdiction to have been, ~~if any, of such Stockholder in the Proposed Sale and~~ or which Indemnitee has admitted facts sufficient for the ~~inaccuracy~~ Independent Counsel or court to reasonably conclude that the Indemnitee’s conduct was: (1) a breach of ~~any representations and warranties made by~~ the ~~Company in connection with such Proposed Sale, is several and not joint with any other Person (except~~ duty of loyalty owed to the ~~extent that funds may be paid out~~ Company, (2) an act or omission which was not in Good Faith, (3) an act or omission which involved intentional misconduct or, with respect to any criminal Proceeding, a knowing violation of law, or (4) a transaction from which the Indemnitee derived an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate);improper personal benefit; or (f) ~~liability~~ If a final decision by a court of competent jurisdiction in the matter shall ~~be limited to~~ determine that such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need is not ~~be limited~~ lawful as ~~to such Stockholder;~~against public policy; or (g) ~~upon the consummation of the Proposed Sale~~Any income taxes, ~~(i) each holder of each class~~ or ~~series of the Company’s stock will receive the same form of consideration for their shares of such class~~ any interest or ~~series as is received by other holders~~ penalties related to them, in respect of ~~their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is~~ compensation received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person services as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transactiondirector and/or officer. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 3 contracts

Sources: Indemnification Agreement (Eightco Holdings Inc.), Indemnification Agreement (Global Technologies LTD), Indemnification Agreement (Cryptyde, Inc.)

Exceptions. Notwithstanding the ~~foregoing~~provisions of Section 2.1 above, ~~a Stockholder will~~ the Company shall not ~~be required~~ deliver materials or portions of materials with respect to ~~comply with Section 3.2 above in connection with~~ any ~~proposed Sale~~ meeting of the ~~Company (the “Proposed Sale”) unless: (a) any representations and warranties~~ Board to ~~be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority~~an Observer, ~~ownership~~ and the ~~ability~~ Company may ask an Observer to ~~convey title~~ recuse himself or herself, if the Company determines, in its sole discretion, that the Observer's access to such ~~Shares, including but not limited to representations and warranties that~~ information (i) presents a potential conflict of interest with the ~~Stockholder holds all right~~Stockholders, ~~title and~~ including any conflict resulting from the Board's consideration of issues relating to this Agreement, any other contractual arrangement with the Stockholders or any transaction in which the Stockholders may have any interest other than as investors in ~~and to~~ the ~~Shares such Stockholder purports to hold, free and clear of all liens and encumbrances~~Company, (ii) could jeopardize an attorney-client privilege, which determination is made after the ~~obligations of the Stockholder in connection~~ Company's consultation with ~~the transaction have been duly authorized~~its outside counsel, ~~if applicable,~~ or (iii) is necessary or appropriate in furtherance of discharging the ~~documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered~~ Board's fiduciary duties to the ~~acquirer and are enforceable against~~ Company's shareholders. If the ~~Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to~~ Board requests that an Observer be ~~entered into in connection with the transaction, nor the performance~~ recused from any meeting of the ~~Stockholder’s obligations thereunder~~Board, ~~will cause a breach~~ or ~~violation of the terms of any agreement~~portion thereof, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the ~~provisions of the Restated Certificate); (f) liability~~ foregoing, such Observer shall be ~~limited~~ so recused and not entitled to ~~such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection~~ be present, participate or receive any materials or portions of materials with ~~such Proposed Sale in accordance with~~ respect thereto. Notwithstanding the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed SaleSection 2.2 above, ~~except with respect to claims related to fraud by such Stockholder, the liability for which need~~ an Observer shall not be ~~limited as~~ entitled to ~~such Stockholder; (g) upon~~ receive copies of any consent, if the ~~consummation of~~ Board determines, in its sole discretion, that providing the ~~Proposed Sale,~~ consent (i) ~~each holder~~ presents a potential conflict of ~~each class~~ interest with the Stockholders, including any conflict resulting from the Board's consideration of issues relating to this Agreement, any other contractual arrangement with the Stockholders or ~~series of~~ any transaction in which the Stockholders may have any interest other than as investors in the Company~~’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock~~, (ii) ~~each holder of a series of Preferred Stock will receive~~ could jeopardize an attorney-client privilege, which determination is made after the ~~same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series~~Company's consultation with its outside counsel, or (iii) ~~each holder~~ is necessary or appropriate in furtherance of ~~Common Stock will receive~~ discharging the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences Board's fiduciary duties to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction's shareholders. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 2 contracts

Sources: Observer Agreement (Strategic Hotel Capital Inc), Observer Agreement (Strategic Hotel Capital Inc)

Exceptions. Notwithstanding the foregoing, ~~a Stockholder~~ an Investor or Key Holder, as applicable, will not be required to comply with ~~Section 3.2~~ Subsection 5.4(a) above in connection with any ~~proposed~~ Approved Sale ~~of the Company (the “Proposed Sale”)~~ unless: (ai) any representations and warranties to be made by such ~~Stockholder~~ Investor or Key Holder, as applicable, in connection with the ~~Proposed~~ Approved Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such ~~Shares~~shares, ~~including~~ including, but not limited to to, representations and warranties that (i) ~~the Stockholder~~ such Investor or Key Holder holds all right, title and interest in and to the ~~Shares~~ shares such ~~Stockholder~~ Investor or Key Holder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the ~~Stockholder~~ Investor or Key Holder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the ~~Stockholder~~ Investor or Key Holder have been duly executed by the ~~Stockholder~~ Investor or Key Holder and delivered to the acquirer and are enforceable against the ~~Stockholder~~ Investor or Key Holder in accordance with their respective ~~terms~~ terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the ~~Stockholder~~Investor or Key Holder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (eii) the liability for indemnification, if any, of such ~~Stockholder~~ Investor or Key Holder in the ~~Proposed~~ Approved Sale and for the inaccuracy of any representations and warranties made by the Company or its stockholders in connection with such ~~Proposed~~ Approved Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to to, and does not exceed, the amount of consideration paid to such ~~Stockholder~~ Investor or Key Holder in connection with such ~~Proposed Sale (in accordance with the provisions of the Restated Certificate);~~Approved Sale; and (fiii) liability shall be limited to such ~~Stockholder~~Investor’s or Key Holder’s (as applicable) applicable share (determined based on the respective proceeds payable to each ~~Stockholder~~ Investor or Key Holder, as applicable, in connection with such ~~Proposed~~ Approved Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all ~~Stockholders~~ Investors and Key Holders but that in no event exceeds the amount of consideration otherwise payable to such ~~Stockholder~~ Investor or Key Holder, as applicable, in connection with such ~~Proposed~~ Approved Sale, except with respect to claims related to fraud by such ~~Stockholder~~Investor or Key Holder, as applicable, the liability for which need not be limited as to such ~~Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class~~ Investor or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key ~~Holder Shares or Investor Shares~~Holder, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 2 contracts

Sources: Investor Rights Agreement (AveXis, Inc.), Investor Rights Agreement (AveXis, Inc.)

Exceptions. Notwithstanding anything to the ~~foregoing~~contrary set forth in Section 5.04(a), at any time prior to obtaining the Required Stockholder Approval, in response to an unsolicited, bona fide written Acquisition Proposal received after the date of this Agreement that is not withdrawn and did not arise from or in connection with a ~~Stockholder will~~ breach of the obligations set forth in this Section 5.04, the Company may: (i) furnish information in response to a request therefor (including nonpublic information regarding the Company or any of its Subsidiaries) to the Person who made such Acquisition Proposal; provided that such information has previously been made available to, or is made available to, Parent prior to or substantially concurrently with the time such information is made available to such Person; and provided, further, that, prior to furnishing any such information, the Company executes a confidentiality agreement between the Company and the Person making such Acquisition Proposal containing terms that are not ~~be required~~ less restrictive to the Person making such Acquisition Proposal than the terms in the Confidentiality Agreement are on Parent and additional terms that expressly permit the Company to comply with the terms of this Section ~~3.2 above~~ 5.04; and (ii) participate in ~~connection~~ any discussions or negotiations with any ~~proposed Sale of the Company (the “Proposed Sale”) unless: (a)~~ such Person regarding such Acquisition Proposal; in each case, if, and only if, prior to taking any ~~representations and warranties to be made by such Stockholder~~ action described in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that clauses (i) ~~the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances,~~ or (ii) ~~the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable~~above, (~~iii~~A) the ~~documents~~ Board of Directors determines in good faith (I) after consultation with its outside legal counsel and its financial advisor, that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to ~~be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder~~ result in ~~accordance with their respective terms~~ a Superior Proposal and (ivII) ~~neither the execution and delivery of documents~~ after consultation with its outside legal counsel, that failure to ~~be entered into~~ take such action described in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, clauses (i) ~~each holder of each class~~ or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Sharesabove, as applicable, would reasonably be expected to constitute a breach of the directors’ fiduciary duties under Delaware Law; and (B) the Company has delivered to Parent written notice advising Parent of the Board of Directors’ determination pursuant to ~~this Subsection 3.3(g~~the foregoing clause (A) ~~includes any securities~~ and ~~due receipt thereof by any Key Holder or Investor would require under applicable law~~ the Company’s intention to take the action described in clauses (xi) ~~the registration or qualification of~~ and (ii) above; provided that only one such ~~securities or of any person as a broker or dealer or agent~~ notice need be given with respect to ~~such securities;~~ any specific Acquisition Proposal or ~~(y) the provision to any Key Holder~~ amended or ~~Investor~~ modified Acquisition Proposal. Table of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).Contents

Appears in 2 contracts

Sources: Merger Agreement (Timber Pharmaceuticals, Inc.), Merger Agreement (Timber Pharmaceuticals, Inc.)

Exceptions. Notwithstanding the ~~foregoing~~forgoing, a Stockholder will not be required to comply with Section 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders)Company; (ec) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders)Person, and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Second Restated Certificate); (fd) liability shall be limited to such Stockholder’s ~~applicable~~ pro rata share (determined ~~based on the respective~~ in proportion to proceeds ~~payable to each~~ received by such Stockholder in connection with such Proposed Sale in accordance with the provisions of the Second Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration ~~otherwise payable~~ actually paid to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (ge) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred ~~Stock as is received by other holders in respect of their shares of such same series~~Stock, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common ~~Stock as is received by other holders in respect of their shares of Common~~ Stock, and (iv) unless the holders of at least two-thirds of the Series A Preferred Stock and Series B Preferred Stock elect otherwise by written notice given to the Company at least thirty (30) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 2 contracts

Sources: Voting Agreement (Anterios Inc), Voting Agreement (Anterios Inc)

Exceptions. Notwithstanding anything contained to the ~~foregoing, a Stockholder will not be required to comply with~~ contrary in Section ~~3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless:~~7.3 or 7.4, (a) if the sale by any ~~representations~~ Holder requires regulatory approval before the purchase and ~~warranties to~~ sale of such Holder’s securities can be ~~made by such Stockholder in connection with~~ consummated, the ~~Proposed Sale are limited to representations and warranties related to authority, ownership and~~ purchase agreement must provide either for multiple closings or for the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear closing of all ~~liens and encumbrances, (ii) the obligations~~ of the ~~Stockholder in connection with~~ sales when the ~~transaction have~~ last regulatory approval has been ~~duly authorized~~obtained, ~~if applicable, (iii)~~ as the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency;purchaser may elect, (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration ~~to be paid~~ in ~~exchange for~~ the ~~Key Holder Shares or Investor Shares, as applicable,~~ sale pursuant to ~~this Subsection 3.3(g)~~ Section 7.3 or 7.4 consists of or includes ~~any securities~~ securities, and ~~due receipt thereof by any Key Holder or Investor would require under applicable law (x)~~ the ~~registration or qualification~~ sale of such securities ~~or of any person as~~ to a ~~broker or dealer or agent with respect to such securities; or (y) the provision to any Key~~ Holder ~~or Investor of any information other than such information as~~ would require either a ~~prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated~~ registration statement under the Securities Act, or preparation of a disclosure statement pursuant to Regulation D (or any successor regulation) under the ~~Company~~ Securities Act, or a similar provision of any state securities law, and such registration statement or disclosure statement is not otherwise being prepared in connection with the sale, then such Holder may ~~cause to be paid to any such Key~~ (at the option of the Transferring Holder or ~~Investor in lieu thereof, against surrender of~~ the ~~Key Holder Shares or Investor Shares~~NMP Entities, as applicable) be paid, ~~which would have otherwise been sold by~~ in lieu of such ~~Key Holder or Investor~~securities, ~~an amount in cash equal to~~ the fair market value (of such securities in cash, as determined in good faith by the Board, whose determination shall be final and binding, (c) the consideration per share received by a Holder in any sale pursuant to Section 7.3 or 7.4 which is not a sale of all of the ~~securities~~ outstanding Capital Stock shall be adjusted as between the Series A Holders and the Series B Holders if the sale involves both series of Preferred Stock, which ~~such Key Holder or Investor would otherwise receive~~ adjustment shall be as agreed upon by the Holders of a majority of the ~~date~~ shares of Series A Preferred Stock and the Holders of a majority of the ~~issuance~~ shares of Series B Preferred Stock participating in such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stocksale or, if ~~any holders of any capital stock of~~ no agreement is reached on or before the ~~Company are given an option~~ 10th day preceding the scheduled closing date for such sale, then as to determined in good faith by the ~~form~~ Board, whose determination shall be final and ~~amount of consideration to be received as a result of the Proposed Sale~~binding, ~~all holders of such capital stock will be given the same option;~~ and (id) ~~such Stockholder is not required~~ in no event shall any Holder be obligated by Section 7.3 or 7.4 to ~~agree (unless such Stockholder is a Company officer~~ assume any joint liabilities or ~~employee)~~ obligations with respect to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale)other Holder.

Appears in 2 contracts

Sources: Investor Stockholders Agreement (Ikaria, Inc.), Investor Stockholders Agreement (Ikaria, Inc.)

Exceptions. Notwithstanding the foregoing, ~~a Stockholder will~~ the Grantee shall not be required to comply with Section ~~3.2 above~~ 8(a) in connection with any proposed ~~Sale of the Company~~ Change in Control (the “Proposed Sale”) unless: (ai) any representations and warranties to be made by ~~such Stockholder~~ the Grantee in connection with the Proposed Sale are limited to representations and warranties ~~related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties~~ that (iA) the ~~Stockholder holds all right, title and interest in and to~~ shares of common stock which the ~~Shares such Stockholder~~ Grantee purports to ~~hold,~~ hold are free and clear of all liens and encumbrances, (iiB) the obligations of the ~~Stockholder~~ Grantee in connection with the transaction have been duly authorized, if applicable, (~~iii~~C) the documents to be entered into by the ~~Stockholder~~ Grantee have been duly executed by the ~~Stockholder~~ Grantee and delivered to the acquirer and are enforceable against the ~~Stockholder~~ Grantee in accordance with their respective ~~terms~~ terms, and (ivD) neither the execution and delivery of the documents to be entered into in connection with the transaction, nor the performance of the ~~Stockholder~~Grantee’s obligations thereunder, will cause a breach or violation of the terms of any agreement, ~~law~~ law, or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (dii) the ~~Stockholder~~ Grantee shall not be liable for the inaccuracy of any representation or warranty made by any other ~~Person~~ individual or entity in connection with the Proposed Sale, other than the Company (except to the extent that (A) funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any shareholder of any of identical representations, warranties and covenants provided by all shareholders, and (B) the inaccuracies were made by the Company in connection with the grant of the shares of Stock under this Award Agreement); (iii) the liability for indemnification, if any, of the Grantee in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its shareholders in connection with such Proposed Sale, is several and not joint with any other individual or entity (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any ~~stockholder~~ shareholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholdersshareholders), and is pro rata in proportion to to, and does not exceed, the amount of consideration paid to ~~such Stockholder~~ the Grantee in connection with such Proposed ~~Sale (in accordance with the provisions of the Restated Certificate)~~Sale; (fiv) liability shall be limited to ~~such Stockholder~~the Grantee’s applicable ~~share~~ shares of common stock (determined based on the respective proceeds payable to each ~~Stockholder~~ shareholder in connection with such Proposed Sale in accordance with the provisions of the ~~Restated Certificate~~Company’s Certificate of Incorporation and/or Bylaws) of a negotiated aggregate indemnification amount that applies equally to all ~~Stockholders~~ shareholders but that in no event exceeds the amount of consideration otherwise payable to ~~such Stockholder~~ the Grantee in connection with such Proposed Sale, except with respect to claims related to fraud by ~~such Stockholder~~the Grantee, the liability for which need not be limited as to ~~such Stockholder~~the Grantee; (gv) upon the consummation of the Proposed Sale, (iA) each holder of each class or series of the Company’s shares of common stock will receive the same form of consideration for their shares of such class or series as is received by other ~~holders~~ shareholders in respect of their shares of such same class or ~~series of stock~~series, and (iiB) each ~~holder of a series of Preferred Stock~~ shareholder holding such shares will receive the same amount of consideration per share ~~of such series of Preferred Stock~~ as is received by other ~~holders~~ shareholders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the ~~foregoing provisions of this Subsection 3.3(g)~~foregoing, if the consideration to be paid in exchange for the ~~Key Holder Shares or Investor Shares, as applicable~~shares of common stock, pursuant to this ~~Subsection 3.3(g~~Section 8(b)(v) includes any securities and due receipt thereof by any ~~Key Holder or Investor~~ shareholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; , or (y) the provision to any ~~Key Holder or Investor~~ shareholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, as amended, the Company may cause to be paid to any such ~~Key Holder or Investor~~ shareholder in lieu thereof, against surrender of the ~~Key Holder Shares or Investor Shares~~shares, as applicable, which would have otherwise been sold by such ~~Key Holder or Investor~~shareholder, an amount in cash equal to the fair market value (as reasonably determined ~~in good faith~~ by the Board) of the securities which such ~~Key Holder or Investor~~ shareholder would otherwise receive as of the date of the issuance of such securities in exchange for the ~~Key Holder Shares or Investor Shares~~shares, as applicable; ~~provided, that, clause (iv) above shall not apply to a SPAC Transaction.~~and (hvi) subject to ~~clause (e) above~~Section 8(b)(v), requiring the same form of consideration to be available to the ~~holders~~ shareholders of any single class or series of ~~capital stock~~shares, if any ~~holders~~ such shareholders of any ~~capital stock~~ shares of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all ~~holders~~ shareholders of such ~~capital stock~~ shares will be given the same option; ~~and (i~~provided, however, that nothing in this Section 8(b)(vi) shall entitle any shareholder to receive any form of consideration that such ~~Stockholder~~ shareholder would be ineligible to receive as a result of such shareholder’s failure to satisfy any condition, requirement or limitation that is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party generally applicable to the ~~Proposed Sale)~~Company’s shareholders.

Appears in 2 contracts

Sources: Restricted Stock Unit Award Agreement (Spectral AI, Inc.), Restricted Stock Unit Award Agreement (Spectral AI, Inc.)

Exceptions. Notwithstanding the foregoing, a Stockholder will not be required to comply with Section ~~3.2~~ 4.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Stockholder’s Shares, ~~including but not limited to~~ including, without limitation, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the ~~acquirer~~ acquiror and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations ~~thereunder~~there under, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental ~~agency~~agency by which such Stockholder is subject or bound; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other ~~Person~~ person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (ec) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other ~~Person~~ person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the ~~Restated Certificate~~Certificate of Incorporation); (fd) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the ~~Restated Certificate~~Certificate of Incorporation) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (ge) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) ~~unless the~~ the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a ~~Deemed~~ Liquidation Event (assuming for this purpose that the Proposed Sale is a ~~Deemed~~ Liquidation Event) in accordance with the ~~Company’s~~ Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction.and (hf) subject to ~~clause (e~~subsection 4.3(e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of ~~any~~ a series or class of capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such series or class of capital stock will be given the same option; ~~and (i~~provided, however, that nothing in this subsection 4.3(f) shall entitle any holder to receive any form of consideration that such ~~Stockholder~~ holder would be ineligible to receive as a result of such holder’s failure to satisfy any condition, requirement or limitation that is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party generally applicable to the ~~Proposed Sale)~~Company’s stockholders.

Appears in 2 contracts

Sources: Voting Agreement (WayBetter, Inc.), Voting Agreement (WayBetter, Inc.)

Exceptions. ~~Notwithstanding the foregoing, a Stockholder will not be required to comply with Section 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless:~~ (a) The Board of Trustees, in its sole discretion, may grant to any ~~representations and warranties~~ Person who makes a request therefor (a “Requesting Person”) an exception to ~~be made by such Stockholder in connection~~ the Ownership Limit (or one or more elements thereof) with respect to the ~~Proposed Sale are limited to representations and warranties related to authority,~~ ownership ~~and the ability to convey title to such~~ of any series or class of Shares, ~~including but not limited~~ subject to ~~representations~~ the following conditions and ~~warranties that~~ limitations: (i) the ~~Stockholder holds all right~~Board of Trustees shall have determined, ~~title and interest~~ in ~~and~~ its discretion, that: (A) the Beneficial Ownership or Constructive Ownership of Equity Shares by such Shareholder in excess of the Ownership Limit would not violate Section 5.2.1(a)(ii), (B) the Requesting Person’s ownership of Equity Shares in excess of the Ownership Limit pursuant to the exception requested hereunder (together with the ownership of Equity Shares by all other Persons as permitted under this Article V, taking into account any previously granted exceptions pursuant hereto) would not cause a default under the terms of any contract to which the Trust or any of its subsidiaries is a party or reasonably expects to become a party and (C) the Requesting Person’s ownership of Shares in excess of the Ownership Limit pursuant to the exception requested hereunder (together with the ownership of Shares by all other Persons as permitted under this Article V, taking into account any previously granted exceptions pursuant hereto) is in the best interests of the Trust; and (ii)(A) prior to granting any exception pursuant to this Section 5.2.7(a), the Board of Trustees may require a ruling from the Internal Revenue Service, a ruling from a foreign regulatory body with jurisdiction over a Foreign REIT, or an opinion of counsel, in each case in form and substance satisfactory to the Board of Trustees in its sole discretion, as it may deem necessary or advisable in order to determine or ensure any Investee’s status as a REIT or Foreign REIT and (B) such ~~Stockholder purports~~ Requesting Person provides to ~~hold~~the Board of Trustees, ~~free~~ for the benefit of the Trust, such representations and ~~clear~~ undertakings, if any, as the Board of ~~all liens~~ Trustees may, in its discretion, determine to be necessary in order for it to make the determination that the conditions set forth in Section 5.2.7(a)(i) have been and/or will continue to be satisfied (including, without limitation, an agreement as to a reduced Ownership Limit or Excepted Holder Limit for such Requesting Person with respect to the Constructive Ownership of one or more other classes or series of Equity Shares not subject to the exception), and ~~encumbrances~~such Requesting Person agrees that any violation of such representations and undertakings or any attempted violation thereof will give rise to the application of the remedies set forth in Sections 5.2.1(b) and 5.2.2 with respect to Equity Shares held in excess of the Ownership Limit or the Excepted Holder Limit (as may be applicable) with respect to such Requesting Person (determined without regard to the exception granted such Requesting Person under this Section 5.2.7(a). If a member of the Board of Trustees requests that the Board of Trustees grant an exception pursuant to this Section 5.2.7 with respect to such member, or with respect to any other Person if such member of the Board of Trustees would be considered to be the Beneficial Owner or Constructive Owner of Equity Shares owned by such other Person, such member of the Board of Trustees shall not participate in the decision of the Board of Trustees as to whether to grant any such exception. (b) In determining whether to grant any exemption pursuant to Section 5.2.7(a), the Trustees may consider, among other factors, (i) the general reputation and moral character of the Requesting Person, (ii) ~~the obligations~~ whether ownership of ~~the Stockholder in connection with the transaction have been duly authorized, if applicable~~Equity Shares would be direct or through ownership attribution, (iii) whether the ~~documents~~ Person’s ownership of Equity Shares would adversely affect any Investee’s ability to ~~be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder~~ acquire additional properties or additional investments in ~~accordance with their respective terms and~~ other issuers, (iv) ~~neither~~ whether granting an exemption for the ~~execution and delivery of documents to be entered into in connection with the transaction, nor the performance~~ Requesting Person would adversely affect any of the ~~Stockholder~~Trust’s ~~obligations thereunder~~existing contractual arrangements, ~~will cause a breach or violation~~ (v) whether the Requesting Person has been approved as an owner of the ~~terms~~ Trust by all regulatory or other governmental authorities who have jurisdiction over the Trust and (vi) whether the Requesting Person is attempting to change control of ~~any agreement~~the Trust or affect its policies in a way which the Board of Trustees, ~~law or judgment~~in its discretion, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party considers adverse to the ~~Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder~~ best interest of the ~~Company; provided that,~~ Trust or its Shareholders. Nothing in this Section 5.2.7(b) shall be interpreted to mean that the ~~foregoing shall~~ Board of Trustees may not ~~limit~~ act in its discretion in making any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale;determination under Section 5.2.1(b). (c) ~~such Stockholder and its Affiliates are not required to amend, extend~~ An underwriter or ~~terminate any contractual~~ initial purchaser that participates in a public offering or ~~other relationship with the Company, the acquirer~~ a private placement of Equity Shares (or ~~their respective Affiliates, except that the Stockholder~~ securities convertible into or exchangeable for Equity Shares) may ~~be required to agree to terminate the investment-related documents between~~ Beneficially Own or ~~among such Stockholder, the Company and/or other stockholders~~ Constructively Own Equity Shares (or securities convertible into or exchangeable for Equity Shares) in excess of the ~~Company; (d)~~ Ownership Limit or the ~~Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person~~ limitations in ~~connection with the Proposed Sale~~Section 5.2.1(a)(ii), ~~other than the Company (except~~ but only to the extent ~~that funds may be paid out of an escrow established~~ necessary to ~~cover breach of representations, warranties and covenants of the Company~~ facilitate such public offering or private placement as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made determined by the ~~Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out~~ Board of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC TransactionTrustees. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 2 contracts

Sources: Agreement and Declaration of Trust (RMR Real Estate Income Fund), Agreement and Declaration of Trust (RMR Asia Pacific Real Estate Fund)

Exceptions. ~~Notwithstanding~~ (a) BJ or its Partner Affiliate (a Mojave Owner), AJ and BW or their Partner Affiliate (a Mojave Owner), and AJ-1 and BW-1 or their Partner Affiliate (a Mojave Owner) has acquired or intends to acquire a Project or interest in a Project known either as Mojave Project 16, Mojave Project 17, or Mojave Project 18 (a "Mojave Project") leased or to be leased to a lessee pursuant to a Mojave Lease as permitted pursuant to Section 10 of this Amended Agreement (a "Mojave Transferee"). Such Partner (or Partners) or its or their Partner Affiliate, will be permitted to transfer its or their Partnership Interest, or all stock of such Partner or Partners, as appropriate, to a Mojave Transferee during the ~~foregoing~~Temporary Period or in connection with exercise of rights of such Partner or Partners or its or their Partner Affiliate following the occurrence of an event of loss or event of default under the terms of the Mojave Lease with such Mojave Transferee, ~~a Stockholder will not be~~ without being required to comply with Section ~~3.2 above~~ 12 (except as provided in this Section 12.5) and such transfer shall be a valid transfer binding on the Partnership and the Partners; provided that such transfer shall be in connection with ~~any proposed Sale~~ a transfer of ~~the Company (the “Proposed Sale”) unless: (a) any representations~~ all rights of such Partner or Partners and ~~warranties to be made by such Stockholder~~ its or their Partner Affiliate in ~~connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title~~ a Mojave Project to such ~~Shares~~Mojave Transferee, ~~including but~~ other than an interest as a secured creditor of such Mojave Transferee. Such Mojave Transferee shall be liable for all losses, liabilities, claims and damages of any Partner or the Partnership resulting from such transfer not ~~limited~~ being in compliance with Section 12 and shall be deemed to ~~representations and warranties that (i) the Stockholder holds~~ have assumed all ~~right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the~~ obligations of the ~~Stockholder~~ transferring Partner or Partners or Partner Affiliate hereunder, and under the Management and Maintenance Agreement and its or their Fee Agreements and Technical Use Agreements. Such Mojave Transferee shall, subsequent to such transfer, take, or in ~~connection~~ the case of acquisition by such Mojave Transferee of stock of a Partner or Partners, cause such Partner or Partners to take, all action necessary to cause such transfer to comply with ~~the transaction have been duly authorized~~Section 12. If upon any such transfer to a Mojave Transferee, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation all of the terms and conditions of ~~any agreement~~Section 12 have not been complied with by said Mojave Transferee, ~~law or judgment~~then the relevant Partner shall immediately become an Inactive Partner, ~~order or decree~~ and the relevant Project shall be immediately disconnected from the Transmission Line, until such time as all of ~~any court or governmental agency;~~the terms and conditions of Section 12 have been complied with by the Mojave Transferee. (b) ~~such Stockholder shall have no obligation to execute~~ If the Partner, or ~~otherwise agree to any restrictive covenant in connection with~~ Partner Affiliate, is an owner trust, then the ~~Proposed Sale~~ trustee of the owner trust (~~including~~ without limitation ~~any covenant~~ of its rights in Section 12.5(a)) may assign and delegate its right, title, interest, duties and obligations as trustee of said owner trust to a successor trustee, or to its beneficiary, without the necessity of complying with Section 12; provided that such transfer will not ~~to compete~~ cause the Transmission Line or ~~covenant not to solicit customers, employees or suppliers~~ the Project of any ~~party~~ Partner or Partner Affiliate to ~~the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity~~ lose its status as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g)Qualifying Facility and, if the ~~consideration to be paid~~ Project of any Partner or Partner Affiliate is a Qualifying Facility that enjoys all of the exemptions set forth in ~~exchange for the Key Holder Shares~~ 18 C.F.R. 292.601 and 18 C.F.R. 292.602 or ~~Investor Shares~~any successor thereto or any similar exemptions arising under state law, ~~as applicable, pursuant to this Subsection 3.3(g) includes~~ that any ~~securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification~~ of such ~~securities~~ Project or of Projects will not lose any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such ~~securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction~~exemptions. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 2 contracts

Sources: General Co Ownership Partnership Agreement (Zond Windsystem Partners LTD Series 85-A), General Co Ownership Partnership Agreement (Zond Windsystem Partners LTD Series 85-B)

Exceptions. ~~Notwithstanding the foregoing, a Stockholder will not be required to comply with~~ Except as provided below in this Section 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that 6.06(d): (i) the ~~Stockholder holds all right, title and interest~~ Seller’s Board of Directors shall recommend that the Seller’s stockholders vote in favor of and to adopt and approve this Agreement and the ~~Shares such Stockholder purports to hold, free and clear of all liens and encumbrances~~Merger at the Seller Stockholders’ Meeting, (ii) the ~~obligations~~ Proxy Statement/Prospectus shall include a statement of the ~~Stockholder in connection with the transaction have been duly authorized~~Seller’s Board of Directors Recommendation, ~~if applicable,~~ and (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the ~~execution and delivery~~ Seller’s Board of ~~documents~~ Directors nor any committee thereof shall withhold, withdraw, amend or modify, or propose or resolve to ~~be entered into in connection with the transaction~~withhold, ~~nor the performance of the Stockholder’s obligations thereunder~~withdraw, ~~will cause a breach~~ amend or ~~violation of the terms of any agreement~~modify, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a ~~definitive agreement with respect~~ manner adverse to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (~~except to the extent that funds may be paid out~~ in either event, a “Change of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholdersRecommendation”), ~~and is pro rata in proportion to~~ the ~~amount~~ Seller’s Board of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed SaleDirectors Recommendation; provided, however, that nothing in this Agreement shall prevent the Seller’s Board of Directors from (1) withholding, withdrawing, amending or modifying the Seller’s Board of Directors Recommendation, or (2) not including in the Proxy Statement/Prospectus the Seller’s Board of Directors Recommendation if, in either case, the Seller’s Board of Directors reasonably determines in good faith, after consultation with its outside legal counsel, that, ~~notwithstanding~~ due solely to facts or circumstances coming to the ~~foregoing provisions~~ attention of the Seller’s Board of Directors after the date of this ~~Subsection 3.3(g)~~Agreement, if the ~~consideration~~ failure to ~~be paid~~ take such action is reasonably likely to result in ~~exchange for~~ a breach by the ~~Key Holder Shares or Investor Shares, as applicable, pursuant~~ Seller’s Board of Directors of its fiduciary obligations to ~~this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require~~ Seller’s stockholders under applicable ~~law~~ Law; and provided further, however, that neither the Seller nor the Seller’s Board of Directors may take any of the actions described in clauses (x1) and (2) of the ~~registration or qualification~~ immediately preceding proviso unless the Seller shall have received an Acquisition Proposal that has not been withdrawn as of the time of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender action of the ~~Key Holder Shares or Investor Shares, as applicable, which would~~ Seller’s Board of Directors and the Seller’s Board of Directors shall have ~~otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as~~ reasonably determined in good ~~faith by~~ faith, after taking into consideration the ~~Board)~~ advice of ~~the securities which~~ and consultation with an investment banking firm of national reputation, that such ~~Key Holder~~ Acquisition Proposal constitutes or ~~Investor would otherwise receive as of the date of the issuance of such securities~~ is reasonably likely to result in ~~exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to~~ a ~~SPAC Transaction~~Superior Offer. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 2 contracts

Sources: Merger Agreement (Midwest Banc Holdings Inc), Merger Agreement (Midwest Banc Holdings Inc)

Exceptions. ~~Notwithstanding~~ The restrictions set forth in this Agreement shall not apply to (1) any transfers to any stockholder, partner or member of, or owner of a similar equity interest in, Purchaser, as the ~~foregoing~~case may be, ~~a Stockholder will~~ if, in any such case, such transfer is not ~~be required to comply with Section 3.2 above in connection with~~ for value, or (2) any ~~proposed Sale of the Company (the “Proposed Sale”) unless:~~ transfer made by Purchaser (a) ~~any representations and warranties to be made by such Stockholder~~ in connection with the ~~Proposed Sale are limited to representations and warranties~~ sale or other bona fide transfer in a single transaction or series of related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear transactions of all ~~liens and encumbrances~~or substantially all of Purchaser’s capital stock or other similar equity interests, ~~(ii)~~ as the ~~obligations~~ case may be, or all or substantially all of Purchaser’s assets, in any such case not undertaken for the ~~Stockholder in connection with~~ purpose of avoiding the ~~transaction have been duly authorized, if applicable, (iii) the documents to be entered into~~ restrictions imposed by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach this agreement or ~~violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency;~~ (b) ~~such Stockholder shall have no obligation~~ to ~~execute~~ another corporation, partnership, limited liability company or ~~otherwise agree to any restrictive covenant in connection with~~ other business entity so long as the ~~Proposed Sale~~ transferee is an affiliate (~~including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale~~as defined below) ~~or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder~~ of the ~~Company; provided that, the foregoing shall~~ undersigned and such transfer is not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Salevalue; provided, however, ~~that, notwithstanding~~ that it shall be a condition to the ~~foregoing provisions~~ transfer that in the case of ~~this Subsection 3.3(g)~~any transfer described in clause (1) above, if ~~the consideration~~ Purchaser is required to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require file a report under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the BoardSection 16(a) of the ~~securities which such Key Holder~~ Securities Exchange Act of 1934, as amended, reporting a reduction in beneficial ownership of shares of Common Stock or ~~Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder~~ Beneficially Owned Shares or ~~Investor Shares~~any securities convertible into or exercisable or exchangeable for Common Stock or Beneficially Owned Shares during the Restriction Period, ~~as applicable; provided,~~ the undersigned shall include a statement in such report to the effect that, ~~clause~~ (ivA) ~~above shall not apply to a SPAC Transaction. (h) subject~~ in the case of any transfer pursuant to clause (e2) above, ~~requiring~~ such transfer is being made to a stockholder, partner or member of, or owner of a similar equity interest in, the ~~same form of consideration to be available to~~ EXECUTION VERSION undersigned and is not a transfer for value, or (B) in the ~~holders~~ case of any ~~single class or series of capital stock~~transfer pursuant to clause (2) above, ~~if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of~~ such ~~capital stock will be given the same option; and~~ transfer is being made either (ia) ~~such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant~~ in connection with the ~~Proposed Sale~~ sale or other bona fide transfer in a single transaction of all or substantially all of the undersigned’s capital stock, partnership interests, membership interests or other similar equity interests, as the case may be, or all or substantially all of the undersigned’s assets or (~~including without limitation any covenant~~ b) to another corporation, partnership, limited liability company or other business entity that is an affiliate of the undersigned and such transfer is not ~~to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale)~~for value.

Appears in 2 contracts

Sources: Common Stock Purchase Agreement, Common Stock Purchase Agreement (Fibrogen Inc)

Exceptions. Notwithstanding anything to the ~~foregoing~~contrary contained in this Agreement, at any time prior to the time the Company Stockholder Approval is obtained, the Company and its Representatives may in response to a ~~Stockholder will~~ bona fide Acquisition Proposal received after the date of this Agreement that did not ~~be required~~ rise from a material breach of the obligations set forth in this Section 5.3 may (i) provide information in response to ~~comply~~ a request therefor by a Person who has executed and delivered a confidentiality agreement on terms that, taken as a whole, are not materially less restrictive to the other party than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement need not contain a standstill provision or otherwise prohibit the making, or amendment, of an Acquisition Proposal (any confidentiality agreement satisfying the criteria of this clause (b) being an “Acceptable Confidentiality Agreement”)); provided, that such information has previously been made available to, or is made available to, Parent prior to or substantially concurrently (and in any event within twenty-four (24) hours) with the time it is made available to such Person; (ii) engage or participate in any discussions or negotiations with any Person who has made such an Acquisition Proposal, subject to such Person agreeing to an Acceptable Confidentiality Agreement; or (iii) after having complied with Section ~~3.2~~ 5.3(e), authorize, adopt, approve, recommend or otherwise declare advisable or propose to authorize, adopt, approve, recommend or declare advisable (publicly or otherwise) such an Acquisition Proposal, if and only to the extent that, (A) prior to taking any action described in clause (i), (ii), or (iii) above, the Company Board determines in good faith (after consultation with its outside legal counsel and independent financial advisor) that failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law, and (B) in each such case referred to in clause (i), (ii), or (iii) above the Company Board determines in ~~connection~~ good faith (after consultation with its outside legal counsel and independent financial advisor) based on the information then available that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal. Any breach by the directors, officers or attorneys of the Company or any ~~proposed Sale~~ of the Company Subsidiaries, or the Company Financial Advisor or any other Representative of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of at the Company’s ~~stock will receive the same form~~ direction), of ~~consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii~~this Section 5.3(b) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in deemed a ~~Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with~~ breach hereof by the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 2 contracts

Sources: Merger Agreement (Alimera Sciences Inc), Merger Agreement (Ani Pharmaceuticals Inc)

Exceptions. (1) Subject to Section 12(B)(1)(c), the Board of Directors, in its sole discretion, may exempt a Person from the limitation on a Person Beneficially Owning Class A Preferred Stock in excess of the Ownership Limit if the Board of Directors obtains such representations and undertakings from such Person as are reasonably necessary to ascertain that no individual's Beneficial Ownership or Constructive Ownership of such Class A Preferred Stock will violate the Ownership Limit or that any such violation will not cause the Corporation to fail to qualify as a REIT under the Code, and agrees that any violation of such representations or undertaking (or other action which is contrary to the restrictions contained in Section 12(B) of these Articles Supplementary) or attempted violation will result in such Class A Preferred Stock being transferred to a Trust in accordance with Section 12(B)(2) of these Articles Supplementary. (2) Subject to Section 12(B)(1)(c), the Board of Directors, in its sole discretion, may exempt a Person from the limitation on a Person Constructively Owning Class A Preferred Stock in excess of the Ownership Limit if such Person does not and represents that it will not own, actually or Constructively, an interest in a tenant of the Corporation (or a tenant of any entity owned in whole or in part by the Corporation) that would cause the Corporation to own, actually or Constructively more than a 9.8% interest (as set forth in Section 856(d)(2)(B) of the Code) in such tenant and the Corporation obtains such representations and undertakings from such Person as are reasonably necessary to ascertain this fact and agrees that any violation or attempted violation will result in such Class A Preferred Stock being transferred to a Trust in accordance with Section 12(B)(2) of these Articles Supplementary. Notwithstanding the foregoing, the inability of a ~~Stockholder will~~ Person to make the certification described in this Section 12(I)(2) shall not ~~be required to comply with Section 3.2 above~~ prevent the Board of Directors, in ~~connection with any proposed Sale~~ its sole discretion, from exempting such Person from the limitation on a Person Constructively Owning Class A Preferred Stock in excess of the ~~Company (~~Ownership Limit if the ~~“Proposed Sale”~~Board of Directors determines that the resulting application of Section 856(d)(2)(B) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the ~~Stockholder in connection with~~ Code would affect the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery characterization of ~~documents to be entered into in connection with the transaction, nor the performance~~ less than 0.5% of the ~~Stockholder’s obligations thereunder, will cause a breach or violation~~ gross income (as such term is used in Section 856(c)(2) of the ~~terms~~ Code and analogous provisions of ~~any agreement, law or judgment, order or decree of any court or governmental agency; (b~~applicable state law) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the ~~Company; provided that~~Corporation in any taxable year, after taking into account the ~~foregoing shall not limit any requirement contained in a definitive agreement~~ effect of this sentence with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or all other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Class A Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which ~~the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for~~ this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transactionsentence applies. (h3) ~~subject~~ Prior to ~~clause~~ granting any exception pursuant to Sections 12(I)(1) or (e2) ~~above~~of these Articles Supplementary, ~~requiring~~ the ~~same~~ Board of Directors may require a ruling from the Internal Revenue Service, or an opinion of counsel, in either case in form ~~of consideration to be available~~ and substance satisfactory to the ~~holders~~ Board of ~~any single class~~ Directors in its sole discretion, as it may deem necessary or ~~series of capital stock, if any holders of any capital stock of~~ advisable in order to determine or ensure the ~~Company are given an option as to the form and amount of consideration to be received~~ Corporation's status as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale)REIT.

Appears in 2 contracts

Sources: Rights Agreement (Arden Realty Inc), Rights Agreement (Realty Income Corp)

Exceptions. Notwithstanding the foregoing: (i) Without the prior written consent of the Majority Series G Holders, no Series G Stockholder that is a Drag Along Stockholder will ~~not~~ be required to comply with Section ~~3.2~~ 4.2(a) above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless each Series G Stockholder would reasonably be expected to receive, in connection with such Proposed Sale, an amount in respect of each share of Series G Preferred Stock held by such Series G Stockholder at least equal to the Series G Liquidation Preference (as defined in the Charter); and (ii) No Drag-Along Stockholder will be required to comply with Section 4.2(a) above in connection with any Proposed Sale unless: (aA) any representations and warranties to be made by such Drag-Along Stockholder (other than representations and warranties being made by a Drag-Along Stockholder in his or her capacity as a current or former employee of or consultant to the Company) in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership of the shares of Common Stock and/or Preferred Stock held by such Drag-Along Stockholder and the ability to convey title to such Shares, including but not limited to representations and warranties that (i1) the Drag-Along Stockholder holds all right, title and interest in and to the Shares such Drag-Along Stockholder purports to hold, free and clear of all liens and encumbrances, (ii2) the obligations of the Drag-Along Stockholder in connection with the transaction have been duly authorized, if applicable, (~~iii~~3) the documents to be entered into by the Drag-Along Stockholder have been duly executed by the Drag-Along Stockholder and delivered to the acquirer and are enforceable against the Drag-Along Stockholder in accordance with their respective terms and (iv4) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Drag-Along Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental ~~agency~~agency applicable to such Drag-Along Stockholder; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (dB) the Drag-Along Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other ~~Person~~ person in connection with the Proposed ~~Sale,~~ Sale other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all ~~stockholders~~stockholders (an “Escrow”)); (eC) ~~the~~ liability for indemnification, if any, of ~~such~~ the Drag-Along Stockholder ~~in the Proposed Sale and~~ for the inaccuracy of any representations and ~~warranties~~ warranties, or for the breach of any covenant, made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other ~~Person~~ person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), Escrow) and is pro rata in proportion to to, and does not exceed, the ~~amount~~ aggregate consideration receivable by such Drag-Along Stockholder (whether directly or out of ~~consideration paid to such Stockholder~~ an Escrow) in ~~connection with such~~ the Proposed ~~Sale (in accordance with the provisions of the Restated Certificate)~~Sale; (fD) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration ~~otherwise payable~~ actually paid to such Drag-Along Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Drag-Along Stockholder, the liability for which need not be limited as to such Drag-Along Stockholder; (gE) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences and amounts to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a ~~Deemed~~ Liquidation Event (assuming for this purpose that the Proposed Sale is a ~~Deemed~~ Liquidation ~~Event~~Event even if it is structured as a Stock Sale) in accordance with the ~~Company’s Certificate of Incorporation~~ Charter in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (iF) ~~such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with~~ the Proposed Sale does not result in such Preferred Stockholder (~~including without limitation~~ or affiliate thereof) having any obligation to agree to any: (i) covenant not to ~~compete or~~ compete; (ii) covenant not to solicit customers, employees or suppliers of any party to the Proposed ~~Sale~~Sale (or affiliate thereof); or (iii) covenant to amend, modify or terminate any contracts or commercial arrangements to which such Preferred Stockholder (or affiliate thereof) is a party.

Appears in 2 contracts

Sources: Stockholders Agreement, Stockholders Agreement (Neuronetics, Inc.)

Exceptions. Notwithstanding the foregoing, a Stockholder will not be required to comply with Section ~~3.2~~ 4.1 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Stockholder’s Shares, ~~including but not limited to~~ including, without limitation, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the ~~acquirer~~ acquiror and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental ~~agency~~agency by which such Stockholder is subject or bound; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other ~~Person~~ person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (ec) no Stockholder other than an employee or consultant of the Company shall be required to agree to any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale. (d) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other ~~Person~~ person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and, subject to any provisions of the Company’s Amended and Restated Certificate of Incorporation regarding the allocation of an escrow, is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the ~~Restated Certificate~~Certificate of Incorporation); (fe) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the ~~Restated Certificate~~Certificate of Incorporation) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (gf) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of ~~a series of~~ Series D Preferred Stock will receive the same amount of consideration per share of ~~such series of~~ Series D Preferred Stock as is received by other holders in respect of their shares of ~~such~~ Series D Preferred Stock, each holder of Series C Preferred Stock will receive the same ~~series~~amount of consideration per share of Series C Preferred Stock as is received by other holders in respect of their shares of Series C Preferred Stock, each holder of Series B Preferred Stock will receive the same amount of consideration per share of Series B Preferred Stock as is received by other holders in respect of their shares of Series B Preferred Stock, each holder of Series A Preferred Stock will receive the same amount of consideration per share of Series A Preferred Stock as is received by other holders in respect of their shares of Series A Preferred Stock and each holder of Series Seed Preferred Stock will receive the same amount of consideration per share of Series Seed Preferred Stock as is received by other holders in respect of their shares of Series Seed Preferred Stock, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) ~~unless~~ the payment with respect to each Share is an amount at least equal to the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) amount payable in accordance with the ~~Company’s~~ Certificate of ~~Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g)~~Incorporation, if such Proposed Sale were deemed a Liquidation Event therein, and is allocated among the ~~consideration to be paid~~ Stockholders in ~~exchange for~~ accordance with the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification Certificate of ~~such securities or of any person as a broker or dealer or agent with respect to such securities~~Incorporation; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction.and (hg) subject to ~~clause (e~~subsection 4.2(f) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of ~~any~~ a series or class of capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such series or class of capital stock will be given the same option; ~~and (i~~provided, however, that nothing in this subsection 4.2(g) shall entitle any holder to receive any form of consideration that such ~~Stockholder~~ holder would be ineligible to receive as a result of such holder’s failure to satisfy any condition, requirement or limitation that is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party generally applicable to the ~~Proposed Sale)~~Company’s stockholders.

Appears in 2 contracts

Sources: Voting Agreement (Lemonade, Inc.), Voting Agreement (Lemonade, Inc.)

Exceptions. Notwithstanding the foregoing, a ~~Stockholder~~ Shareholder will not be required to comply with Section ~~3.2 above~~ 5.01(a) in connection with any proposed ~~Sale~~ Change of ~~the Company (the “Proposed Sale”)~~ Control Transaction unless: (ai) any representations and warranties to be made by such ~~Stockholder~~ Shareholder in connection with the ~~Proposed Sale~~ proposed Change of Control Transaction are limited to representations and warranties related to authority, ownership and the ability to convey title to such ~~Shares~~Securities, ~~including~~ including, but not limited to to, representations and warranties that (iA) the ~~Stockholder~~ Shareholder holds all right, title and interest in and to the ~~Shares~~ Securities such ~~Stockholder~~ Shareholder purports to hold, free and clear of all liens and encumbrances, (iiB) the ~~obligations~~ obli- gations of the ~~Stockholder~~ Shareholder in connection with the transaction have been duly authorized, if applicable, (~~iii~~C) the documents to be entered into by the ~~Stockholder~~ Shareholder have been duly executed by the ~~Stockholder~~ Shareholder and delivered to the acquirer and are enforceable against the ~~Stockholder~~ Shareholder in accordance with their respective ~~terms~~ terms; and (ivD) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the ~~Stockholder~~Shareholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (dii) the ~~Stockholder~~ Shareholder shall not be liable for the inaccuracy of any representation or warranty made by any other ~~Person~~ person in connection with the ~~Proposed Sale~~proposed Change of Control Transaction, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any ~~stockholder~~ Shareholder of any of identical representations, warranties and covenants provided by all ~~stockholders~~Shareholders); (eiii) the liability for indemnification, if any, of such ~~Stockholder~~ Shareholder in the ~~Proposed Sale~~ proposed Change of Control Transaction and for the inaccuracy of any representations and warranties made by the Company or its Shareholders in connection with such ~~Proposed Sale~~proposed Change of Control Transaction, is several and not joint with any other ~~Person~~ person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any ~~stockholder~~ Shareholder of any of identical representations, warranties and covenants provided by all ~~stockholders~~Shareholders), and is pro rata in proportion to to, and does not exceed, the amount of consideration paid to such ~~Stockholder~~ Shareholder in connection with such ~~Proposed Sale (in accordance with the provisions~~ proposed Change of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed SaleControl Transaction, except with respect to claims related to fraud by such ~~Stockholder~~Shareholder, the liability for which need not be limited as to such ~~Stockholder;~~Shareholder; and (giv) upon the consummation of the ~~Proposed Sale,~~ proposed Change of Control Transaction (iA) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of ~~stock~~stock (except as set forth in Section 5.01(a)(vi) above), and (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a ~~Deemed Liquidation Event~~ transaction deemed to be a liquidation, dissolution or winding up of the Company pursuant to the Company's Certificate of Incorporation (assuming for this purpose that the ~~Proposed Sale~~ proposed Change of Control Transaction is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration transaction deemed to be ~~paid in exchange for the Key Holder Shares~~ a liquidation, dissolution or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock winding up of the Company ~~are given an option as~~ pursuant to the ~~form and amount~~ Company's Certificate of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed SaleIncorporation).

Appears in 2 contracts

Sources: Shareholder Agreement, Shareholder Agreements

Exceptions. Notwithstanding the foregoing, a ~~Stockholder will~~ Voting Party shall not be required to comply with Section ~~3.2~~ 7(b) above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (ai) any representations and warranties to be made by such ~~Stockholder~~ Voting Party in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (iA) the ~~Stockholder~~ Voting Party holds all right, title and interest in and to the Shares such ~~Stockholder~~ Voting Party purports to hold, free and clear of all liens and encumbrances, (iiB) the obligations of the ~~Stockholder~~ Voting Party in connection with the transaction have been duly authorized, if applicable, (~~iii~~C) the documents to be entered into by the ~~Stockholder~~ Voting Party have been duly executed by the ~~Stockholder~~ Voting Party and delivered to the acquirer and are enforceable against the ~~Stockholder~~ Voting Party in accordance with their respective terms and (ivD) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the ~~Stockholder~~Voting Party’s obligations thereunder, ~~will~~ shall cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (dii) the ~~Stockholder~~ Voting Party shall not be liable for the inaccuracy of any representation or warranty made by any other ~~Person~~ person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (eiii) the liability for indemnification, if any, of such ~~Stockholder~~ stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other ~~Person~~ person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such ~~Stockholder~~ Voting Party in connection with such Proposed Sale (in accordance with the provisions of the ~~Restated~~ Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (giv) upon the consummation of the Proposed Sale, (iA) each holder of each class or series of the Company’s stock ~~will~~ shall receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (iiB) each holder of a series of Preferred Stock ~~will~~ shall receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (~~iii~~C) each holder of Common Stock ~~will~~ shall receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (ivD) unless the holders of at least sixty percent (60%) of the voting power of the outstanding shares of Preferred Stock elect otherwise by written notice given to the Company at least 5 days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a ~~Deemed~~ Liquidation Event (assuming for this purpose that the Proposed Sale is a ~~Deemed~~ Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction.and (hv) subject to clause (eiv) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock ~~will~~ shall be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 2 contracts

Sources: Voting Agreement (Prosper Marketplace Inc), Voting Agreement (Prosper Marketplace Inc)

Exceptions. Notwithstanding anything in this Agreement to the ~~foregoing~~contrary, ~~a Stockholder will~~ at any time prior to, but not ~~be required to comply~~ after, the approval and adoption of this Agreement by the Company’s stockholders, the Company, directly or indirectly through its Representatives, may, as long as the Company, its Subsidiaries and their Representatives shall not have breached or taken any action inconsistent with Section ~~3.2 above~~ 6.03(a), (i) engage in ~~connection~~ negotiations or discussions with any ~~proposed Sale~~ Third Party and its Representatives that has made after the date of this Agreement a Company Acquisition Proposal that the Board of Directors of the Company ~~(the “Proposed Sale”) unless: (a) any representations and warranties~~ reasonably believes constitutes or would reasonably be expected to ~~be made by such Stockholder in connection with the Proposed Sale are limited~~ lead to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrancesa Superior Proposal, (ii) ~~the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents~~ furnish to ~~be entered into by the Stockholder have been duly executed by the Stockholder and delivered~~ such Third Party or its Representatives non-public information relating to the ~~acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery~~ Company or any of ~~documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach~~ its Subsidiaries or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party afford access to the ~~Proposed Sale)~~ business, properties, assets, books or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers records of the Company ~~be bound by a non-compete~~ or ~~similar restrictive covenant or a release~~ any of ~~claims~~ its Subsidiaries to such Third Party, in each case pursuant to a customary confidentiality agreement (which confidentiality agreement shall not prohibit the ~~definitive agreements in connection~~ Company or its Subsidiaries from providing any information to Parent required by this Section 6.03) with such ~~Proposed Sale; (c) such Stockholder and its Affiliates are not required~~ Third Party with terms no less favorable to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder those contained in the ~~Proposed Sale~~ Confidentiality Agreement (and ~~for the inaccuracy of~~ in any ~~representations and warranties made by the Company in connection with such Proposed Sale~~event, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholderswhich includes a customary standstill provision), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, ~~that~~that all such information (to the extent that such information has not been previously provided or made available to Parent) is provided or made available to Parent prior to or substantially concurrently with the time it is provided or made available to such Third Party, ~~notwithstanding~~ subject to the right of the Company to withhold information where such disclosure would contravene any Applicable Law and (iii) take any nonappealable, final action that any court of competent jurisdiction orders the Company to take, in each case referred to in the foregoing ~~provisions of this Subsection 3.3(g)~~subclauses, (i) and (ii) only if the ~~consideration~~ Board of Directors of the Company determines in good faith, after consultation with outside legal counsel and its financial advisors, that the failure to take such action could reasonably be determined to be ~~paid in exchange for~~ inconsistent with its fiduciary duties under Applicable Law. Nothing contained herein shall prevent the ~~Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law~~ Board of Directors of the Company from (x) complying with Rule 14e-2(a) under the ~~registration~~ 1934 Act with regard to a Company Acquisition Proposal so long as any action taken or ~~qualification of such securities or of any person as a broker or dealer or agent~~ statement made to so comply is consistent with ~~respect to such securities; or~~ this Section 6.03, (y) making any disclosure to the ~~provision~~ Company’s stockholders if, in the good faith judgment of the Board of Directors of the Company, after receipt of advice from its outside counsel, failure to ~~any Key Holder~~ so disclose could reasonably be determined to be inconsistent with its fiduciary duties or ~~Investor~~ Applicable Law, or (z) issuing a “stop, look and listen” disclosure or similar communication of ~~any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated~~ the type contemplated by Rule 14d-9(f) under the ~~Securities~~ 1934 Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 2 contracts

Sources: Merger Agreement (Conmed Healthcare Management, Inc.), Merger Agreement (Conmed Healthcare Management, Inc.)

Exceptions. ~~Notwithstanding~~ The provisions of Section 6.01 shall not apply to: (i) disclosure by a Party to a Representative or an Affiliate if such Representative or Affiliate (a) is under a similar obligation of confidentiality or (b) is otherwise under a binding professional obligation of confidentiality; (ii) disclosure, after giving prior notice to the ~~foregoing~~other Parties to the extent practicable under the circumstances and subject to any practicable arrangements to protect confidentiality, to the extent requested or required under the rules of any stock exchange on which the Equity Securities of a ~~Stockholder will not be required to comply with Section 3.2 above~~ Party or any of its Affiliates are listed or by Laws or governmental regulations or judicial or regulatory process or in connection with any ~~proposed Sale~~ proceeding arising out of or relating to this Agreement; provided that no prior notice to any Party shall be required to be given under this Section 6.02 with respect to any Proceeding commenced or brought by a Party in pursuit of its rights or in the exercise of its remedies arising out of this Agreement or any other Transaction Document; (iii) disclosure by the Investors to a financing source in connection with a bona fide loan or financing arrangement, if the recipient agrees in writing prior to any such disclosure to be subject to confidentiality obligations substantially similar to those set forth in this Article VI; (iv) following notification in writing to the Company on a no names basis, disclosure by any Investor to a bona fide potential purchaser of any portion or all of the Equity Securities of the Company (held by such Investor to the ~~“Proposed Sale”) unless:~~extent necessary for such potential purchaser to evaluate such a proposed transaction or for other similar business purposes, if the recipient agrees in writing prior to any such disclosure to be subject to confidentiality obligations substantially similar to those set forth in this Article VI, of which the Company is a third-party beneficiary; or (av) ~~any representations and warranties to be made~~ disclosure by ~~such Stockholder~~ the Investors or its Affiliates of Confidential Information that is reasonably necessary in connection with its reporting requirements to its shareholders, limited partners and/or director or indirect investors in the ~~Proposed Sale are limited to representations and warranties related to authority~~ordinary course of business in each case, ~~ownership and~~ so long as the ~~ability to convey title to~~ Persons being disclosed such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations information have been advised of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, confidential nature of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).information

Appears in 2 contracts

Sources: Investors’ Rights Agreement (Joy Capital Opportunity, L.P.), Investors’ Rights Agreement (Eve One Fund II L.P.)

Exceptions. Notwithstanding the ~~foregoing~~forgoing, a ~~Stockholder~~ Large Holder will not be required to comply with Section ~~3.2 above~~ 2.1(b) in connection with any proposed ~~Sale of the Company~~ Liquidation Transaction (~~the~~ a “Proposed ~~Sale~~Transaction”) unless: (a) any representations and warranties to be made by such ~~Stockholder~~ Large Holder in connection with the Proposed ~~Sale~~ Transaction are limited to representations and warranties related to authority, ownership of the Shares held by such Large Holder and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the ~~Stockholder~~ Large Holder holds all right, title and interest in and to the ~~Shares~~ Corporation’s securities such ~~Stockholder~~ Large Holder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the ~~Stockholder~~ Large Holder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the ~~Stockholder~~ Large Holder have been duly executed by the ~~Stockholder~~ Large Holder and delivered to the acquirer and are enforceable against the ~~Stockholder~~ Large Holder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the ~~Stockholder~~Large Holder’s obligations thereunder, will cause a breach or violation of the terms of any ~~agreement,~~ agreement of the Large Holder or any law or judgment, order or decree of any court or governmental ~~agency~~agency specially applicable to the Large Holder; (b) ~~such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with~~ the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder Large Holder shall not be liable for the inaccuracy of any representation or warranty made by any other ~~Person~~ person in connection with the Proposed ~~Sale~~Transaction, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders)Corporation; (ec) the liability for indemnification, if any, of such ~~Stockholder~~ Large Holder in the Proposed ~~Sale~~ Transaction and for the inaccuracy of any representations and warranties made by the ~~Company~~ Corporation in connection with such Proposed ~~Sale~~Transaction, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders)person, and is pro rata in ~~proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in~~ accordance with the ~~provisions~~ portion of the ~~Restated Certificate)~~proceeds received by such Large Holder in the Proposed Transaction; (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (gd) upon the consummation of the Proposed ~~Sale~~Transaction, (i) ~~each~~ every holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Series B Preferred Stock will receive the same amount of consideration per share of ~~such series~~ Series B Preferred Stock, (ii) every holder of Series A Preferred Stock ~~as is received by other holders in respect~~ will receive the same amount of ~~their shares~~ consideration per share of ~~such same series~~Series A Preferred Stock, and (iii) ~~each~~ every holder of Common Stock will receive the same amount of consideration per share of Common ~~Stock as is received by other holders in respect of their shares of Common~~ Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 2 contracts

Sources: Stockholders Agreement (KonaRed Corp), Stockholders Agreement (Willsey Gregory Thomas)

Exceptions. Notwithstanding any other provision set forth in this Agreement to the ~~foregoing~~contrary, the restrictions on transfer set forth in this Section 303 shall not apply and City approval of a ~~Stockholder will~~ transfer shall not be required ~~to comply with Section 3.2 above~~ in connection with any ~~proposed Sale~~ of the ~~Company (the “Proposed Sale”) unless~~following: (a) Any mortgage, deed of trust, or other form of conveyance for financing or refinancing Developer’s direct and indirect costs to acquire the City Parcels and develop the Project thereon, as provided in Section 713, provided that Developer shall notify City in advance of any ~~representations~~ such mortgage, deed of trust, or other form of conveyance for financing pertaining to the City Parcels, and ~~warranties~~ further provided that the amount of indebtedness incurred in restructuring or refinancing shall not exceed 75% of the outstanding balance on the debt incurred to ~~be made~~ finance the direct and indirect costs to acquire the Agency Parcels and the City Parcels and the costs to develop the Project thereon and any additional sums (including reasonable costs incurred with respect to such restructuring or refinancing) to complete the same. (b) The conveyance or dedication of any portion of the City Parcels to the City or other appropriate governmental agency, or the granting of easements or Permits to facilitate the development of the City Parcels. (c) A sale or transfer of 50% or more of ownership or control interest between members of the same family; or transfers to a trust, testamentary or otherwise, in which the beneficiaries consist solely of members of the trustor’s family; or transfers to a corporation or partnership or other legal entity in which the members of the transferor’s family have a controlling majority interest of 51% or more. (d) A conveyance of the Site to any entity which is wholly owned or controlled by ~~such Stockholder~~ Developer, or any entity owned and controlled by any one of ▇▇▇▇▇▇ Seco Development Group, LLC, Los Altos XVII, LP or their respective members, partners, managers general partners or principals (each a “Developer Affiliate”). (e) Any transfer as a result of or in connection with the ~~Proposed Sale are limited~~ judicial or non- judicial foreclosure, consensual sale (such as a deed in lieu of foreclosure) or transfer arising from or relating to ~~representations~~ a holder of a mortgage loan or deed of trust exercising its remedies under such lien (provided that the same was permitted under this Agreement), and ~~warranties related to authority, ownership and~~ in the ~~ability to convey~~ event that such holder of a mortgage loan or deed of trust (or its affiliate) acquires title to ~~such Shares~~the Site, ~~including but~~ the City shall not ~~limited~~ have any right to ~~representations and warranties that (i) the Stockholder holds all right~~approve or disapprove any transfer, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach sale or ~~violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree~~ conveyance to any ~~restrictive covenant in connection with~~ other party or parties acquiring the ~~Proposed Sale (including without limitation any covenant not to compete~~ Site from such holder of a mortgage loan or ~~covenant not to solicit customers~~deed of trust; provided, ~~employees or suppliers of~~ however that any party to or parties acquiring the ~~Proposed Sale)~~ Site from such holder of a mortgage loan or ~~any release~~ deed of ~~claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of~~ trust shall assume the ~~Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company~~ rights and obligations and be bound ~~by a non-compete or similar restrictive covenant or a release of claims pursuant to~~ under the ~~definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend~~terms, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties conditions and covenants of ~~the Company~~ this Agreement as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transactionthough they were parties hereto. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 2 contracts

Sources: Disposition and Development Agreement, Disposition and Development Agreement

Exceptions. Notwithstanding the ~~foregoing~~foregoing provisions of this Section 9.5 (provided, however, that nothing in the following clauses shall permit the Company to effect a ~~Stockholder will not be required to comply with Section 3.2 above in connection with~~ transaction, disposition, or transfer that is prohibited by the Pledge Agreement): (i) any ~~proposed Sale~~ Subsidiary of the Company (may be merged or consolidated with or into, or have its assets liquidated and distributed to, the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) Company or any ~~release of claims~~ other ~~than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder~~ Subsidiary of the Company; ~~provided that, the foregoing~~ PROVIDED that (x) if any such merger or consolidation shall ~~not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company~~ be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the ~~acquirer~~ Company shall be the Person surviving such merger or ~~their respective Affiliates~~consolidation, ~~except that the Stockholder may~~ (y) if any such merger or consolidation shall be ~~required to agree to terminate the investment-related documents~~ between ~~or among such Stockholder,~~ any Subsidiary of the Company ~~and/or other stockholders~~ and a Wholly Owned Subsidiary of the Company, such Wholly Owned Subsidiary shall be the Person surviving such merger or consolidation, (z) if any such merger or consolidation shall be between a Subsidiary Guarantor and a Subsidiary of the Company that is not a Subsidiary Guarantor (other than Genzyme Securities Corporation), and such Subsidiary Guarantor is not the continuing or surviving Person, then the continuing or surviving Person shall have assumed all of the obligations of such Subsidiary Guarantor hereunder and under the other Loan Documents and (aa) if any such merger or consolidation shall be between Genzyme Securities Corporation and a Subsidiary of the Company that is not a Subsidiary Guarantor, and Genzyme Securities Corporation is not the continuing or surviving Person, then the Company and its Subsidiaries shall, or shall cause the holder of the stock in such continuing or surviving Person, to execute and deliver a Pledge Agreement in substantially the form of EXHIBIT G, together with the certificates for all shares of capital stock of the continuing or surviving Person pledged thereunder and undated stock powers; (dii) the ~~Stockholder shall not be liable for~~ Company and its Subsidiaries may acquire any assets used or useful in the ~~inaccuracy~~ lines of business permitted under Section 9.10 or the stock or other equity interests or rights as a holder of indebtedness of any ~~representation~~ Person that is engaged in a line of business permitted to the Company under Section 9.10 or ~~warranty made by~~ merge any ~~other~~ Person that is in ~~connection~~ a line or lines of business permitted under Section 9.10 with the ~~Proposed Sale, other than~~ Company or a Subsidiary or the Company or a Subsidiary with any such Person (~~except to~~ provided that the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder conditions in the ~~Proposed Sale and for the inaccuracy of any representations and warranties made by the Company~~ provisos in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (fSection 9.5(d)(i) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent satisfied with respect to such ~~securities; or (y~~merger) provided that at the ~~provision to any Key Holder or Investor~~ time of the consummation of any ~~information other than~~ such ~~information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act~~transaction and after giving effect thereto, the Company ~~may cause to~~ shall be ~~paid to any such Key Holder or Investor~~ in ~~lieu thereof, against surrender of~~ compliance with the ~~Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount~~ covenants in ~~cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive~~ Section 9.9 as of the ~~date~~ end of the ~~issuance~~ most recent fiscal quarter or annual period of the Company and the transaction will not be reasonably likely to result in the noncompliance with such ~~securities~~ financial covenants; (iii) the Company or any of its Subsidiaries may purchase inventory and other Property to be sold or used in ~~exchange for~~ the ~~Key Holder Shares or Investor Shares~~ordinary course of business, ~~as applicable; provided, that, clause~~ make Investments permitted by Section 9.8 hereof and make Capital Expenditures in the ordinary course of its business; (iv) ~~above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, requiring~~ the ~~same form of consideration to be available to the holders of~~ Company or any ~~single class or series of capital stock, if any holders of any capital stock~~ Subsidiary of the Company ~~are given an option as~~ may convey, sell, lease, loan, transfer or otherwise dispose of any or all of its Property to the ~~form~~ Company or any other Subsidiary of the Company (and ~~amount~~ the Company or such other Subsidiary may acquire such Property); PROVIDED that if any such conveyance, sale, lease, loan, transfer or other disposition is to a Subsidiary (other than Genzyme Securities Corporation) that is not a Subsidiary Guarantor and relates to all or any material part of ~~consideration~~ the Property of the Company or a Subsidiary Guarantor, then the Company shall cause such transferee Subsidiary to ~~be received~~ assume, and such transferee Subsidiary shall assume, all of the obligations of the Company or such Subsidiary Guarantor hereunder and under the other Loan Documents; and PROVIDED, further, that the Company or such Subsidiary Guarantor shall remain fully obligated as an Obligor hereunder; (v) the Company or any Subsidiary may convey, sell, lease, transfer or otherwise dispose of any non-material Property (of the Company and its Subsidiaries, taken as a ~~result~~ whole) including equity interests in any Person and the licensing of ~~the Proposed Sale, all holders of such capital stock will be given the same option~~patents and product rights; and (ivi) ~~such Stockholder is not required to agree (unless such Stockholder is a~~ the Company ~~officer~~ or ~~employee) to~~ any ~~restrictive covenant in connection with the Proposed Sale (including without limitation~~ Subsidiary may lease or sublease any ~~covenant not to compete or covenant not to solicit customers, employees or suppliers~~ of ~~any party to the Proposed Sale)~~its real Property.

Appears in 2 contracts

Sources: Credit Agreement (Genzyme Corp), Credit Agreement (Genzyme Corp)

Exceptions. Notwithstanding Section 13.1, any Member may make disclosure of Confidential Information contemplated by clauses (a), (c) and (e) below and the ~~foregoing, a Stockholder will not be required~~ LLP may make the disclosure of Confidential Information contemplated by (a) through (e) below: (a) to ~~comply with Section 3.2 above~~ any Governmental Entity in connection with ~~any proposed Sale~~ applications for approval of the ~~Company~~ transactions contemplated hereby and the other Transaction Documents (or, in the ~~“Proposed Sale”~~case of any regulated-Affiliate of a Member, in connection with audits by the applicable Governmental Entities), (b) ~~unless: (a) any representations and warranties~~ to ~~be made by such Stockholder~~ financial institutions in connection with the ~~Proposed Sale are limited to representations and warranties related to authority~~financing transactions contemplated hereby, ~~ownership and~~ (c) in the ~~ability to convey title to such Shares~~case of any Member, ~~including but not limited to representations and warranties that~~ (i) ~~the Stockholder holds all right, title and interest~~ to a bona fide potential Transferee who is not a Competitor (as defined in ~~and~~ Section 9.5) if such Member desires to undertake any Transfer of its Membership Interests permitted by this Agreement (provided that such potential Transferee first executes a confidentiality agreement in such form reasonably acceptable to the ~~Shares such Stockholder purports to hold~~LLP), ~~free~~ and ~~clear of all liens and encumbrances,~~ (ii) to its direct and indirect stockholders, limited partners, members or other equityholders, as the ~~obligations~~ case may be, all materials made available to such Member pursuant to the terms of ~~the Stockholder~~ this Agreement, (d) to any rating or similar agency in connection with its analysis or review of the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms LLP or any of its Subsidiaries and (ive) ~~neither the execution and delivery of documents~~ to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person ~~in connection with the Proposed Sale~~if such party becomes compelled by Law (including by deposition, ~~other than the Company (except~~ interrogatory, request for documents, subpoena, civil investigative demand, mandatory provision of Law, regulation or stock exchange rule) to ~~the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants~~ disclose any of the ~~Company~~ Confidential Information. In addition, each Member may report to its stockholders, limited partners, members or other equityholders, as ~~well as~~ the case may be, the general status of such Member’s investment in the LLP (without disclosing specific Confidential Information). A disclosing Member shall be responsible for a breach by any ~~stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of~~ third Person to whom such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (disclosing Member discloses Confidential Information in accordance with the ~~provisions~~ terms of ~~the Restated Certificate);~~ Section 13.1 and subclause (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificatec)(ii) of ~~a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds~~ this Section 13.2. In the ~~amount~~ case of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, ~~requiring~~ the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and disclosing party shall (i) provide the other parties hereto with prompt written notice of such ~~Stockholder~~ requirement so that such non-disclosing parties may seek a protective order or other appropriate remedy or waive compliance with the terms of this Article XIII and (ii) take such reasonable legally available steps as the non-disclosing parties may reasonably request to resist or narrow such requirement (at the expense of the non-disclosing parties). In the event that such protective order or remedy is not obtained, or that the non-disclosing parties waive compliance with the terms hereof, the disclosing party agrees to furnish only that portion of the Confidential Information that it is advised by counsel is required to ~~agree~~ be furnished, and to exercise commercially reasonable efforts (~~unless such Stockholder is a Company officer or employee~~at the LLP’s expense) to ~~any restrictive covenant in connection~~ obtain assurance that confidential treatment shall be accorded such Confidential Information. The obligations with respect to Confidential Information in Section 13.1 and this Section 13.2 shall terminate two (2) years after a Person ceases to be a Member; provided, however, that the ~~Proposed Sale (including without limitation any covenant~~ obligation to maintain the confidentiality of “trade secrets” shall not ~~to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale)~~terminate.

Appears in 2 contracts

Sources: Limited Liability Partnership Agreement, Limited Liability Partnership Agreement (Delphi Automotive PLC)

Exceptions. Notwithstanding any provision of this Section 34(a) to the ~~foregoing~~contrary (other than with respect to the loss of Tax Savings for which a T-Mobile Group Member has reimbursed or credited Tower Operator under Section 34(c), ~~a Stockholder will~~ in which case only the exceptions listed in clauses (C), (F) and (G) shall apply), Tower Operator shall not be required to ~~comply~~ make any payment to any Tax Indemnitee in respect of any Tax Loss to the extent that any such Tax Loss occurs as a result of one or more of the following: (A) Other than as a result of an event or circumstance described in Section 34(a)(iii), the determination that this Agreement is not a “true lease” for federal income Tax purposes or that the members of the T-Mobile Group, directly or indirectly through one or more entities that are classified as partnerships or disregarded entities for federal income tax purposes, are not the owners or sublessors of the Included Property, or that Section 467 of the Code does not apply to this Agreement in accordance with ~~Section 3.2 above~~ its terms; (B) The voluntary sale, assignment, transfer or other disposition or the involuntary sale, assignment, transfer or other disposition attributable to the bankruptcy, insolvency or the breach of any covenant or obligation of the Tax Indemnitee set forth in the Transaction Documents of or by any such Tax Indemnitee or any of its Affiliates, in either case, of any of the Included Property or portion of such Included Property by any such Tax Indemnitee or any of its Affiliates other than a sale, assignment, transfer or disposition (1) contemplated by the Transaction Documents or to or at the request of Tower Operator; (2) otherwise resulting from the exercise by any T-Mobile Group Member of its rights or performance of its obligations under the Transaction Documents; or (3) in connection with ~~any proposed Sale~~ a default by Tower Operator or exercise of remedies under this Agreement; (C) The gross negligence or willful misconduct of such Tax Indemnitee; (D) Penalties, interest or additions to Tax to the extent based upon issues unrelated to the transactions contemplated by this Agreement and related documents; (E) Tower Operator’s exercise of the ~~Company (the “Proposed Sale”) unless:~~Purchase Option provided in Section 20 or Section 29(b)(i); (aF) The failure by the T-Mobile Group or any ~~representations~~ T-Mobile Group Member timely or properly to claim any Federal Income Tax Benefits or to exclude income on the appropriate Tax return other than in accordance with Section 34(a)(iii); (G) Any failure of the Tax Indemnitee to have taken all the actions, if any, required of it by Section 34(d) to contest the Loss and ~~warranties to be made by~~ such ~~Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and~~ failure materially prejudices the ability to ~~convey title to~~ contest, and Tower Operator had a reasonable basis for such ~~Shares~~contest; (H) Any change in the Code enacted, ~~including but not limited to representations and warranties that (i)~~ adopted or promulgated on or after the ~~Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations~~ date of the ~~Stockholder~~ Master Agreement; provided that this exclusion shall not apply to any substitution or replacement of any Included Property after a change in ~~connection with~~ Law; (I) The failure of the ~~transaction~~ T-Mobile Group, or any single T-Mobile Group Member, to have ~~been duly authorized~~sufficient income or Tax liability to benefit from the Federal Income Tax Benefits (it being understood that except as provided herein, ~~if applicable~~this exclusion shall not affect the amount of any indemnity to which an Indemnitee would otherwise be entitled); (J) The inclusion of income by a T-Mobile Group Member as a result of the reversion of Modifications made by Tower Operator to any T-Mobile Lessor at the end of the Term; (K) Other than as a result of an event or circumstance described in Section 34(a)(iii), ~~(iii)~~ a determination that T-Mobile is not holding the ~~documents to be entered~~ Included Property in the ordinary course of a trade or business or that T-Mobile did not enter into the transactions contemplated by the ~~Stockholder have been duly executed by~~ Transaction Documents for profit; (L) The existence of, or any consequence of, the ~~Stockholder~~ prepayment of the Rent, or the application of Section 467 of the Code or the Treasury regulations promulgated thereunder; provided that the Tower Operator makes all payments when due and ~~delivered to the acquirer and are enforceable against the Stockholder~~ accrues all rental expense in accordance with ~~their respective terms~~ the Proportional Rent as set forth in Exhibit D and ~~(iv) neither~~ provided, further, that this exclusion shall not apply to the ~~execution and delivery of documents to be entered~~ entry into ~~in connection with~~ a New Lease under Section 21 following the ~~transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a~~ default or breach ~~or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency~~by Tower Operator; (bM) ~~such Stockholder shall have no obligation to execute~~ Any Tax election or ~~otherwise agree to any restrictive covenant in connection~~ Tax Position by a T-Mobile Group Member that is inconsistent with the ~~Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party~~ Tax Assumptions to the ~~Proposed Sale~~extent of a resulting increase in the Tower Operator’s indemnity obligations hereunder; (N) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement A Tax Loss with respect to ~~such Proposed Sale that certain employees~~ any period occurring (1) before the Term with respect to a Site, (2) after (and not simultaneously with) the expiration or ~~officers~~ earlier termination of the ~~Company~~ Term with respect to a Site or (3) after (and not simultaneously with) the return to T-Mobile of the Included Property related to a Site, in each case other than interest, fines, penalties and additions to Tax resulting from a Tax Loss that would not be ~~bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale;~~excluded under this clause (N); and (cO) ~~such Stockholder and its Affiliates are not required to amend, extend~~ The breach or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any ~~representation~~ representation, warranty or ~~warranty made~~ covenant by any ~~other Person~~ T-Mobile Group Member in ~~connection with~~ any of the ~~Proposed Sale, other than the Company~~ Transaction Documents (except to the extent ~~that funds may be paid out of an escrow established~~ such breach or inaccuracy is attributed to ~~cover~~ a breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the or inaccuracy of any ~~representations and warranties made by the Company in connection with such Proposed Sale~~representation, ~~is several and not joint with any other Person (except to the extent that funds may be paid out~~ warranty or covenant of Tower Operator or an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated Affiliate under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed SaleTransaction Documents).

Appears in 2 contracts

Sources: Master Prepaid Lease (T-Mobile US, Inc.), Master Prepaid Lease (Crown Castle International Corp)

Exceptions. Notwithstanding anything herein to the ~~foregoing~~contrary, ~~a Stockholder will~~ at any time prior to the time, but not ~~be required to comply with Section 3.2 above in connection with any proposed Sale of~~ after, the Company (Requisite Vote is obtained, if the ~~“Proposed Sale”) unless: (a)~~ Company receives a written Acquisition Proposal from any ~~representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority~~person, ~~ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that~~ (i) the ~~Stockholder holds all right~~Company and its Representatives may provide non-public information and data concerning the Company and its subsidiaries in response to a request therefor by or on behalf of such person to such person, ~~title~~ its outside counsel, financial advisor(s), lenders or other financing sources and/or potential divestiture counterparties, so long as the Company receives from such person an executed confidentiality agreement on customary terms (it being understood that such confidentiality agreement need not prohibit the making or amendment of an Acquisition Proposal or otherwise contain any standstill or similar provision); provided that the Company shall promptly make available to Parent and ~~interest in and~~ Merger Sub any material non-public information concerning the Company or its subsidiaries that the Company made available to ~~the Shares~~ any person given such ~~Stockholder purports~~ access which was not previously made available to ~~hold, free and clear of all liens and encumbrances~~Parent or Merger Sub (unless precluded by Applicable Law), (ii) the ~~obligations of the Stockholder~~ Company and its Representatives may engage or participate in ~~connection~~ any discussions or negotiations with ~~the transaction have been duly authorized~~such person, ~~if applicable~~its outside counsel, financial advisor(s), lenders or other financing sources and/or potential divestiture counterparties and (iii) the ~~documents~~ Company Board may authorize, adopt, approve, recommend, or otherwise declare advisable or propose to ~~be entered into by the Stockholder have been duly executed by the Stockholder~~ authorize, adopt, approve, recommend or declare advisable (publicly or otherwise) such an Acquisition Proposal, if and ~~delivered~~ only to the ~~acquirer and are enforceable against~~ extent that, (1) the ~~Stockholder in accordance with their respective terms and (iv) neither the execution and delivery~~ receipt of ~~documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause~~ such Acquisition Proposal did not result from a breach ~~or violation~~ of ~~the terms of~~ this Section 6.4, (2) prior to taking any ~~agreement, law or judgment, order or decree of any court or governmental agency;~~ action described in clause (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Salei) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (cii) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholderabove, the Company ~~and/or other stockholders of the Company; (d) the Stockholder shall not~~ Board determines in good faith that failure to take such action would be ~~liable for the inaccuracy of any representation or warranty made by any other Person in connection~~ inconsistent with the ~~Proposed Sale~~directors’ fiduciary duties under Applicable Law, ~~other than the Company~~ (~~except~~ 3) in each such case referred to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, clause (i) ~~each holder of each class~~ or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Actabove, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as Board has determined in good faith by (after consultation with its outside legal counsel and the ~~Board~~Financial Advisor) of that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably expected to result in a Superior Proposal, and (4) in the ~~securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities~~ case referred to in ~~exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that,~~ clause (~~iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e~~iii) above, ~~requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of~~ the Company ~~are given an option as to~~ Board determines in good faith (after consultation with its outside legal counsel and the ~~form and amount of consideration to be received as a result of the Proposed Sale, all holders of~~ Financial Advisor) that such ~~capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder~~ Acquisition Proposal is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale)Superior Proposal.

Appears in 2 contracts

Sources: Merger Agreement (Ingram Micro Inc), Merger Agreement (Brightpoint Inc)

Exceptions. Notwithstanding the foregoing, a Stockholder will not be required to comply with ~~Section 3.2~~ Subsection 4.2 above in connection with any proposed ~~Sale of the Company~~ Approved Transaction (the “Proposed ~~Sale~~Transaction”) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed ~~Sale~~ Transaction and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed ~~Sale~~Transaction, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any ~~stockholder~~ Stockholder of any of identical representations, warranties and covenants provided by all ~~stockholders~~Stockholders), and is pro rata in proportion to to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed ~~Sale (in accordance with the provisions of the Restated Certificate);~~Transaction; and (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (gb) upon the consummation of the Proposed ~~Sale~~Transaction and subject to Section 6 and Section 7, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of ~~Preferred Stock~~ preferred stock will receive the same amount of consideration per share of such series of ~~Preferred Stock~~ preferred stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the Required Holders elect to receive a lesser amount by written notice given to the Company at least ten (10) days prior to the effective date of any such Proposed Transaction, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of ~~each respective series of~~ the Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed ~~Sale~~ Transaction is a Deemed Liquidation Event) in accordance with the ~~Company’s~~ Takagi Agreement and Section 6 and Section 7 hereof and the Certificate of Incorporation in effect immediately prior to the Proposed ~~Sale~~Transaction; provided, however, that, notwithstanding the ~~foregoing provisions of this Subsection 3.3(g)~~foregoing, if the consideration to be paid in exchange for the ~~Key Holder Shares or Investor Shares, as applicable,~~ Transfer Stock pursuant to this Subsection ~~3.3(g~~4.3(b) includes any securities and due receipt thereof by any ~~Key Holder or Investor~~ Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such ~~securities;~~ securities or (y) the provision to any ~~Key Holder or Investor~~ Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities ~~Act~~Act of 1933, as amended, the Company may cause to be paid to any such ~~Key Holder or Investor~~ Stockholder in lieu thereof, against surrender of the ~~Key Holder Shares or Investor Shares~~Transfer Stock, as applicable, which would have otherwise been sold by such ~~Key Holder or Investor~~Stockholder, an amount in cash equal to the fair value (as determined in good faith by the ~~Board~~Company) of the securities which such ~~Key Holder or Investor~~ Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the ~~Key Holder Shares or Investor Shares~~Transfer Stock, as applicable~~; provided, that, clause (iv) above shall not apply to a SPAC Transaction~~. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 2 contracts

Sources: Stockholders’ Agreement, Stockholders’ Agreement (Histogenics Corp)

Exceptions. Notwithstanding ~~the foregoing~~anything contained in Section 8.1.1, ~~a Stockholder will~~ Owner shall not be required to ~~comply with~~ indemnify, protect, defend and hold harmless any Indemnitee pursuant to Section ~~3.2 above~~ 8.1.1 in ~~connection with~~ respect of any ~~proposed Sale~~ Expense of ~~the Company (the “Proposed Sale”) unless~~such Indemnitee: (a) For any ~~representations and warranties~~ Taxes or a loss of Tax benefit, whether or not Owner is required to ~~be made by such Stockholder in connection with the Proposed Sale are limited~~ indemnify therefor pursuant to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agencySection 8.3; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party Except to the ~~Proposed Sale)~~ extent attributable to acts or ~~any release of claims~~ events occurring prior thereto, acts or events (other than ~~a release in customary form~~ acts or events related to the performance by Owner of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims its obligations pursuant to the ~~definitive agreements~~ terms of the Operative Agreements) that occur after the Trust Indenture is required to be terminated in ~~connection~~ accordance with ~~such Proposed Sale~~Section 11.01 of the Trust Indenture; provided, that nothing in this clause (b) shall be deemed to exclude or limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or for damages from Owner for breach of Owner's covenants contained in the Operative Agreements or to release Owner from any of its obligations under the Operative Agreements that expressly provide for performance after termination of the Trust Indenture; (c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such ~~Stockholder and its Affiliates are not required to amend, extend~~ Indemnitee of any Equipment Note or ~~terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates~~interest therein, except ~~that~~ for out-of-pocket costs and expenses incurred as a result of any such Transfer pursuant to the ~~Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders~~ exercise of ~~the Company~~remedies under any Operative Agreement; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders);[Intentionally Omitted] (e) To the ~~liability for indemnification, if any,~~ extent attributable to the gross negligence or willful misconduct of such ~~Stockholder~~ Indemnitee or any related Indemnitee (as defined below) (other than gross negligence or willful misconduct imputed to such person by reason of its interest in the ~~Proposed Sale and for the inaccuracy of~~ Aircraft or any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated CertificateOperative Agreement); (f) ~~liability shall~~ [Intentionally Omitted] (g) To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any related Indemnitee contained in or made pursuant to any Operative Agreement or any Pass Through Agreement; (h) To the extent attributable to the failure by such Indemnitee or any related Indemnitee to perform or observe any agreement, covenant or condition on its part to be ~~limited~~ performed or observed in any Operative Agreement or any Pass Through Agreement; (i) To the extent attributable to the offer or sale by such ~~Stockholder’s~~ Indemnitee or any related Indemnitee of any interest in the Aircraft, the Equipment Notes, the Pass Through Certificates, or any similar interest, in violation of the Securities Act or other applicable ~~share~~ federal, state or foreign securities Laws (~~determined based on~~ other than any thereof caused by acts or omissions of Owner); (i) With respect to any Indemnitee (other than Mortgagee), to the ~~respective proceeds payable~~ extent attributable to ~~each Stockholder in connection with such Proposed Sale~~ the failure of the Mortgagee to distribute funds received and distributable by it in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stockTrust Indenture, (ii) ~~each holder~~ with respect to any Indemnitee (other than the Subordination Agent), to the extent attributable to the failure of ~~a series of Preferred Stock will receive~~ the ~~same amount of consideration per share of such series of Preferred Stock as is~~ Subordination Agent to distribute funds received and distributable by ~~other holders~~ it in ~~respect of their shares of such same series~~accordance with the Intercreditor Agreement, (iii) ~~each holder~~ with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of ~~Common Stock will receive the same amount of consideration per share of Common Stock as is~~ a Pass Through Trustee to distribute funds received and distributable by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) it in accordance with the ~~Company’s Certificate of Incorporation in effect immediately prior~~ Pass Through Trust Agreements, (iv) with respect to any Indemnitee (other than the Escrow Agent), to the ~~Proposed Sale; provided~~extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with any Escrow Agreement, ~~however, that, notwithstanding~~ (v) with respect to any Indemnitee (other than the ~~foregoing provisions of this Subsection 3.3(g~~Paying Agent), if to the ~~consideration~~ extent attributable to ~~be paid~~ the failure of the Paying Agent to distribute funds received and distributable by it in ~~exchange for~~ accordance with any Escrow Agreement, (vi) to the ~~Key Holder Shares~~ extent attributable to the failure of the Depositary to pay funds payable by it in accordance with any Deposit Agreement, (vii) with respect to Mortgagee, to the extent attributable to the negligence or ~~Investor Shares~~willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, ~~as applicable~~(viii) with respect to the Subordination Agent, ~~pursuant~~ to ~~this Subsection 3.3(g~~the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (ix) ~~includes any securities~~ with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and ~~due receipt thereof~~ distributable by ~~any Key Holder or Investor would require under applicable law~~ it in accordance with the Pass Through Trust Agreements, (x) with respect to the ~~registration~~ Escrow Agent, to the extent attributable to the negligence or ~~qualification~~ willful misconduct of ~~such securities~~ the Escrow Agent in the payment of funds received and payable by it in accordance with any Escrow Agreement, and (xi) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with any Escrow Agreement; (k) Other than during the continuation of an Event of Default, to the extent attributable to the authorization or giving or withholding of any ~~person~~ future amendments, supplements, waivers or consents with respect to any Operative Agreement or Pass Through Agreement other than such as have been requested or consented to in writing by Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements); (l) To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Owner; (m) To the extent that such expense is a ~~broker~~ loss of future profits of, a cost or ~~dealer~~ expense unreasonably incurred by, or ~~agent~~ an ordinary and usual operating or overhead expense of, such Indemnitee; (n) [Intentionally Omitted] (o) For any Lien in violation of the Operative Agreements attributable to such Indemnitee or any related Indemnitee; (p) If another provision of an Operative Agreement or a Pass Through Agreement specifies the extent of Owner's responsibility or obligation with respect to such ~~securities; or (y)~~ Expense, to the ~~provision to any Key Holder or Investor of any information~~ extent arising from other than failure of Owner to comply with such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder specified responsibility or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction.obligation; (hq) ~~subject to clause (e) above, requiring~~ To the ~~same form of consideration to be available to the holders of any single class~~ extent incurred by or ~~series of capital stock, if any holders of any capital stock of the Company are given~~ asserted against an ~~option as to the form and amount of consideration to be received~~ Indemnitee as a result of any "prohibited transaction", within the ~~Proposed Sale, all holders~~ meaning of ~~such capital stock will be given~~ Section 406 of ERISA or Section 4975(c)(1) of the ~~same option~~Code; ~~and~~or (ir) ~~such Stockholder is not required to agree (unless such Stockholder is a Company officer~~ For any loss attributable to, arising from or ~~employee) to any restrictive covenant~~ in connection with any inspections or inspection rights arising from or in connection with any of the ~~Proposed Sale (including without limitation~~ Operative Agreements or the Transactions. For purposes of this Section 8.1, a Person shall be considered a "related" Indemnitee with respect to an Indemnitee if such Person is an Affiliate or employer of such Indemnitee, a director, officer, employee, agent, or servant of such Indemnitee or any ~~covenant not to compete~~ such Affiliate or ~~covenant not to solicit customers, employees~~ a successor or ~~suppliers~~ permitted assignee of any ~~party to~~ of the ~~Proposed Sale)~~foregoing.

Appears in 2 contracts

Sources: Participation Agreement (Atlas Air Inc), Participation Agreement (Atlas Air Inc)

Exceptions. Notwithstanding the foregoing, a Stockholder will not be required to comply with ~~Section 3.2~~ Subsection 7.1 above in connection with any proposed Sale of the Company (the “Proposed Sale”) ), unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, ~~including~~ including, but not limited to to, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective ~~terms~~ terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (ec) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Certificate of Incorporation related to the allocation of the escrow, is pro rata in proportion to to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed ~~Sale (in accordance with the provisions of the Restated Certificate);~~Sale; and (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (gd) upon the consummation of the Proposed ~~Sale,~~ Sale (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common ~~Stock,~~ Stock and (iviii) unless the holders of (x) a majority of the Preferred Stock elect to receive a lesser amount by written notice given to the Company at least three (3) days prior to the effective date of any such Proposed Sale, , the aggregate consideration receivable by all holders of ~~the~~ Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the ~~foregoing provisions of this Subsection 3.3(g)~~foregoing, if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection ~~3.3(g~~7.2(d) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the ~~Board~~Company) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable~~; provided, that, clause (iv) above shall not apply to a SPAC Transaction~~. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 2 contracts

Sources: Stockholders Agreement (Alzheon, Inc.), Stockholders Agreement (Alzheon, Inc.)

Exceptions. Notwithstanding the ~~foregoing~~forgoing, a Stockholder will not be required to comply with Section ~~3.2~~ 4(b)(i) above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (aA) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (iI) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (iiII) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (~~iii~~III) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (ivIV) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (bB) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the The Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders)Company; (eC) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders)Person, and is ~~pro rata in proportion~~ limited to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the ~~Restated Certificate~~Certificate of Incorporation); (fD) liability shall be limited to such Stockholder’s ~~applicable~~ pro rata share (determined ~~based on the respective~~ in proportion to proceeds ~~payable to each~~ received by such Stockholder in connection with such Proposed Sale in accordance with the provisions of the ~~Restated Certificate~~Certificate of Incorporation) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration ~~otherwise payable~~ actually paid to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (gE) upon the consummation of the Proposed Sale, (iI) each Preferred Holder and each holder of ~~each class or series of the Company’s stock~~ Common Shares will receive the same form of consideration for their ~~shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock~~Common Shares and Preferred Shares, (iiII) with respect to the Preferred Shares, each ~~holder of a series of~~ Preferred ~~Stock~~ Holder will receive the same amount of consideration per ~~share of such series of~~ Preferred ~~Stock as is received by other holders in respect of their shares of such same series~~Share, (~~iii~~III) each holder of Common ~~Stock~~ Shares will receive the same amount of consideration per ~~share of~~ Common ~~Stock as is received by other holders in respect of their shares of Common Stock~~Share, and (ivIV) unless the holders of at least seventy-five percent (75%) of the Preferred Shares elect otherwise by written notice given to the Company at least fifteen (15) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred ~~Stock~~ Shares and Common ~~Stock~~ Shares shall be allocated among the holders of Preferred ~~Stock~~ Shares and Common ~~Stock~~ Shares on the basis of the relative liquidation preferences to which the holders of ~~each respective series of~~ Preferred ~~Stock~~ Shares and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the ~~Company’s~~ Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction.and (hF) subject to clause (eE) above, requiring the same form of consideration to be ~~available to~~ received by the holders of ~~any single class or series of capital stock~~the Company’s Common and Preferred Stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 2 contracts

Sources: Stockholders Agreement (Syncardia Systems Inc), Stockholders Agreement (Syncardia Systems Inc)

Exceptions. Notwithstanding the foregoing, a Stockholder will not be required to comply with Section ~~3.2~~ 8.1 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Stockholder’s Shares, ~~including but not limited to~~ including, without limitation, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the ~~acquirer~~ acquiror and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental ~~agency~~agency by which such Stockholder is subject or bound; (b) the Stockholder is not required to agree (unless such Stockholder ~~shall have no obligation~~ is a Company officer or employee) to ~~execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation~~ any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with ~~such~~ the Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (ed) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other ~~Person~~ person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Restated Certificate related to the allocation of the escrow is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the ~~Restated~~ Restate Certificate); (fe) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration ~~otherwise payable~~ paid to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (gf) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless waived in accordance with the terms of the Restated Certificate and as may be required by law, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the ~~Company’s~~ Restated Certificate ~~of Incorporation~~ in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the ~~foregoing provisions of this Subsection 3.3(g)~~foregoing, if the consideration to be paid in exchange for the ~~Key Holder~~ Shares ~~or Investor Shares, as applicable, pursuant to this Subsection 3.3(g)~~ includes any securities and due receipt thereof by any ~~Key Holder or Investor~~ Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any ~~Key Holder or Investor~~ Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such ~~Key Holder or Investor~~ Stockholder in lieu thereof, against surrender of the ~~Key Holder~~ Shares ~~or Investor Shares, as applicable,~~ which would have otherwise been sold by such ~~Key Holder or Investor~~Stockholder, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such ~~Key Holder or Investor~~ Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the ~~Key Holder Shares or Investor~~ Shares~~, as applicable~~; ~~provided, that, clause (iv) above shall not apply to a SPAC Transaction.~~and (hg) subject to ~~clause (e~~Section 8.2(f) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of ~~any~~ a series or class of capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such series or class of capital stock will be given the same option; ~~and~~ provided, however, that nothing in this clause (if) shall entitle any Stockholder to receive any form of consideration that such Stockholder would be ineligible to receive as a result of such Stockholder’s failure to satisfy any condition, requirement or limitation that is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party generally applicable to the ~~Proposed Sale)~~Company’s stockholders.

Appears in 2 contracts

Sources: Investors' Rights Agreement (ThredUp Inc.), Investors' Rights Agreement (ThredUp Inc.)

Exceptions. Notwithstanding anything to the ~~foregoing~~contrary set forth in Section 5.03(a) or any other provision of this Agreement, at any time prior to obtaining the Required Stockholder Approval, in response to an unsolicited, bona fide written Acquisition Proposal received after the date of this Agreement that is not withdrawn and did not arise from or in connection with a ~~Stockholder will~~ material breach of the obligations set forth in this Section 5.03, the Company may: (i) furnish information in response to a request therefor (including nonpublic information regarding the Company or any of its Subsidiaries) to the Person who made such Acquisition Proposal or its Representatives; provided that such information has previously been made available to, or is made available to, Parent prior to or substantially concurrently with the time such information is made available to such Person; and provided, further, that, prior to furnishing any such information, Parent receives from the Company an executed confidentiality agreement between the Company and the Person making such Acquisition Proposal containing terms that are not ~~be required~~ less restrictive in the aggregate to the Person making such Acquisition Proposal than the terms in the Confidentiality Agreement are on Parent and additional terms that expressly permit the Company to comply with the terms of this Section ~~3.2 above~~ 5.03; and (ii) participate in ~~connection~~ any discussions or negotiations with any ~~proposed Sale of the Company (the “Proposed Sale”) unless: (a)~~ such Person regarding such Acquisition Proposal; in each case, if, and only if, prior to taking any ~~representations and warranties to be made by such Stockholder~~ action described in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that clauses (i) ~~the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances,~~ or (ii) ~~the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable~~above, (~~iii~~A) the ~~documents~~ Board of Directors determines in good faith (I) after consultation with its outside legal counsel and its independent financial advisor of nationally recognized reputation, that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to ~~be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder~~ result in ~~accordance with their respective terms~~ a Superior Proposal and (ivII) ~~neither the execution and delivery of documents~~ after consultation with its outside legal counsel, that failure to ~~be entered into~~ take such action described in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, clauses (i) ~~each holder of each class~~ or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Sharesabove, as applicable, would reasonably be expected to be inconsistent with the directors’ fiduciary duties under Delaware Law; and (B) the Company has delivered to Parent written notice advising Parent of the Board of Directors’ determination pursuant to ~~this Subsection 3.3(g~~the foregoing clause (A) ~~includes any securities~~ and ~~due receipt thereof by any Key Holder or Investor would require under applicable law~~ the Company’s intention to take the action described in clauses (xi) ~~the registration or qualification of~~ and (ii) above; provided that only one such ~~securities or of any person as a broker or dealer or agent~~ notice need be given with respect to ~~such securities;~~ any specific Acquisition Proposal or ~~(y) the provision to any Key Holder~~ amended or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transactionmodified Acquisition Proposal. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 2 contracts

Sources: Merger Agreement (Astria Therapeutics, Inc.), Merger Agreement (Biocryst Pharmaceuticals Inc)

Exceptions. Notwithstanding the foregoing, a Stockholder will not be required to comply with ~~Section 3.2~~ Subsection 7.1 above in connection with any proposed Sale of the Company (the “Proposed Sale”) ), unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, ~~including~~ including, but not limited to to, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective ~~terms~~ terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (ec) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Certificate of Incorporation related to the allocation of the escrow, is pro rata in proportion to to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed ~~Sale (in accordance with the provisions of the Restated Certificate)~~Sale; (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (gd) upon the consummation of the Proposed ~~Sale,~~ Sale (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iviii) unless (A) the Requisite Preferred Holders and (B) the holders of a majority in voting power of the then outstanding shares of Series D Preferred Stock and Series D-1 Preferred Stock, voting separately as a class, elect to receive a lesser amount by written notice given to the Company at least three (3) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the ~~foregoing provisions of this Subsection 3.3(g)~~foregoing, if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection ~~3.3(g~~7.2(d) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the ~~Board~~Company) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; ~~provided, that, clause (iv) above shall not apply to a SPAC Transaction.~~and ~~(h) subject to clause~~ (e) ~~above~~no Stockholder that is a venture capital fund, ~~requiring the same form of consideration to~~ investment fund or similar investment vehicle shall be ~~available to the holders of any single class or series of capital stock~~required, ~~if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the~~ in connection with such Proposed Sale, ~~all holders of such capital stock will be given the same option; and~~ to enter into any agreements with non-competition, non-solicitation, non-hire provisions or similar restrictive covenants (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Saleother than customary covenants regarding confidentiality).

Appears in 2 contracts

Sources: Stockholders Agreement (Atea Pharmaceuticals, Inc.), Stockholders Agreement (Atea Pharmaceuticals, Inc.)

Exceptions. Notwithstanding the foregoing, a Stockholder will not be required to comply with Section 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) ), unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, ~~including~~ including, but not limited to to, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective ~~terms~~ terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (ec) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Restated Certificate related to the allocation of the escrow, is pro rata in proportion to to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed ~~Sale (in accordance with the provisions of the Restated Certificate)~~Sale; (fd) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders subject to the immediately preceding parenthetical but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to actual fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (ge) upon the consummation of the Proposed ~~Sale,~~ Sale (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) subject to clause (g) below, unless the holders of at least a majority of the Preferred Stock elect to receive a lesser amount by written notice given to the Company at least ten (10) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming and treating for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the ~~foregoing provisions of this Subsection 3.3(g)~~foregoing, if the consideration to be paid in exchange for the Key Holder Shares, Investor Shares or Common Stock Investor Shares, whether Preferred Stock or Common Stock, as applicable, pursuant to this ~~Subsection 3.3(g~~Section 3.3(e) includes any securities and due receipt thereof by any Key ~~Holder~~ Holder, Investor or Common Stock Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such ~~securities;~~ securities or (y) the provision to any Key ~~Holder~~ Holder, Investor or Common Stock Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key ~~Holder~~ Holder, Investor or Common Stock Investor in lieu thereof, against surrender of the Key Holder Shares, Investor Shares or Common Stock Investor Shares, whether Preferred Stock or Common Stock, as applicable, which would have otherwise been sold by such Key ~~Holder~~ Holder, Investor or Common Stock Investor, an amount in cash equal to the fair value (as determined in good faith by the ~~Board~~Company) of the securities which such Key ~~Holder~~ Holder, Investor or Common Stock Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares, Investor Shares or Common Stock Investor Shares, whether Preferred Stock or Common Stock, as applicable~~; provided, that, clause (iv) above shall not apply to a SPAC Transaction.~~; (hf) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; ~~and~~provided, however, that nothing in this Section 3.3(f) shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive as a result of such holder’s failure to satisfy any condition, requirement or limitation that is generally applicable to the Company’s stockholders; (ig) other than the covenant to the provide the indemnification described in clause (d) above and to deliver the shares of the Company at Closing (if applicable), other customary closing deliverables and other customary covenants reasonably necessary to facilitate the consummation of the Closing, no Stockholder shall be required to make any covenants as to such Stockholder’s actions, business or operations or that would otherwise restrict the actions of such Stockholder ~~is not required~~ (including, for example, any non-compete or similar provisions); (h) notwithstanding anything in this Agreement to ~~agree (unless such Stockholder is a Company officer or employee)~~ the contrary, if the consideration to ~~any restrictive covenant~~ be paid to the Series B Preferred Stock in connection with the Proposed Sale is less than $6.23 per share (~~including without limitation any covenant not~~ subject to ~~compete or covenant not to solicit customers, employees or suppliers~~ appropriate adjustment in the event of any ~~party~~ stock dividend, stock split, combination or other similar recapitalization), holders of a majority of the Series B Preferred Stock consent to the Proposed Sale; and (i) notwithstanding anything in this Agreement to the contrary, if the consideration to be paid to the Series B-1 Preferred Stock in connection with the Proposed Sale is less than $6.75 per share (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization), holders of a majority of the Series B-1 Preferred Stock consent to the Proposed Sale.

Appears in 2 contracts

Sources: Preferred Stock Purchase Agreement (Ovid Therapeutics Inc.), Series B 1 Preferred Stock Purchase Agreement (Ovid Therapeutics Inc.)

Exceptions. Notwithstanding the foregoing, a Stockholder will not be required to comply with ~~Section 3.2~~ Subsection 2.1 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (ec) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed ~~Sale (in accordance with the provisions of the Restated Certificate);~~Sale; and (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (gd) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, and (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the ~~foregoing provisions of this Subsection 3.3(g)~~foregoing, if the consideration to be paid in exchange for the ~~Key Holder~~ Stockholder Shares ~~or Investor Shares, as applicable,~~ pursuant to this Subsection ~~3.3(g~~2.3(c) includes any securities and due receipt thereof by any ~~Key Holder or Investor~~ Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such ~~securities;~~ securities or (y) the provision to any ~~Key Holder or Investor~~ Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such ~~Key Holder or Investor~~ Stockholder in lieu thereof, against surrender of the ~~Key Holder~~ Stockholder Shares ~~or Investor Shares, as applicable,~~ which would have otherwise been sold by such ~~Key Holder or Investor~~Stockholder, an amount in cash equal to the fair value (as determined in good faith by the ~~Board~~Company) of the securities which such ~~Key Holder or Investor~~ Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the ~~Key Holder Shares or Investor~~ Stockholder Shares~~, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction~~. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 2 contracts

Sources: Asset Acquisition Agreement (Cesca Therapeutics Inc.), Voting Agreement (Cesca Therapeutics Inc.)

Exceptions. Notwithstanding ~~the foregoing~~Section 13.1, ~~a Stockholder will not be required~~ any party hereto may disclose any Confidential Information: (a) to ~~comply with Section 3.2 above~~ any Governmental Entity in connection with applications for approval of the transactions contemplated hereby and the other Transaction Documents (or, in the case of any ~~proposed Sale~~ regulated Affiliate of a Member, in connection with audits by the applicable Governmental Entities), (b) to financial institutions in connection with financings of the transactions contemplated hereby, (c) in the case of any Member, (i) to a bona fide potential Transferee if such Member desires to undertake any Transfer of its Membership Interests permitted by this Agreement, (ii) to its stockholders, limited partners, members or other equityholders, as the case may be, all materials made available to such Member pursuant to the terms of this Agreement and (iii) to its indirect stockholders, limited partners, members or other equityholders, as the case may be, so long as the Confidential Information disclosed to such Persons is limited to the materials delivered to such party pursuant to clauses (i) through (vi) inclusive of Section 4.5(a), provided that (A) in the case of subclauses (i), (ii) and (iii) of this clause (c), prior to the disclosure of any Confidential Information, such Person shall execute an agreement containing the terms set forth in Section 13.1, and (B) in the case of clauses (ii) and (iii) above, the disclosure of Confidential Information relating to commercial transactions or commercial relationships of the Company ~~(the “Proposed Sale”) unless: (a) any representations~~ and ~~warranties~~ its Subsidiaries shall be strictly limited to ~~be made by~~ such ~~Stockholder~~ Persons who have an actual need to know such information in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and administration of their equity interest in ~~and to the Shares~~ such ~~Stockholder purports to hold, free and clear of all liens and encumbrances~~Member, (iid) ~~the obligations of the Stockholder~~ to any rating or similar agency in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach its analysis or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers review of the Company ~~be bound by a non-compete~~ or ~~similar restrictive covenant or a release~~ any of ~~claims pursuant~~ its Subsidiaries, (e) to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person if such party becomes compelled by Law (including by deposition, interrogatory, request for documents, subpoena, civil investigative demand, mandatory provision of Law, regulation or stock exchange rule) to disclose any of the Confidential Information. In addition, each Member may report to its stockholders, limited partners, members or other equityholders, as the case may be, the general status of such Member’s investment in ~~connection with the Proposed Sale, other than~~ the Company (~~except to the extent that funds may~~ without disclosing specific Confidential Information). A disclosing Member shall be ~~paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as~~ responsible for a breach by any ~~stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of~~ third Person to whom such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (disclosing Member discloses Confidential Information in accordance with the ~~provisions~~ terms of ~~the Restated Certificate);~~ subclauses (fc)(ii) ~~liability shall be limited to such Stockholder’s applicable share~~ and (~~determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate~~c)(iii) of ~~a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds~~ this Section 13.2. In the ~~amount~~ case of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, ~~requiring~~ the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and disclosing party shall (i) provide the other parties hereto with prompt written notice of such ~~Stockholder~~ requirement so that such non-disclosing parties may seek a protective order or other appropriate remedy or waive compliance with the terms of this Article XIII and (ii) take such reasonable legally available steps as the non-disclosing parties may reasonably request to resist or narrow such requirement (at the expense of the non-disclosing parties). In the event that such protective order or remedy is not obtained, or that the non-disclosing parties waive compliance with the terms hereof, the disclosing party agrees to furnish only that portion of the Confidential Information that it is advised by counsel is required to ~~agree (unless~~ be furnished, and to exercise its commercially reasonable efforts to obtain assurance that confidential treatment shall be accorded such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale)Confidential Information.

Appears in 2 contracts

Sources: Limited Liability Company Operating Agreement (Gmac LLC), Limited Liability Company Operating Agreement (Gmac LLC)

Exceptions. Notwithstanding the ~~foregoing~~restrictions set forth in Sections 2(a) and 2(b), ~~a Stockholder will not be required to comply with Section 3.2 above in connection with any proposed Sale~~ each of the ~~Company (the “Proposed Sale”) unless:~~ Locked-up Shareholders may (a) (subject to the MTN Preferential Arrangements and the Management Preferential Arrangements) participate in the Offering and the Over-Allotment Option and may transfer its Subject Shares to the underwriters pursuant to the Underwriting Agreement; and (b) subject to any ~~representations and warranties~~ other lock-up restrictions agreed to ~~be made~~ by ~~such Stockholder~~ that Locked-up Shareholder with the Underwriters in connection with the ~~Proposed Sale are limited to representations and warranties related to authority~~Offering or any other Registered Offering, ~~ownership and~~ at any time after the ~~ability to convey title to such~~ Offering transfer its Subject Shares~~, including but not limited to representations and warranties that~~ : (i) ~~the Stockholder holds all right~~to any beneficiary of such Locked-up Shareholder pursuant to a will, ~~title and interest in and~~ other testamentary document or intestate succession to the ~~Shares~~ legal representatives, heirs, beneficiaries or immediate family members of such ~~Stockholder purports~~ Locked-up Shareholder, provided that the donee or donees, beneficiary or beneficiaries, heir or heirs or legal representatives thereof execute an Accession Agreement and agree to ~~hold~~be bound by the terms of this Agreement applicable to such Locked-up Shareholder, ~~free~~ and ~~clear of all liens and encumbrances,~~ provided further that any such transfer shall not involve a disposition for value; (ii) to any trust, partnership, limited liability company or other entity for the ~~obligations~~ direct or indirect benefit of such Locked-up Shareholder or the immediate family of such Locked-up Shareholder, provided that the trustee of the ~~Stockholder in connection with~~ trust or the ~~transaction have been duly authorized~~partnership or the limited liability company or other entity executes an Accession Agreement and agrees to be bound by the terms of this Agreement applicable to such Locked-up Shareholder, ~~if applicable,~~ and provided further that any such transfer shall not involve a disposition for value; (iii) to any immediate family member or other dependent, provided that the ~~documents~~ transferee executes an Accession Agreement and agrees to be ~~entered into~~ bound by the ~~Stockholder have been duly executed~~ terms of this Agreement applicable to such Locked-up Shareholder, and provided further that any such transfer shall not involve a disposition for value; (iv) to a nominee or custodian of a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (iii) above, provided that the transferee executes an Accession Agreement and agrees to be bound by the ~~Stockholder and delivered~~ terms of this Agreement applicable to ~~the acquirer and are enforceable against the Stockholder~~ such Locked-up Shareholder; (v) as collateral in accordance with ~~their respective~~ and subject to the terms and ~~(iv) neither~~ conditions of a loan agreement and any related pledge and security agreements, and following any subsequent transfer upon foreclosure on such collateral Subject Shares pledged in accordance with and subject to the ~~execution~~ terms and ~~delivery~~ conditions of ~~documents~~ such loan agreement and any related pledge and security agreements, provided that each applicable lender party that forecloses on such collateral Subject Shares shall execute an Accession Agreement and agree to be ~~entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of~~ bound by the terms of ~~any agreement~~this Agreement applicable to such Locked-up Shareholder; provided, ~~law or judgment~~however, ~~order or decree~~ that if a transfer in accordance with this section (v) occurs, the Locked-up Shareholder shall provide the Company prior written notice informing it of any ~~court~~ public filing, report or ~~governmental agency; (b)~~ announcement made by or on behalf of the Locked-up Shareholder with respect thereto, and provided further that if such ~~Stockholder~~ Locked-up Shareholder is required to file a report under the Exchange Act during the Lock-up Period, such Locked-up Shareholder shall ~~have no obligation to execute or otherwise agree to~~ include a statement in any ~~restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party~~ such report to the ~~Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in~~ effect that such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements transfer is in connection with such ~~Proposed Sale~~pledge; (cvi) pursuant to an order of a court or regulatory agency or pursuant to a qualified domestic order or in connection with a divorce settlement, provided that the transferee executes an Accession Agreement and agrees to be bound by the terms of this Agreement applicable to such ~~Stockholder~~ Locked-up Shareholder (to the extent permissible by law), and provided further that, if such Locked-up Shareholder is required to file a report under the Exchange Act, such Locked-up Shareholder shall include a statement in such report to the effect that the filing relates to the transfer of securities pursuant to an order of a court or regulatory agency or to comply with any regulations related to the ownership of Shares unless such a statement would be prohibited by any applicable law, regulation or order of a court or regulatory authority; (vii) to the Company or its Affiliates ~~are not required~~ upon death, disability or termination of employment, in each case, of such Locked-up Shareholder; (viii) to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company ~~and/or other stockholders~~ (A) pursuant to the exercise, in each case on a “cashless” or “net exercise” basis, of any option expiring during the Lock-up Period to purchase Shares granted by the Company pursuant to any employee benefit plans or arrangements described in the Pricing Disclosure Package and the Prospectus (each as defined in the Underwriting Agreement), where any Shares received by such Locked-up Shareholder upon any such exercise will be subject to the terms of this Agreement, or (B) for the purpose of satisfying any taxes (including estimated taxes) due as a result of the exercise of any option expiring during the Lock-up Period to purchase Shares or the vesting or settlement of any restricted stock or restricted stock unit awards granted by the Company pursuant to employee benefit plans or arrangements described in the Pricing Disclosure Package and the Prospectus (each as defined in the Underwriting Agreement), in each case on a “cashless,” “net exercise” or “net settled” basis, where any Shares received by such Locked-up Shareholder upon any such exercise or vesting or settlement will be subject to the terms of this Agreement, provided that any filing under Section 16(a) of the Exchange Act in connection with such transfer shall indicate the reason for such disposition and that such transfer of Shares was solely to the Company; (dix) pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction made to all holders of the ~~Stockholder~~ Shares involving a change of control of the Company following the consummation of the transactions contemplated by the Underwriting Agreement, provided that in the event that such tender offer, merger, consolidation or other such transaction is not completed, such Locked-up Shareholder’s Shares shall ~~not be liable for~~ remain subject to the ~~inaccuracy~~ provisions of this Agreement, and provided further that “change of control” as used herein, shall mean the consummation of any ~~representation~~ bona fide third party tender offer, merger, consolidation or ~~warranty made by~~ other similar transaction the result of which is that any ~~other Person~~ “person” (as defined in ~~connection with~~ Section 13(d)(3) of the ~~Proposed Sale~~Exchange Act), or group of persons, other than the ~~Company~~ Company, becomes the beneficial owner (~~except~~ as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of at least fifty one percent (51%) of total voting shares of the Company. In the case of each transfer or distribution pursuant to ~~the extent that funds may be paid out~~ clauses (i) through (ix) above, no public reports or filings reporting a reduction in beneficial ownership of ~~an escrow established to cover breach of representations, warranties and covenants~~ Shares of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties shall be required or shall be voluntarily made by the ~~Company in connection with~~ Locked-up Shareholder during the Lock-up Period, unless such ~~Proposed Sale,~~ public report or filing is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated required under the ~~Securities~~ Exchange Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 2 contracts

Sources: Shareholders Agreement (IHS Holding LTD), Shareholders Agreement (IHS Holding LTD)

Exceptions. ~~Notwithstanding the foregoing, a Stockholder will~~ The obligations of this Section 12 shall not ~~be required~~ apply to ~~comply with Section 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless~~Confidential Information that: (ai) ~~any representations and warranties~~ is submitted to ~~be made by such Stockholder~~ a Regulatory Authority to facilitate the issuance of, or otherwise in connection ~~with the Proposed Sale are limited~~ with, correspondence and/or submissions filed for any Regulatory Approval of a Product, provided, that, reasonable measures shall be taken to ~~representations and warranties related to authority, ownership and the ability to convey title to~~ assure confidential treatment of such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, information; (ii) is provided by the ~~obligations~~ Recipient to third parties under confidentiality agreements having provisions at least as stringent as those in this Agreement, for consulting, manufacturing development, manufacturing, external testing and marketing research with respect to any of the ~~Stockholder in connection~~ subject matter of this Agreement; and, with ~~the transaction have been duly authorized~~respect to JAH, ~~if applicable,~~ to third parties who are actual or potential Sublicensees or other development/marketing partners of JAH; (iii) ~~the documents to be entered into~~ is provided by the ~~Stockholder have been duly executed by~~ Recipient to actual or prospective investors, or to a Party’s accountants, attorneys and other professional advisors, and in the ~~Stockholder~~ case of disclosure to such prospective investors, accountants, attorneys and ~~delivered to the acquirer and are enforceable against the Stockholder~~ advisors, in ~~accordance with their respective~~ each such case, only under confidentiality terms ~~and~~ having provisions at least as stringent as those in this Section 12; (iv) ~~neither the execution and delivery of documents~~ is otherwise required to be ~~entered into~~ disclosed in ~~connection~~ compliance with ~~the transaction~~Applicable Laws or regulations (including, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the ~~inaccuracy~~ avoidance of ~~any representations~~ doubt, the requirements of the U.S. Securities and ~~warranties made by the Company in connection with such Proposed Sale~~Exchange Commission, ~~is several and not joint with~~ or any other ~~Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach~~ stock exchange on which securities issued by ~~any stockholder of any of identical representations, warranties and covenants provided~~ a Party are traded) or order by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class court or ~~series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by~~ other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicablegovernmental authority having competent jurisdiction; provided, that, ~~clause~~ if a Recipient is required to make any such disclosure of a Discloser’s Confidential Information, the Recipient will give reasonable advance written notice to the Discloser of such disclosure requirement and, except to the extent inappropriate in the case of patent applications, will use its Commercially Reasonable Efforts to secure confidential treatment of such Confidential Information required to be disclosed; or (ivv) ~~above shall not apply~~ is submitted to a SPAC Transaction. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant patent-granting government authority/agency in connection with the ~~Proposed Sale (including without limitation any covenant not~~ Patents related to ~~compete or covenant not~~ a Product, provided, that, reasonable measures shall be taken to ~~solicit customers, employees or suppliers~~ assure confidential treatment of ~~any party to the Proposed Sale)~~such information.

Appears in 2 contracts

Sources: License Agreement (Jaguar Animal Health, Inc.), License Agreement (Jaguar Animal Health, Inc.)

Exceptions. Notwithstanding anything to the ~~foregoing~~contrary contained in this Agreement, at any time prior to the time the Company Stockholder Approval is obtained, the Company and its Representatives may, in response to a ~~Stockholder will~~ bona fide Acquisition Proposal received after the date of this Agreement that did not ~~be required~~ arise from a material breach of the obligations set forth in this Section 5.3, (i) provide information in response to ~~comply~~ a request therefor by a Person who has executed and delivered a confidentiality agreement on terms that, taken as a whole, are not materially less restrictive to the other party than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement need not contain a standstill provision or otherwise prohibit the making, or amendment, of an Acquisition Proposal (any confidentiality agreement satisfying the criteria of this clause (i) being an “Acceptable Confidentiality Agreement”)); provided that such information has previously been made available to, or is made available to, Parent prior to or substantially concurrently with (and in any event within twenty-four (24) hours of) the time it is made available to such Person; (ii) engage or participate in any discussions or negotiations with any Person who has made such an Acquisition Proposal, subject to such Person agreeing to an Acceptable Confidentiality Agreement; or (iii) after having complied with Section ~~3.2~~ 5.3(e), authorize, adopt, approve, recommend or otherwise declare advisable or propose to authorize, adopt, approve, recommend or declare advisable (publicly or otherwise) such an Acquisition Proposal, if and only to the extent that, (A) prior to taking any action described in clause (i), (ii), or (iii) above, the Company Board determines in good faith (after consultation with its outside legal counsel) that failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law, and (B) in each such case referred to in clause (i), (ii), or (iii) above the Company Board determines in ~~connection~~ good faith (after consultation with its outside legal counsel) based on the information then available that such Acquisition Proposal either constitutes a Superior Proposal or could reasonably be expected to result in a Superior Proposal. Any breach by the directors, officers or attorneys of the Company or any ~~proposed Sale~~ of the Company Subsidiaries, or any other Representative of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of at the Company’s ~~stock will receive the same form~~ direction), of ~~consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii~~this Section 5.3(b) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in deemed a ~~Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with~~ breach hereof by the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 2 contracts

Sources: Merger Agreement (NeuroMetrix, Inc.), Merger Agreement (electroCore, Inc.)

Exceptions. Notwithstanding the ~~foregoing~~forgoing, a ~~Stockholder~~ Holder will not be required to comply with Section ~~3.2~~ 4.2 above in connection with any ~~proposed~~ specific Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such ~~Stockholder~~ Holder in connection with the Proposed Sale are limited to (1) representations and warranties related to authority, ownership of the Shares held by such Holder and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the ~~Stockholder~~ Holder holds all right, title and interest in and to the ~~Shares~~ Company’s securities such ~~Stockholder~~ Holder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the ~~Stockholder~~ Holder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the ~~Stockholder~~ Holder have been duly executed by the ~~Stockholder~~ Holder and delivered to the acquirer and are enforceable against the ~~Stockholder~~ Holder in accordance with their respective ~~terms~~ terms, and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the ~~Stockholder~~Holder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; ; and (b2) such ~~Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant~~ other standard and customary representations and warranties made by stockholders in connection with ~~the Proposed~~ a Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (db) the ~~Stockholder~~ Holder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders)Company; (ec) the liability for indemnification, if any, of such ~~Stockholder~~ Holder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders)Person, and is pro rata in ~~proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in~~ accordance with the ~~provisions~~ portion of the ~~Restated Certificate)~~proceeds received by such Holder in the Sale of the Company; (fd) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration ~~otherwise payable~~ actually paid to such ~~Stockholder~~ Holder in connection with such Proposed Sale, except with respect to (i) representations and warranties of such Holder related to authority, ownership of the Shares held by such Holder and the ability to convey title to such Shares, (ii) any covenants made by such Holder with respect to confidentiality or voting related to the Proposed Sale or (iii) claims related to fraud or willful breach by such ~~Stockholder~~Holder, the liability for which need not be ~~limited as to such Stockholder;~~limited; and (ge) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred ~~Stock as is received by other holders in respect of their shares of such same series~~Stock, and (~~iii~~ii) each holder of Common Stock will receive the same amount of consideration per share of Common ~~Stock as is received by other holders in respect of their shares of Common~~ Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 2 contracts

Sources: Voting Agreement, Voting Agreement (Enphase Energy, Inc.)

Exceptions. Notwithstanding the foregoing, a ~~Stockholder~~ Shareholder will not be required to comply with ~~Section 3.2~~ Subsection 2.1 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such ~~Stockholder~~ Shareholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the ~~Stockholder~~ Shareholder holds all right, title and interest in and to the Shares such ~~Stockholder~~ Shareholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the ~~Stockholder~~ Shareholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the ~~Stockholder~~ Shareholder have been duly executed by the ~~Stockholder~~ Shareholder and delivered to the acquirer and are enforceable against the ~~Stockholder~~ Shareholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the ~~Stockholder~~Shareholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) ~~such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with~~ the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder Shareholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (other than a breach by any Shareholder of any identical representations, warranties and covenants provided by all Shareholders with respect to the Company and not with respect to themselves, in which case the Shareholder shall be liable for its pro rata share of the damages resulting from such breach, and except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the ~~Company as well as~~ Company; provided, however, that the breaching Shareholder shall be required to reimburse the non-breaching Shareholders for an amount equal to their respective pro rata shares of any amount paid out of escrow in respect of a breach by ~~any stockholder~~ the breaching Shareholder of ~~any~~ one of ~~identical representations,~~ its representations and warranties ~~and covenants provided by all stockholders~~with respect to itself); (ec) the liability for indemnification, if any, of such ~~Stockholder~~ Shareholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Shareholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the ~~Company as well as~~ Company; provided, however, that the breaching Shareholder shall be required to reimburse the non-breaching Shareholders for an amount equal to their respective pro rata shares of any amount paid out of escrow in respect of a breach by ~~any stockholder~~ the breaching Shareholder of ~~any~~ one of ~~identical representations,~~ its representations and warranties ~~and covenants provided by all stockholders~~with respect to itself), and subject to the provisions of the Amended Articles related to the allocation of the escrow, is pro rata in proportion to to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder Shareholder in connection with such Proposed Sale~~, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder;~~; and (gd) upon the consummation of the Proposed Sale, ~~(i)~~ each holder of each class or series of the Company’s ~~stock~~ share capital will receive the same form and amount of consideration for their shares of such class or series as is ~~received by other holders~~ set forth in ~~respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive~~ the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation Amended Articles in effect immediately prior to the consummation of the Proposed Sale; provided, however, that, notwithstanding the ~~foregoing provisions of this Subsection 3.3(g)~~foregoing, if the consideration to be paid in exchange for the ~~Key Holder~~ Shares ~~or Investor Shares, as applicable,~~ pursuant to this Subsection ~~3.3(g~~2.3(d) includes any securities and due receipt thereof by any ~~Key Holder or Investor~~ Shareholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such ~~securities;~~ securities or (y) the provision to any ~~Key Holder or Investor~~ Shareholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in either Regulation D promulgated under the Securities ~~Act~~Act of 1933 or NI 45-106, in either case, as amended, the Company may cause to be paid to any such ~~Key Holder or Investor~~ Shareholder in lieu thereof, against surrender of the ~~Key Holder~~ Shares ~~or Investor Shares, as applicable,~~ which would have otherwise been sold by such ~~Key Holder or Investor~~Shareholder, an amount in cash equal to the fair value (as determined in good faith by the ~~Board~~Company) of the securities which such ~~Key Holder or Investor~~ Shareholder would otherwise receive as of the date of the issuance of such securities in exchange for the ~~Key Holder Shares or Investor~~ Shares~~, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction~~. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 2 contracts

Sources: Voting Agreement (DAVIDsTEA Inc.), Voting Agreement (DAVIDsTEA Inc.)

Exceptions. Notwithstanding the foregoing, a Stockholder will not be required to comply with Section 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into by such Stockholder in connection with the transaction, nor the performance of ~~the~~ such Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any ~~agreement~~agreement to which such Stockholder is a party, or any law or judgment, order or decree of any court or governmental ~~agency~~agency that applies to such Stockholder; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (ec) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, ~~warranties~~ warranties, and covenants provided by all stockholders), ~~and~~ and, subject to the provisions of the Restated Certificate related to the allocation of the escrow, is pro rata in proportion to to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed ~~Sale (in accordance with the provisions of the Restated Certificate)~~Sale; (fd) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration ~~otherwise payable~~ paid to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (ge) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) ~~unless the~~ the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale, unless the holders of at least a majority of the Preferred Stock, voting together as a single class on an as-converted to Common Stock basis, elect to not treat such event as a Deemed Liquidation Event by written notice given to the Company at least ten (10) days prior to the effective date of such Proposed Sale; provided, however, that, notwithstanding the ~~foregoing provisions~~ foregoing, (A) the election to not treat such event as a Deemed Liquidation Event shall not apply to (1) the Series B Preferred Stock unless such electing holders include the holders of ~~this Subsection 3.3(g)~~a majority of the outstanding Series B Preferred Stock, voting or consenting together as a single class, in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale, or (2) the Series C Preferred Stock unless such electing holders include the holders of at least two-thirds (2/3rds) of the outstanding Series C Preferred Stock, voting or consenting together as a single class, in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale, or (B) if the consideration to be paid in exchange for ~~the~~ a Key ~~Holder~~ Holder’s Shares or ~~Investor~~ an Investor’s Shares, as applicable, pursuant to this ~~Subsection 3.3(g~~Section 3.3(e) includes any securities and due receipt thereof by ~~any~~ such Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any ~~person~~ Person as a broker or dealer or agent with respect to such ~~securities;~~ securities or (y) the provision to ~~any~~ such Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of ~~the~~ such Key ~~Holder~~ Holder’s Shares or ~~Investor~~ such Investor’s Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for ~~the~~ such Key ~~Holder~~ Holder’s Shares or ~~Investor~~ such Investor’s Shares, as applicable~~; provided, that, clause (iv) above shall not apply to a SPAC Transaction.~~; (hf) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; provided, however, that nothing in this Section 3.3(f) shall entitle any holder to receive any form of consideration that such holder would be ineligible to receive as a result of such holder’s failure to satisfy any condition, requirement or limitation that is generally applicable to the Company’s stockholders; and (ig) ~~such~~ the Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (~~including~~ including, without ~~limitation~~ limitation, any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale)) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company.

Appears in 2 contracts

Sources: Voting Agreement (Caribou Biosciences, Inc.), Voting Agreement (Caribou Biosciences, Inc.)

Exceptions. Notwithstanding the ~~foregoing~~forgoing, a Stockholder will not be required to comply with Section ~~3.2~~ 3.1 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders)Company; (ec) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders)Person, and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (fd) liability shall be limited to such Stockholder’s ~~applicable~~ pro rata share (determined ~~based on the respective~~ in proportion to proceeds ~~payable to each~~ received by such Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration ~~otherwise payable~~ actually paid to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (ge) upon the consummation of the Proposed Sale, (i) each holder of each ~~class or~~ series of the Company’s ~~stock will~~ Preferred Stock and each holder of Common Stock will, subject to Section 3.1(g), receive the same form of consideration for their shares of ~~such class or series as is received by other holders in respect of their shares of such same class or series of stock~~Common Stock and Preferred Stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred ~~Stock as is received by other holders in respect of their shares of such same series~~Stock, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common ~~Stock as is received by other holders in respect of their shares of Common~~ Stock, and (iv) unless the holders of at least a majority of the then outstanding shares of Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock, voting together as a single class on an as-converted basis, elect otherwise by written notice given to the Company at least ten (10) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the ~~Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale~~Restated Certificate; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction.and (hf) subject to clause (e) above, requiring the same form of consideration to be ~~available to~~ received by the holders of ~~any single class or series of capital stock~~the Company’s Common Stock and Preferred Stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 2 contracts

Sources: Stockholders Agreement (Blueprint Medicines Corp), Stockholders Agreement

Exceptions. Notwithstanding Section 6.02(b) or Section 6.03(a), at any time prior to the ~~foregoing, a Stockholder will not be required to comply with Section 3.2 above in connection with any proposed Sale~~ adoption of this Agreement by the ~~Company (the “Proposed Sale”) unless~~Company’s stockholders: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the ~~Stockholder holds all right~~Company, ~~title~~ directly or indirectly through advisors, agents or other intermediaries, may (A) engage in negotiations or discussions with any Third Party and ~~interest in and~~ its Representatives that, subject to the ~~Shares~~ Company’s compliance with Section 6.03(a), has made after the date of this Agreement a bona fide written Acquisition Proposal that the Board of Directors of the Company believes constitutes or is reasonably likely to lead to a Superior Proposal and (B) furnish to such ~~Stockholder purports~~ Third Party or its Representatives nonpublic information relating to ~~hold~~the Company or any of its Subsidiaries pursuant to a customary confidentiality agreement (a copy of which shall be provided for informational purposes only to Parent) with such Third Party; provided that all such information (to the extent that such information has not been previously provided or made available to Parent) is provided or made available to Parent, ~~free and clear of all liens and encumbrances~~as the case may be, prior to or substantially concurrently with the time it is provided or made available to such Third Party; and (ii) the ~~obligations~~ Board of Directors of the ~~Stockholder~~ Company may make a Company Adverse Recommendation Change; in ~~connection~~ each case referred to in the foregoing clauses (i) and (ii) only if the Board of Directors of the Company determines in good faith, after consultation with outside legal counsel, that the ~~transaction have been duly authorized~~failure to take such action would be inconsistent with its fiduciary duties under Delaware Law. In addition, ~~if applicable~~nothing contained herein shall prevent the Board of Directors of the Company from (i) complying with Rule 14e-2(a) under the 1934 Act with regard to an Acquisition Proposal so long as any position taken or statement made to so comply is consistent with this Section 6.03; provided that any such position taken or statement made that addresses or relates to the approval, ~~(iii) the documents to be entered into~~ recommendation or declaration of advisability by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery Company’s Board of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement Directors with respect to ~~such Proposed Sale that certain employees~~ this Agreement or ~~officers~~ an Acquisition Proposal shall be deemed to be a Company Adverse Recommendation Change unless the Board of Directors of the Company ~~be bound by a non-compete~~ reaffirms the Company Board Recommendation in such statement or ~~similar restrictive covenant or a release of claims pursuant to the definitive agreements~~ in connection with such ~~Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend~~ action or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) ~~each holder of~~ issuing a ~~series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series~~“stop, ~~(iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock,~~ look and ~~(iv) unless the the aggregate consideration receivable by all holders~~ listen” disclosure or similar communication of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Eventtype contemplated by Rule 14d-9(f) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the ~~Securities~~ 1934 Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 2 contracts

Sources: Merger Agreement (Pepsi Bottling Group Inc), Merger Agreement (Pepsico Inc)

Exceptions. Notwithstanding the foregoing, a Stockholder will not be required to comply with Section ~~3.2~~ 2.6(a) above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (ai) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such ~~Shares~~shares of Capital Stock, ~~including~~ including, but not limited to to, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the ~~Shares~~ shares of Capital Stock such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective ~~terms~~ terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (dii) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (eiii) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Restated Certificate related to the allocation of the escrow, is pro rata in proportion to to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed ~~Sale (in accordance with the provisions of the Restated Certificate)~~Sale; (fiv) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (gv) upon the consummation of the Proposed Sale, (iA) each holder of each class or series of ~~the Company’s stock~~ Common Stock, Preferred Stock and Derivative Securities will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of ~~stock~~Common Stock, Preferred Stock and Derivative Securities, (iiB) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (~~iii~~C) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (ivD) unless the holders of (i) at least sixty-five percent (65%) of the then outstanding shares of Series C Preferred Stock and (ii) at least sixty percent (60%) of the then outstanding shares of Series B Preferred Stock elect to receive a lesser amount by written notice given to the Company at least five (5) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of ~~the~~ Common Stock, Preferred Stock and ~~Common Stock~~ Derivative Securities shall be allocated among the holders of Common Stock, Preferred Stock and ~~Common Stock~~ Derivative Securities on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a ~~Deemed~~ Liquidation Event (assuming for this purpose that the Proposed Sale is a ~~Deemed~~ Liquidation Event) in accordance with the ~~Company’s~~ Restated Certificate ~~of Incorporation~~ in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the ~~foregoing provisions of this Subsection 3.3(g)~~foregoing, if the consideration to be paid in exchange for ~~the~~ a Key ~~Holder Shares~~ Holder’s Common Stock, Preferred Stock and Derivative Securities or ~~Investor Shares~~an Investor’s Common Stock, Preferred Stock and Derivative Securities, as applicable, pursuant to this ~~Subsection 3.3(g~~Section 2.6(b)(ii) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any ~~person~~ Person as a broker or dealer or agent with respect to such ~~securities;~~ securities or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key ~~Holder Shares~~ Holder’s Common Stock, Preferred Stock and Derivative Securities or ~~Investor Shares~~the Investor’s Common Stock, Preferred Stock and Derivative Securities, as applicable, ~~which~~ that would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the ~~Board~~Company) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key ~~Holder Shares~~ Holder’s Common Stock, Preferred Stock and Derivative Securities or ~~Investor Shares~~the Investor’s Common Stock, Preferred Stock and Derivative Securities, as applicable; ~~provided, that, clause (iv) above shall not apply to a SPAC Transaction.~~and (hvi) subject to ~~clause (e~~Section 2.6(b)(ii) ~~above,~~ above requiring the same form of consideration to be available to the holders of any single class or series of ~~capital stock~~Common Stock, Preferred Stock and Derivative Securities, if any holders of any ~~capital stock of the Company~~ Common Stock, Preferred Stock and Derivative Securities are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such ~~capital stock~~ Common Stock, Preferred Stock and Derivative Securities will be given the same option; ~~and (i~~provided, however, that nothing in this Section 2.6(b)(iii) shall entitle any holder to receive any form of consideration that such ~~Stockholder~~ holder would be ineligible to receive as a result of such holder’s failure to satisfy any condition, requirement or limitation that is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party generally applicable to the ~~Proposed Sale)~~Company’s stockholders.

Appears in 2 contracts

Sources: Stockholders' Agreement, Stockholders Agreement (G1 Therapeutics, Inc.)

Exceptions. Notwithstanding the foregoing, ~~a Stockholder~~ no Athyrium Investor will ~~not~~ be required to comply with ~~Section 3.2~~ section above in connection with any ~~proposed~~ Sale of the Company ~~(the “Proposed Sale”)~~ unless: (aA) any representations and warranties to be made by such ~~Stockholder~~ Athyrium Investor in connection with the ~~Proposed~~ Sale of the Company are limited to representations and warranties related to authority, ownership and the ability to convey title to such Warrant Shares, including ~~but not~~ and limited to representations and warranties that (iw) any escrow of proceeds of any such transaction shall be withheld on at least a pro rata basis among all stockholders of the ~~Stockholder~~ Company, (x) such Athyrium Investor holds all right, title and interest in and to the Warrant Shares such ~~Stockholder~~ Athyrium Investor purports to hold, free and clear of all liens and encumbrances, (iiy) the obligations of ~~the Stockholder~~ such Athyrium Investor in connection with the transaction have been duly authorized, if applicable, and (~~iii~~z) the documents to be entered into by ~~the Stockholder~~ such Athyrium Investor have been duly executed by ~~the Stockholder~~ such Athyrium Investor and delivered to the acquirer and are enforceable against ~~the Stockholder~~ such Athyrium Investor in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agencyterms; (bB) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party subject to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the applicable provisions of the ~~Restated Certificate); (f)~~ Certificate of Incorporation, the liability of an Athyrium Investor shall be limited to such ~~Stockholder~~Athyrium Investor’s ~~applicable~~ pro rata share (determined ~~based on the respective~~ in proportion to proceeds ~~payable to each Stockholder~~ received by such Athyrium Investor in connection with such ~~Proposed~~ Sale of the Company in accordance with the applicable provisions of the ~~Restated Certificate~~Certificate of Incorporation) of a negotiated aggregate indemnification amount ~~that applies equally to all Stockholders~~ but that in no event ~~exceeds~~ shall that amount exceed the amount of consideration ~~otherwise payable~~ actually paid to such ~~Stockholder~~ Athyrium Investor in connection with such ~~Proposed Sale,~~ Sale of the Company; except with respect to (x) representations and warranties of such Athyrium Investor relating to authority, ownership and ability to convey title to such Warrant Shares, (y) any covenants made by such Athyrium Investor with respect to confidentiality or voting related to the Sale of the Company, or (z) claims related to fraud or willful breach by such ~~Stockholder~~Athyrium Investor, the liability for each of which ~~need not be limited~~ may exceed the limitation set forth above, if and to the extent that such additional liability has been approved by and borne by the Requisite Holders (as ~~to such Stockholder;~~defined in the Certificate of Incorporation); and (gC) upon the consummation of the ~~Proposed Sale~~Sale of the Company, (iw) each holder of ~~each class or~~ shares of any series of the ~~Company’s stock~~ Preferred Stock and each holder of Common Stock will receive the same form of consideration for their shares of ~~such class or series~~ Preferred Stock and Common Stock, respectively, as ~~is received by~~ each other ~~holders in respect~~ holder of ~~their shares of such same class or series of stock~~Preferred Stock and Common Stock, respectively, (iix) each holder of a series of Preferred Stock will receive the same ~~amount~~ value of consideration per share of such series of Preferred ~~Stock as is received by other holders in respect of their shares of such same series~~Stock, (~~iii~~y) each holder of Common Stock will receive the same ~~amount~~ value of consideration per share of Common ~~Stock as is received by other holders in respect of their shares of Common~~ Stock, and (ivz) unless elected by the holders of the Preferred Stock in accordance with the Certificate of Incorporation, the aggregate consideration receivable by all holders of ~~the~~ any series of Preferred Stock and Common Stock shall be allocated among the holders of such Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of such Preferred Stock and the holders of Common Stock are entitled in a Liquidation Event or Deemed Liquidation Event as defined in and pursuant to Section IV.C.2(a) and (c) of the Certificate of Incorporation, and assuming for this purpose that the ~~Proposed~~ Sale of the Company is a Deemed Liquidation Event) in accordance with the ~~Company’s~~ Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender Sale of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC TransactionCompany. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 2 contracts

Sources: Common Stock Purchase Warrant (Lpath, Inc), Credit Agreement (Lpath, Inc)

Exceptions. Notwithstanding the foregoing, a Stockholder will not be required to comply with Section ~~3.2~~ 5.1 above in connection with any proposed Sale Event of the Company (the “Proposed Sale”) ), unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, ~~including~~ including, but not limited to to, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective ~~terms~~ terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (ec) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Charter related to the allocation of the escrow, is pro rata in proportion to to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed ~~Sale (in accordance with the provisions of the Restated Certificate)~~Sale; (fd) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the ~~Restated Certificate~~Charter) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (ge) upon the consummation of the Proposed ~~Sale,~~ Sale (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless a Preferred Majority (as defined in the Charter) elect to receive a lesser amount by written notice given to the Company at least 5 days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a ~~Deemed~~ deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a ~~Deemed~~ deemed Liquidation Event) in accordance with the ~~Company’s Certificate of Incorporation~~ Charter in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction.and (hf) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; ~~and (i~~provided, however, that nothing in this Section 5.2(f) shall entitle any holder to receive any form of consideration that such ~~Stockholder~~ holder would be ineligible to receive as a result of such holder’s failure to satisfy any condition, requirement or limitation that is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party generally applicable to the ~~Proposed Sale)~~Company’s stockholders.

Appears in 2 contracts

Sources: Stockholders Agreement (Quanterix Corp), Stockholders Agreement (Quanterix Corp)

Exceptions. Notwithstanding ~~the foregoing~~Section 13.1, ~~a Stockholder will not be required~~ any party hereto may disclose any Confidential Information: (a) to ~~comply with Section 3.2 above~~ any Governmental Entity in connection with applications for approval of the transactions contemplated hereby and the other Transaction Documents (or, in the case of any ~~proposed Sale~~ regulated Affiliate of a Member, in connection with audits by the applicable Governmental Entities), (b) to financial institutions in connection with financings of the transactions contemplated hereby, (c) in the case of any Member, (i) to a bona fide potential Transferee if such Member desires to undertake any Transfer of its Membership Interests permitted by this Agreement, (ii) to its stockholders, limited partners, members or other equityholders, as the case may be, all materials made available to such Member pursuant to the terms of this Agreement and (iii) to its indirect stockholders, limited partners, members or other equityholders, as the case may be, so long as the Confidential Information disclosed to such Persons is limited to the materials delivered to such party pursuant to Section 4.5(a), provided that (A) in the case of subclauses (i), (ii) and (iii) of this clause (c), prior to the disclosure of any Confidential Information, such Person shall execute an agreement containing substantially the terms set forth in Section 13.1 and this Section 13.2, and (B) in the case of clauses (ii) and (iii) above, the disclosure of Confidential Information relating to commercial transactions or commercial relationships of the Company ~~(the “Proposed Sale”) unless: (a) any representations~~ and ~~warranties~~ its Subsidiaries shall be strictly limited to ~~be made by~~ such ~~Stockholder~~ Persons who have an actual need to know such information in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and administration of their equity interest in ~~and to the Shares~~ such ~~Stockholder purports to hold, free and clear of all liens and encumbrances~~Member, (iid) ~~the obligations of the Stockholder~~ to any rating or similar agency in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach its analysis or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers review of the Company ~~be bound by a non-compete~~ or ~~similar restrictive covenant or a release~~ any of ~~claims pursuant~~ its Subsidiaries, and (e) to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person if such party becomes compelled by Law (including by deposition, interrogatory, request for documents, subpoena, civil investigative demand, mandatory provision of Law, regulation or stock exchange rule) to disclose any of the Confidential Information. In addition, each Member may report to its stockholders, limited partners, members or other equityholders, as the case may be, the general status of such Member’s investment in ~~connection with the Proposed Sale, other than~~ the Company (~~except to the extent that funds may~~ without disclosing specific Confidential Information). A disclosing Member shall be ~~paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as~~ responsible for a breach by any ~~stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of~~ third Person to whom such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (disclosing Member discloses Confidential Information in accordance with the ~~provisions~~ terms of ~~the Restated Certificate);~~ subclauses (fc)(ii) ~~liability shall be limited to such Stockholder’s applicable share~~ and (~~determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate~~c)(iii) of ~~a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds~~ this Section 13.2. In the ~~amount~~ case of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, ~~requiring~~ the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and disclosing party shall (i) provide the other parties hereto with prompt written notice of such ~~Stockholder~~ requirement so that such non-disclosing parties may seek a protective order or other appropriate remedy or waive compliance with the terms of this Article XIII and (ii) take such reasonable legally available steps as the non-disclosing parties may reasonably request to resist or narrow such requirement (at the expense of the non-disclosing parties). In the event that such protective order or remedy is not obtained, or that the non-disclosing parties waive compliance with the terms hereof, the disclosing party agrees to furnish only that portion of the Confidential Information that it is advised by counsel is required to ~~agree (unless~~ be furnished, and to exercise its commercially reasonable efforts to obtain assurance that confidential treatment shall be accorded such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale)Confidential Information.

Appears in 2 contracts

Sources: Limited Liability Company Operating Agreement, Limited Liability Company Operating Agreement (Gmac LLC)

Exceptions. Notwithstanding the foregoing, a Stockholder will not be required to comply with Section ~~3.2~~ 1.3(a) above in connection with any proposed ~~Sale of the Company (the “Proposed Sale”)~~ Drag-Along Transaction unless: (ai) any representations and warranties to be made by such Stockholder in connection with the ~~Proposed Sale~~ Drag-Along Transaction are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (iA) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (iiB) the obligations of the Stockholder in connection with the ~~transaction~~ Drag-Along Transaction have been duly authorized, if applicable, (~~iii~~C) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the ~~acquirer~~ Drag-Along Offeror and are enforceable against the Stockholder in accordance with their respective ~~terms~~ terms, and (ivD) neither the execution and delivery of documents to be entered into in connection with the ~~transaction~~Drag-Along Transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental ~~agency~~agency by which such Stockholder is subject or bound; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (dii) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the ~~Proposed Sale~~Drag-Along Transaction, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders)Company; (eiii) the liability for indemnification, if any, of such Stockholder in the ~~Proposed Sale~~ Drag-Along Transaction and for the inaccuracy of any representations and warranties made by the Company in connection with such ~~Proposed Sale~~Drag-Along Transaction, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders)Person, and is pro rata in ~~proportion~~ accordance with the consideration received by such Stockholder; (iv) the Stockholder shall not, in connection with such Drag-Along Transaction, be required to sign a non-compete agreement or agree to any non-compete covenant; (v) liability shall be limited to the amount of consideration actually paid to such Stockholder in connection with such ~~Proposed Sale (in accordance with the provisions of the Restated Certificate);~~Drag-Along Transaction; and (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (gvi) upon the consummation of the ~~Proposed Sale~~Drag-Along Transaction, ~~(i)~~ each holder of each class or series of the Company’s stock will receive the same form and amount of consideration for ~~their shares~~ each of its Shares of such class or series as is received by each other ~~holders~~ holder in respect of ~~their shares~~ each of its Shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 2 contracts

Sources: Convertible Note Subscription Agreement, Stockholders Agreement (Quadrant Biosciences Inc)

Exceptions. Notwithstanding the ~~foregoing~~forgoing, a ~~Stockholder~~ Shareholder will not be required to comply with Section ~~3.2~~ 2.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such ~~Stockholder~~ Shareholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the ~~Stockholder~~ Shareholder holds all right, title and interest in and to the Shares such ~~Stockholder~~ Shareholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the ~~Stockholder~~ Shareholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the ~~Stockholder~~ Shareholder have been duly executed by the ~~Stockholder~~ Shareholder and delivered to the acquirer and are enforceable against the ~~Stockholder~~ Shareholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the ~~Stockholder~~Shareholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) ~~such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with~~ the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder Shareholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders)Company; (ec) the liability for indemnification, if any, of such ~~Stockholder~~ Shareholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders)Person, and is pro rata in ~~proportion to the amount of consideration paid to such Stockholder in connection~~ accordance with such ~~Proposed Sale (in accordance with the provisions~~ Shareholder’s relative stock ownership of the ~~Restated Certificate~~Company (but reflecting the overall priority of the Common Shares and the Preferred Shares, with any theoretical indemnification liability to be treated as a reduction of the purchase price for the purpose of allocating the proceeds thereof); (fd) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration ~~otherwise payable~~ actually paid to such ~~Stockholder~~ Shareholder in connection with such Proposed Sale, except with respect to (i) representations and warranties of such Shareholder related to authority, ownership and the ability to convey title to such Shares, (ii) any covenants made by such Shareholder with respect to confidentiality or voting related to the Proposed Sale or (iii) claims related to fraud or willful breach by such ~~Stockholder~~Shareholder, the liability for which need not be ~~limited as to such Stockholder~~limited; (ge) upon the consummation of the Proposed Sale, (i) each holder of the Preferred Shares and each ~~class or series~~ holder of ~~the Company’s stock~~ Common Shares will receive the same form of consideration for their ~~shares of such class or series as is received by other holders in respect of~~ Preferred Shares and their ~~shares of such same class or series of stock~~Common Shares, (ii) each holder of ~~a series of~~ the Series B Preferred ~~Stock~~ will receive the same amount of consideration per share of ~~such series of~~ the Series B Preferred ~~Stock as is received by other holders in respect of their shares of such same series,~~ (iii) each holder of ~~Common Stock~~ the Series A Preferred will receive the same amount of consideration per share of the Series A Preferred, (iv) each holder of the Common ~~Stock as is received by other holders in respect~~ Shares will receive the same amount of ~~their shares~~ consideration per share of the Common ~~Stock~~Shares, and (ivv) unless the holders of at least a majority of the Preferred Shares, voting together as a single class, elect otherwise by written notice given to the Company at least ten (10) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Series B Preferred, the Series A Preferred ~~Stock~~ and the Common ~~Stock~~ Shares shall be allocated among the holders of the Series B Preferred, the Series A Preferred ~~Stock~~ and the Common ~~Stock~~ Shares on the basis of the relative liquidation preferences to which the holders of ~~each respective series of~~ the Series B Preferred, the Series A Preferred ~~Stock~~ and the holders of the Common ~~Stock~~ Shares are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s ~~Certificate~~ Articles of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction.; (hf) subject to clause (e) above, requiring the same form of consideration to be ~~available to~~ received by the holders of ~~any single class or series of capital stock~~the Common Shares and the Preferred Shares, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (ig) in the case of the Investors, such ~~Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the~~ Proposed Sale (~~including without limitation any covenant not to compete~~ i) provides solely for cash consideration or ~~covenant not to solicit customers~~marketable securities, ~~employees or suppliers~~ (ii) provides for the payment of ~~any party~~ consideration in a manner consistent with the provisions of Section 3 of Part A of the Company’s Articles of Incorporation and (iii) to the extent the Investors retain an equity interest in the Company or any successor entity following the consummation of such Proposed Sale), does not contain terms or conditions which would require any approval of the Preferred Shares pursuant to Section 2(b) of Part A of the Company’s Articles of Incorporation which has not been obtained.

Appears in 2 contracts

Sources: Voting Agreement (Paylocity Holding Corp), Voting Agreement (Paylocity Holding Corp)

Exceptions. Notwithstanding Section 7.4(a), but subject to Section 7.4(c), at any time prior to the ~~foregoing~~Acceptance Time, if the Company or any of its Representatives has received a ~~Stockholder will~~ bona fide written Acquisition Proposal that the Company Board reasonably believes constitutes or is reasonably likely to lead to a Superior Proposal, the Company, directly or indirectly through its Representatives, may, as long as the Company, its Subsidiaries and their Representatives shall not ~~be required to comply~~ have previously breached or taken any action inconsistent with Section ~~3.2 above~~ 7.4(a), (i) engage in ~~connection~~ negotiations or discussions with such Third Party and its Representatives, and (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating to the Company or any ~~proposed Sale~~ of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to such Third Party, in each case pursuant to an Acceptable Confidentiality Agreement with such Third Party; provided, however, that all such information (to the ~~“Proposed Sale”~~extent that such information has not been previously provided or made available to Parent) ~~unless:~~ is provided or made available to Parent prior to or concurrently with the time it is provided or made available to such Third Party; provided, further, however, that prior to taking (aand thereafter continuing) any ~~representations~~ action described in Section 7.4(b)(i) or Section 7.4(b)(ii) above, (A) the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties to the holders of Company Common Stock under applicable law and ~~warranties~~ (B) the Company Board determines in good faith, based on the information then available and after consultation with its independent financial advisor and outside legal counsel, that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal. Neither the Company nor any of its Subsidiaries shall, after the date of this Agreement, enter into any confidentiality agreement that would prohibit them from providing such information to Parent. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, nothing in this Agreement shall prevent the Company or the Company Board, at any time prior to the Acceptance Time, from (i) taking and disclosing to the Company’s shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act (or any similar communication to shareholders required to be made by ~~such Stockholder~~ applicable statute, law, rule or regulation in connection with the ~~Proposed Sale are limited to representations and warranties related to authority~~making or amendment of a tender offer or exchange offer), ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, or (ii) making any required disclosure to shareholders with regard to any Acquisition Proposal, in each case so long as such action is consistent with this Section 7.4 and if the ~~obligations of~~ Company Board determines in good faith after consultation with outside counsel that the ~~Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents~~ failure to take such action would be reasonably likely to be ~~entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance~~ inconsistent with ~~their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction~~its fiduciary duties under applicable law; provided, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not ~~limit any requirement contained in a definitive agreement with respect~~ be deemed to ~~such Proposed Sale that certain employees or officers of~~ permit the Company ~~be bound by a non-compete or similar restrictive covenant or a release of claims~~ Board to make an Adverse Company Recommendation Change except pursuant to Section 7.4(d) hereof or to otherwise modify the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the definition of Adverse Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC TransactionRecommendation Change. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 2 contracts

Sources: Merger Agreement, Merger Agreement (Engility Holdings, Inc.)

Exceptions. Notwithstanding anything to the ~~foregoing~~contrary in this Agreement, ~~a Stockholder will~~ at any time prior to the time, but not ~~be required to comply with Section 3.2 above in connection with any proposed Sale of~~ after, the Company (Stockholder Approval is obtained, the ~~“Proposed Sale”) unless: (a) any representations~~ Company and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that its Representatives may (i) provide information in response to a request therefor by a Person who has made a bona fide written Acquisition Proposal if the ~~Stockholder holds all right~~Company did not violate Section 5.3(a) in respect of such Person (other than immaterial or inadvertent violations not intended to result in an Acquisition Proposal) and receives from such Person an executed confidentiality agreement on terms that, ~~title and interest in and~~ taken as a whole, are not materially less restrictive to the ~~Shares~~ other party than those contained in the Confidentiality Agreements (it being understood that such ~~Stockholder purports~~ confidentiality agreement need not contain a standstill provision or otherwise prohibit the making, or amendment, of an Acquisition Proposal (any confidentiality agreement satisfying the criteria of this clause (i) being an “Acceptable Confidentiality Agreement”)), and promptly (and in any event within twenty-four (24) hours thereafter) makes available to ~~hold~~Parent any material non-public information concerning the Company or the Company Subsidiaries that the Company provides to any such Person that was not previously made available to Parent; (ii) engage or participate in any discussions or negotiations with any Person who has made such a bona fide written Acquisition Proposal; or (iii) after having complied with Section 5.3(e), ~~free~~ authorize, adopt, approve, recommend or otherwise declare advisable or propose to authorize, adopt, approve, recommend or declare advisable (publicly or otherwise) such an Acquisition Proposal, if and ~~clear of all liens and encumbrances~~only to the extent that, (x) prior to taking any action described in clause (i), (ii) ~~the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable,~~ or (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholderabove, the Company ~~and/or other stockholders of the Company;~~ Board determines in good faith (dafter consultation with its financial advisors and its outside legal counsel) ~~the Stockholder shall not~~ that failure to take such action would be ~~liable for the inaccuracy of any representation or warranty made by any other Person in connection~~ inconsistent with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s directors’ fiduciary duties under applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed SaleLaw, (a) in each such case referred to in clause (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock), (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, or (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as Board has determined in good faith by (after consultation with its financial advisors and its outside legal counsel) based on the ~~Board~~information then available that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal and (b) of in the ~~securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities~~ case referred to in ~~exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that,~~ clause (~~iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e~~iii) above, ~~requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of~~ the Company ~~are given an option as to the form~~ Board determines in good faith (after consultation with its financial advisors and ~~amount of consideration to be received as a result of the Proposed Sale, all holders of~~ its outside legal counsel) that such ~~capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder~~ Acquisition Proposal is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale)Superior Proposal.

Appears in 2 contracts

Sources: Merger Agreement (SolarWinds, Inc.), Merger Agreement (SolarWinds, Inc.)

Exceptions. ~~Notwithstanding~~ The Board of Trustees, in its sole discretion, may grant to any Person who makes a request therefor (a “Requesting Person”) an exception to the ~~foregoing~~Ownership Limit (or one or more elements thereof) with respect to the ownership of any series or class of Shares, ~~a Stockholder will not be required~~ subject to ~~comply with Section 3.2 above~~ the following conditions and limitations: (x) the Board of Trustees shall have determined, in ~~connection with any proposed Sale~~ its discretion, that: (A) the Beneficial Ownership or Constructive Ownership of Equity Shares by such Shareholder in excess of the ~~Company~~ Ownership Limit would not violate Section 5.2(a)(ii), (B) the ~~“Proposed Sale”) unless:~~ Requesting Person’s ownership of Equity Shares in excess of the Ownership Limit pursuant to the exception requested hereunder (~~a) any representations and warranties to be made by such Stockholder in connection~~ together with the ~~Proposed Sale are limited to representations and warranties related to authority~~ownership of Equity Shares by all other Persons as permitted under this Article V, ~~ownership and the ability to convey title to such Shares, including but~~ taking into account any previously granted exceptions pursuant hereto) would not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a ~~breach or violation of~~ default under the terms of any ~~agreement~~contract to which the Trust or any of its subsidiaries is a party or reasonably expects to become a party and (C) the Requesting Person’s ownership of Shares in excess of the Ownership Limit pursuant to the exception requested hereunder (together with the ownership of Shares by all other Persons as permitted under this Article V, ~~law or judgment, order or decree~~ taking into account any previously granted exceptions pursuant hereto) is in the best interests of ~~any court or governmental agency;~~ the Trust and (by) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party Requesting Person provides to the ~~Proposed Sale~~Board of Trustees, for the benefit of the Trust, such representations and undertakings, if any, as the Board of Trustees may, in its discretion, determine to be necessary in order for it to make the determination that the conditions set forth in clause (x) have been and/or will continue to be satisfied (including, without limitation, an agreement as to a reduced Ownership Limit or Excepted Holder Limit for such Requesting Person with respect to the Constructive Ownership of one or more other classes or series of Equity Shares not subject to the exception), and such Requesting Person agrees that any violation of such representations and undertakings or any ~~release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder~~ attempted violation thereof will give rise to the application of the ~~Company; provided that,~~ remedies set forth in Sections 5.2(b) and 5.2(d) with respect to Equity Shares held in excess of the ~~foregoing shall not limit any requirement contained in a definitive agreement~~ Ownership Limit or the Excepted Holder Limit (as may be applicable) with respect to such ~~Proposed Sale that certain employees or officers~~ Requesting Person (determined without regard to the exception granted such Requesting Person under this Section 5.2(i)(i). If a member of the ~~Company be bound by a non-compete or similar restrictive covenant or a release~~ Board of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except Trustees requests that the ~~Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders~~ Board of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of Trustees grant an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, exception pursuant to this ~~Subsection 3.3(g~~Section 5.2(i) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such ~~securities;~~ member, or ~~(y) the provision~~ with respect to any ~~Key Holder or Investor~~ other Person if such member of ~~any information other than such information as a prudent issuer~~ the Board of Trustees would ~~generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause~~ be considered to be ~~paid~~ the Beneficial Owner or Constructive Owner of Equity Shares owned by such other Person, such member of the Board of Trustees shall not participate in the decision of the Board of Trustees as to whether to grant any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transactionexception. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 2 contracts

Sources: Agreement and Declaration of Trust (Peerless Value Opportunity Fund), Agreement and Declaration of Trust (Peerless Value Opportunity Fund)

Exceptions. Notwithstanding the foregoing, a Stockholder will not be required to comply with Section 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) ), unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, ~~including~~ including, but not limited to to, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective ~~terms~~ terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (ec) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and subject to the provisions of the Restated Certificate related to the allocation of the escrow, is pro rata in proportion to to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed ~~Sale (in accordance with the provisions of the Restated Certificate)~~Sale; (fd) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (ge) upon the consummation of the Proposed ~~Sale,~~ Sale (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Series A Preferred Stock will receive the same amount of consideration per share of such series of Series A Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the holders of at least a majority of the Series A Preferred Stock elect to receive a lesser amount by written notice given to the Company at least five (5) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Series A Preferred Stock and Common Stock shall be allocated among the holders of Series A Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Series A Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the ~~foregoing provisions of this Subsection 3.3(g)~~foregoing, if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this ~~Subsection 3.3(g~~Section 3.3(e) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the ~~Board~~Company) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; ~~provided, that, clause (iv) above shall not apply to a SPAC Transaction.~~and (hf) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; ~~and (i~~provided, however, that nothing in this Section 3.3(f) shall entitle any holder to receive any form of consideration that such ~~Stockholder~~ holder would be ineligible to receive as a result of such holder’s failure to satisfy any condition, requirement or limitation that is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party generally applicable to the ~~Proposed Sale)~~Company’s stockholders.

Appears in 2 contracts

Sources: Voting Agreement (Lantern Pharma Inc.), Voting Agreement (Lantern Pharma Inc.)

Exceptions. Notwithstanding the foregoing, a ~~Stockholder~~ Member will not be required to comply with Section ~~3.2~~ ‎10.07‎(b) above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (ai) any representations and warranties to be made by such ~~Stockholder~~ Member in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such ~~Shares~~Units, including but not limited to representations and warranties that (iA) the ~~Stockholder~~ Member holds all right, title and interest in and to the ~~Shares~~ Units such ~~Stockholder~~ Member purports to hold, free and clear of all liens and encumbrances, (iiB) the obligations of the ~~Stockholder~~ Member in connection with the transaction have been duly authorized, if applicable, (~~iii~~C) the documents to be entered into by the ~~Stockholder~~ Member have been duly executed by the ~~Stockholder~~ Member and delivered to the acquirer and are enforceable against the ~~Stockholder~~ Member in accordance with their respective terms and (ivD) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the ~~Stockholder~~Member’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (dii) the ~~Stockholder~~ Member shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than for the inaccuracy of any representation or warranty made by the Company in connection with the Proposed Sale (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any ~~stockholder~~ Member of any of identical representations, warranties and covenants provided by all ~~stockholders~~Members); (eiii) the liability for indemnification, if any, of such ~~Stockholder~~ Member in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Members in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any ~~stockholder~~ Member of any of identical representations, warranties and covenants provided by all ~~stockholders~~Members), and subject to the provisions of this Agreement, and is pro rata in proportion to the amount of consideration paid to such ~~Stockholder~~ Member in connection with such Proposed Sale (in accordance with the provisions of this Agreement related to the ~~Restated Certificate~~allocation of the escrow); (fiv) a Member’s liability shall be limited to such ~~Stockholder~~Member’s ~~applicable~~ pro rata share (determined based on the respective proceeds payable to each ~~Stockholder~~ Member in connection with such Proposed Sale in accordance with the provisions of ~~the Restated Certificate~~this Agreement) of a negotiated aggregate indemnification amount that applies equally to all ~~Stockholders~~ Members but that in no event exceeds the amount of consideration ~~otherwise payable~~ actually paid to such ~~Stockholder~~ Member in connection with such Proposed Sale, except with respect to claims ~~related to~~ of fraud by such ~~Stockholder~~Member, the liability for which need not be limited as to such ~~Stockholder~~Member; (gv) upon the consummation of the Proposed Sale: (A) except as provided in Section ‎10.07‎(b)(vi), ~~(i)~~ each holder of each class or series of ~~the Company’s stock~~ Units will receive the same form of consideration for their ~~shares~~ Units of such class or series as is received by other holders in respect of their ~~shares~~ Units of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, Units; and (ivB) ~~unless the~~ the aggregate consideration receivable by all holders of ~~the Preferred Stock and Common Stock~~ Units shall be allocated among the holders of Series B Preferred ~~Stock~~ Units, Series A Preferred Units, Common Units and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) Incentive Units in accordance with ~~the Company’s Certificate~~ Section ‎8.01 of ~~Incorporation in effect immediately prior~~ this Agreement as if such consideration were distributed to the ~~Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g~~Members pursuant thereto; (vi) except as provided in Section ‎10.07‎(b)‎(b)(vi), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (ev) above, requiring the same form of consideration to be available to the holders of any single class or series of ~~capital stock~~Units, if any holders of any ~~capital stock of the Company~~ Units are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such ~~capital stock~~ Units will be given the same option; and (ivii) ~~such Stockholder~~ no Member who is not an employee shall be required to agree ~~(unless such Stockholder is a Company officer or employee)~~ to any restrictive covenant in connection with the Proposed Sale (~~including~~ including, without ~~limitation~~ limitation, any covenant not to compete with or covenant not to solicit or hire customers, employees or suppliers of any party to the Proposed Sale)) or any release of claims other than a release in customary form of claims arising solely in such Member’s capacity as a Member of the Company.

Appears in 2 contracts

Sources: Limited Liability Company Agreement (Apogee Therapeutics, Inc.), Limited Liability Company Agreement (Apogee Therapeutics, LLC)

Exceptions. Notwithstanding the foregoing, a Stockholder will not be required to comply with Section ~~3.2~~ 6.3(b) above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (ai) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (iA) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (iiB) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (~~iii~~C) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (ivD) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (dii) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (eiii) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (fiv) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (gv) upon the consummation of the Proposed Sale, (iA) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (iiB) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (~~iii~~C) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (ivD) unless the holders of at least a Majority in Interest of the Series A-1 Preferred Stock elect otherwise by written notice given to the Company at least ten (10) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction.and (hvi) subject to clause (ev) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 1 contract

Sources: Investors’ Rights Agreement (Rules-Based Medicine Inc)

Exceptions. Notwithstanding the foregoing, a ~~Stockholder~~ Member will not be required to comply with Section ~~3.2~~ 11.14(a) above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (ai) any representations and warranties to be made by such ~~Stockholder~~ Member in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, Member’s Units; (ii) the ~~obligations~~ Member is not required to agree (unless such Member is an officer or employee of the ~~Stockholder in connection with the transaction have been duly authorized, if applicable, (iii~~Company) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (~~including~~ including, without ~~limitation~~ limitation, any covenant not to compete or covenant not to solicit customers, employees or suppliers of any ~~party~~ part to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale); (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (diii) the ~~Stockholder~~ Member shall not be liable for the inaccuracy of any representation or warranty made by any other ~~Person~~ person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders)LLC; (eiv) the liability for indemnification, if any, of such ~~Stockholder~~ Member in the Proposed Sale and for the inaccuracy of any representations and warranties made by the ~~Company~~ LLC in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders)person, and is pro rata in proportion to the amount of consideration paid to such ~~Stockholder~~ Member in connection with such Proposed Sale (in accordance with the provisions of ~~the Restated Certificate~~this Agreement);; and (fv) ~~liability shall be limited to such Stockholder’s applicable share (determined based on~~ the ~~respective~~ proceeds ~~payable to each Stockholder in connection with~~ of such Proposed Sale will be distributed in accordance with the provisions of Section 10.1. During the ~~Restated Certificate)~~ term of ~~a negotiated aggregate indemnification amount that applies equally~~ this Agreement, each of the Members agrees to vote all ~~Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud~~ Units now or hereafter owned by such ~~Stockholder~~Member, ~~the liability for which need not be limited~~ whether beneficially or otherwise, or as to which such ~~Stockholder; (g) upon the consummation~~ Member has voting power at a regular or special meeting of the ~~Proposed Sale,~~ Members (~~i) each holder of each class~~ or ~~series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received~~ by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Eventwritten consent) in accordance with the ~~Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing~~ provisions of this ~~Subsection 3.3(g)~~Section 11.13. Upon the failure of any Member to vote their Units in accordance with the terms of this Section 11.13, if such Member hereby grants to the ~~consideration~~ LLC a proxy coupled with an interest in all Units owned by such Member, which proxy shall be irrevocable until this Agreement terminates pursuant to ~~be paid~~ its terms or this Section 11.13 is amended to remove such grant of proxy in ~~exchange~~ accordance with Section 14.1 hereof, to vote all such Units at a regular or special meeting of the Members (or by written consent) as necessary or required to effect the transactions contemplated by this Section 11.13. It is agreed and understood that monetary damages would not adequately compensate an injured Member for the ~~Key Holder Shares or Investor Shares, as applicable, pursuant to~~ breach of this ~~Subsection 3.3(g) includes any securities and due receipt thereof~~ Section 11.13 by any ~~Key Holder~~ other Member, that this Section 11.13 shall be specifically enforceable, and that any breach or ~~Investor would require under applicable~~ threatened breach of this Section 11.13 shall be the proper subject of a temporary or permanent injunction or restraining order. Further, each Member waives any claim or defense that there is an adequate remedy at law ~~(x) the registration~~ for such breach or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transactionthreatened breach. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 1 contract

Sources: Limited Liability Company Agreement

Exceptions. ~~Notwithstanding the foregoing, a Stockholder will~~ (1) A person shall not be ~~required~~ deemed to ~~comply~~ "Beneficially Own" or have "Beneficial Ownership" of any particular WellPoint shares by reason of possessing the right to vote if (i) such right arises solely from a revocable proxy or consent given to such person in response to a public proxy or consent solicitation made pursuant to, and in accordance with, the applicable rules and regulations promulgated under the Exchange Act, and (ii) such person is not the Purported Owner of any Excess Shares (as those terms are used in Article VII of WellPoint's Charter), is not named as holding a beneficial ownership interest in any WellPoint shares in any filing on Schedule 13D, and is not an affiliate or associate of any such Purported Owner or named person. (2) A member of a national securities exchange or a registered depository shall not be deemed to "Beneficially Own" or have "Beneficial Ownership" of any particular WellPoint shares held directly or indirectly by it on behalf of another person (and not for its own account) solely because such member or depository is the record holder of such WellPoint shares, and (in the case of such member) pursuant to the rules of such exchange, such member may direct the vote of those WellPoint shares without instruction on matters which are uncontested and do not affect substantially the rights or the privileges of the holders of the shares to be voted, but is precluded by the rules of such exchange from voting those particular WellPoint shares without instruction on either contested matters or matters that may affect substantially the rights or the privileges of the holders of the WellPoint shares to be voted. (3) A person who in the ordinary course of business is a pledgee of WellPoint shares under a written pledge agreement shall not be deemed to "Beneficially Own" or have "Beneficial Ownership" of those pledged WellPoint shares solely by reason of such pledge until the pledgee has taken all formal steps (A) The pledge agreement is bona fide and was not entered into with ~~Section 3.2 above~~ the purpose nor with the effect of changing or influencing the control of WellPoint, nor in connection with any ~~proposed Sale of~~ transaction having such purpose or effect, including any transaction subject to Rule 13d-3(b) promulgated under the ~~Company (~~Exchange Act as constituted on the ~~“Proposed Sale”) unless:~~date hereof; and (aB) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but The pledge agreement does not ~~limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and~~ grant to the ~~Shares such Stockholder purports~~ pledgee the right to ~~hold, free and clear of all liens and encumbrances, (ii)~~ vote or to direct the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, vote of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their pledged WellPoint shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the ~~Proposed Sale; provided~~time the pledgee has taken all formal steps which are necessary to declare a default. (4) A person engaged in business as an underwriter or a placement agent for securities who enters into an agreement to acquire or acquires any particular WellPoint shares solely by reason of its participation in good faith and in the ordinary course of its business in the capacity of underwriter or placement agent in any underwriting or agent representation registered under the Securities Act of 1933, ~~however, that, notwithstanding~~ as amended and as constituted on the ~~foregoing provisions of this Subsection 3.3(g~~date hereof (the "Securities Act"), ~~if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares~~a bona fide private placement, ~~as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require~~ a resale under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D Rule 144A promulgated under the Securities ~~Act,~~ Act or in any foreign or other offering exempt from the ~~Company may cause~~ registration requirements under the Securities Act shall not be deemed to ~~be paid to any such Key Holder~~ "Beneficially Own" or ~~Investor in lieu thereof, against surrender~~ have "Beneficial Ownership" of those particular WellPoint shares until the ~~Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value~~ expiration of forty (~~as determined in good faith by the Board~~40) ~~of the securities which such Key Holder or Investor would otherwise receive as of~~ days after the date of ~~the issuance of~~ such ~~securities in exchange for the Key Holder Shares or Investor Shares,~~ acquisition so long as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such ~~Stockholder~~ person does not vote such WellPoint shares during such period and (ii) such participation is not ~~required to agree (unless such Stockholder is a Company officer~~ with the purpose or ~~employee) to any restrictive covenant~~ with the effect of changing or influencing control of WellPoint, nor in connection with or facilitating any transaction having such purpose or effect, including any transaction subject to Rule 13d-3(b) promulgated under the ~~Proposed Sale~~ Exchange Act as such Rule is constituted on the date hereof. (~~including without limitation~~ 5) If WellPoint shall sell shares in a transaction not involving any ~~covenant not~~ public offering, then each purchaser in such offering shall be deemed to ~~compete or covenant not~~ obtain Beneficial Ownership in such offering of the shares purchased by such purchaser but no particular purchaser shall be deemed to ~~solicit customers, employees or suppliers~~ have acquired Beneficial Ownership in such offering of shares purchased by any ~~party~~ other purchaser solely by reason of the fact that all such purchasers are parties to customary agreements relating to the ~~Proposed Sale).~~purchase of equity securities directly from WellPoint in a transaction not involving a public offering, provided that: 9 (A) All the purchasers are persons specified in Rule 13d-1(b)(1)(ii) promulgated under the Exchange Act as such Rule is constituted on the date hereof;

Appears in 1 contract

Sources: License Agreement Addendum (Wellpoint Health Networks Inc /Ca/)

Exceptions. Notwithstanding the foregoing, a Stockholder will not be required to comply with ~~Section 3.2~~ Subsection 6.1 above in connection with any proposed Sale of the Company (the “Proposed Sale”) ), unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such ~~Shares~~Capital Stock, ~~including~~ including, but not limited to to, representations and warranties that (i) the Stockholder holds all right, title and interest in and to the ~~Shares~~ Capital Stock such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective ~~terms~~ terms; and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (ec) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company or its Stockholders in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to to, and does not exceed, the amount of consideration paid to such Stockholder in connection with such Proposed ~~Sale (in accordance with the provisions of the Restated Certificate)~~Sale; (fd) liability shall be limited to such Stockholder’s 's applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed ~~Sale in accordance with the provisions of the Restated Certificate~~Sale) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (ge) upon the consummation of the Proposed ~~Sale, (i)~~ Sale each ~~holder of each class or series of the Company’s stock~~ Stockholder will receive the same form of consideration for ~~their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive~~ the ~~same amount of consideration per share of such series of Preferred~~ Capital Stock as is received by other ~~holders~~ Stockholders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Capital Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the ~~foregoing provisions of this Subsection 3.3(g)~~foregoing, if the consideration to be paid in exchange for ~~the Key Holder Shares or Investor Shares, as applicable~~Capital Stock, pursuant to this ~~Subsection 3.3(g)~~ Section 6 includes any securities and due receipt thereof by ~~any Key Holder or Investor~~ a Stockholder would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any ~~Key Holder or Investor~~ Stockholder of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities ~~Act~~Act or the Securities Act (Ontario), the Company may cause to be paid to ~~any~~ such ~~Key Holder or Investor~~ Stockholder in lieu thereof, against surrender of the ~~Key Holder Shares or Investor Shares~~Capital Stock, as applicable, which would have otherwise been sold by such ~~Key Holder or Investor~~Stockholder, an amount in cash equal to the fair value (as determined in good faith by the ~~Board~~Company) of the securities which such ~~Key Holder or Investor~~ Stockholder would otherwise receive as of the date of the issuance of such securities in exchange for the ~~Key Holder Shares or Investor Shares,~~ Capital Stock as applicable; ~~provided, that, clause (iv) above shall not apply to a SPAC Transaction.~~and (hf) subject to clause (e) above, ~~requiring the same form of consideration to be available to the holders of any single class or series of capital stock,~~ if any ~~holders of any capital stock of the Company are~~ Stockholder is given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all ~~holders of such capital stock~~ Stockholders will be given the same option; ~~and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant~~ provided, however, that nothing in ~~connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).~~this Subsection

Appears in 1 contract

Sources: Share Purchase Agreement

Exceptions. ~~Notwithstanding~~ Not withstanding the foregoing, a Stockholder will not be required to comply with Section ~~3.2~~ 6.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (ec) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (fd) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (ge) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the holders of at least fifty-five percent (55%) of the outstanding shares of Preferred Stock, voting together as a single class on an as-converted basis, elect otherwise by written notice given to the Company at least fifteen (15) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction.and (hf) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 1 contract

Sources: Stockholder Agreement (Luca Technologies Inc)

Exceptions. Notwithstanding the foregoing, a each Stockholder may make (i) Transfers of Subject Securities by will ~~not be required to comply with Section 3.2 above in connection with~~ or for bona fide estate planning purposes so long as such Stockholder \or the trustee of any ~~proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made~~ trust established by such Stockholder ~~in connection~~ maintains full voting power with ~~the Proposed Sale are limited~~ respect to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrancesany transferred Subject Securities, (ii) with respect to such Stockholder’s Company Option Awards which expire (x) on or prior to the ~~obligations~~ termination of the ~~Stockholder~~ Merger Agreement or (y) prior to the Effective Time, Transfers to the Company or cancellations, of the underlying shares of Company Common Stock (A) in ~~connection with~~ payment of the ~~transaction have been duly authorized, if applicable~~exercise price of such Stockholder’s Company Options Awards and (B) in order to satisfy taxes applicable to the exercise of such Stockholder’s Company Option Awards, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such ~~Proposed Sale that certain employees~~ Stockholder’s Company RSU Awards or ~~officers~~ Company PSU Awards, as applicable, Transfers to the Company or cancellations, of the underlying shares of Company ~~be bound by a non-compete~~ Common Stock for the net settlement of such Company RSU Awards or ~~similar restrictive covenant or a release~~ Company PSU Awards in order to satisfy any tax withholding obligation, (iv) Transfers of ~~claims pursuant~~ Subject Securities to ~~the definitive agreements in connection with such Proposed Sale;~~ (cx) ~~such Stockholder and its Affiliates are not required to amend, extend or terminate~~ any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among controlled Affiliate of such Stockholder, so long as such Stockholder or the ~~Company and/or other stockholders~~ trustee of any trust established by such Stockholder maintains full voting power with respect to any transferred Subject Securities or (y) any private equity fund advised by Madison Dearborn Partners, LLC that owns equity interests in such Stockholder, and (v) pledges of Subject Securities as security pursuant to a margin loan or swap/hedge in the ordinary course of business solely if the Stockholders retain their right to vote all of the ~~Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except~~ Subject Securities subject to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (those arrangements in accordance with the provisions of ~~the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to~~ this Agreement, and in each ~~Stockholder in connection with such Proposed Sale in accordance with the provisions~~ case of the ~~Restated Certificate~~foregoing clauses (i) of through (v), so long as (I) any such transferee or pledgee shall agree and deliver to Parent and Merger Sub in writing a ~~negotiated aggregate indemnification amount that applies equally~~ joinder in form and substance reasonably satisfactory to ~~all Stockholders but that in no event exceeds the amount of consideration otherwise payable~~ Parent and Merger Sub pursuant to which such ~~Stockholder in connection~~ transferee agrees to be bound by and comply with ~~such Proposed Sale, except with respect~~ this Agreement at least two (2) Business Days prior to ~~claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon~~ the consummation of any such transfer; and (II) such Transfer is otherwise permitted pursuant to the ~~Proposed Sale~~Company Charter, Company Bylaws, OpCo LLC Agreement and Applicable Law. Notwithstanding any provision of this Agreement to the contrary, (i) each ~~holder~~ Stockholder shall remain responsible for any breach of ~~each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received~~ this Agreement by ~~other holders in respect of their shares of such same class or series of stock,~~ any permitted transferee and (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders Transfers of the ~~Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis~~ equity of the ~~relative liquidation preferences to which~~ Stockholder or the ~~holders~~ equity of ~~each respective series~~ any of ~~Preferred Stock and~~ its direct or indirect equityholders (including purchases or acquisitions by the ~~holders~~ Stockholder of ~~Common Stock are entitled in~~ its own equity from current or former officers, directors, managers or employees of the Stockholder or its Affiliates or the Company or its Subsidiaries) shall not be considered a ~~Deemed Liquidation Event (assuming for this purpose~~ Transfer of Shares that is prohibited hereunder. During the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions term of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities ActAgreement, the Company ~~may cause to be paid to any such Key Holder~~ will not register or ~~Investor in lieu thereof, against surrender of~~ otherwise recognize the ~~Key Holder Shares~~ transfer (book-entry or ~~Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board~~otherwise) of ~~the securities which such Key Holder~~ any Subject Securities or ~~Investor would otherwise receive as of the date of the issuance~~ any certificate or uncertificated interest representing any of such ~~securities~~ Stockholder’s Subject Securities, except as permitted by, and in ~~exchange for the Key Holder Shares or Investor Shares~~accordance with, ~~as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction~~this Section 2. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 1 contract

Sources: Voting and Support Agreement (Global Payments Inc)

Exceptions. Notwithstanding the foregoing, a Stockholder will not be required to comply with Section 3.2 above in connection with any proposed Sale of the Company (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency;[Reserved.] (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (ec) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (fd) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (ge) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the holders of more than the Appropriate Percentage of the shares of Common Stock then issuable upon conversion of the then outstanding shares of Preferred Stock elect otherwise by written notice given to the Company at least five (5) days prior to the effective date of any such Proposed Sale, the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction.and (hf) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 1 contract

Sources: Voting Agreement (Akebia Therapeutics, Inc.)

Exceptions. Notwithstanding ~~the foregoing~~anything contained in Section 8.1.1, ~~a Stockholder will~~ Owner shall not be required to ~~comply with~~ indemnify, protect, defend and hold harmless any Indemnitee pursuant to Section ~~3.2 above~~ 8.1.1 in ~~connection with~~ respect of any ~~proposed Sale~~ Expense of ~~the Company (the “Proposed Sale”) unless~~such Indemnitee: (a) For any ~~representations and warranties~~ Taxes or a loss of Tax benefit, whether or not Owner is required to ~~be made by such Stockholder in connection with the Proposed Sale are limited~~ indemnify therefor pursuant to ~~representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that~~ Section 8.3; PARTICIPATION AGREEMENT (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency;2011-1) (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party Except to the ~~Proposed Sale)~~ extent attributable to acts or ~~any release of claims~~ events occurring prior thereto, acts or events (other than ~~a release in customary form~~ acts or events related to the performance by Owner of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims its obligations pursuant to the ~~definitive agreements~~ terms of the Operative Agreements) that occur after the Trust Indenture is required to be terminated in ~~connection~~ accordance with ~~such Proposed Sale~~Section 11.01 of the Trust Indenture; provided, that nothing in this clause (b) shall be deemed to exclude or limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or for damages from Owner for breach of Owner’s covenants contained in the Operative Agreements or to release Owner from any of its obligations under the Operative Agreements that expressly provide for performance after termination of the Trust Indenture; (c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such ~~Stockholder and its Affiliates are not required to amend, extend~~ Indemnitee of any Equipment Note or ~~terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates~~interest therein, except ~~that~~ for out-of-pocket costs and expenses incurred as a result of any such Transfer pursuant to the ~~Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders~~ exercise of ~~the Company~~remedies under any Operative Agreement; (d) To the ~~Stockholder shall not be liable for~~ extent attributable to the ~~inaccuracy~~ gross negligence or willful misconduct of such Indemnitee or any ~~representation or warranty made by any other Person in connection with the Proposed Sale,~~ related Indemnitee (as defined below) (other than gross negligence or willful misconduct imputed to such person by reason of its interest in the ~~Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by~~ Aircraft or any ~~stockholder of any of identical representations, warranties and covenants provided by all stockholders~~Operative Agreement); (e) To the ~~liability for indemnification, if any,~~ extent attributable to the incorrectness or breach of any representation or warranty of such ~~Stockholder~~ Indemnitee or any related Indemnitee contained in ~~the Proposed Sale and for the inaccuracy of~~ or made pursuant to any ~~representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with~~ Operative Agreement or any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate)Pass Through Agreement; (f) ~~liability shall be limited~~ To the extent attributable to ~~such Stockholder’s applicable share (determined based on~~ the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud failure by such ~~Stockholder~~Indemnitee or any related Indemnitee to perform or observe any agreement, ~~the liability for which need not~~ covenant or condition on its part to be ~~limited as to such Stockholder~~performed or observed in any Operative Agreement or any Pass Through Agreement; (g) ~~upon~~ To the ~~consummation~~ extent attributable to the offer or sale by such Indemnitee or any related Indemnitee of any interest in the Aircraft, the Equipment Notes, the Pass Through Certificates, or any similar interest, in violation of the ~~Proposed Sale~~Securities Act or other applicable federal, state or foreign securities Laws (other than any thereof caused by acts or omissions of Owner); (i) ~~each holder of each class or series~~ With respect to any Indemnitee (other than Indenture Trustee), to the extent attributable to the failure of the ~~Company’s stock will receive~~ Indenture Trustee to distribute funds received and distributable by it in accordance with the ~~same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock~~Trust Indenture, (ii) ~~each holder~~ with respect to any Indemnitee (other than the Subordination Agent), to the extent attributable to the failure of ~~a series of Preferred Stock will receive~~ the ~~same amount of consideration per share of such series of Preferred Stock as is~~ Subordination Agent to distribute funds received and distributable by ~~other holders~~ it in ~~respect of their shares of such same series~~accordance with the Intercreditor Agreement, (iii) ~~each holder~~ with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of ~~Common Stock will receive the same amount of consideration per share of Common Stock as is~~ a Pass Through Trustee to distribute funds received and distributable by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) it in accordance with the ~~Company’s Certificate of Incorporation in effect immediately prior~~ Pass Through Trust Agreements, (iv) with respect to any Indemnitee (other than the Escrow Agent), to the ~~Proposed Sale; provided~~extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with any Escrow Agreement, ~~however, that, notwithstanding~~ (v) with respect to any Indemnitee (other than the ~~foregoing provisions of this Subsection 3.3(g~~Paying Agent), if to the ~~consideration~~ extent attributable to ~~be paid~~ the failure of the Paying Agent to distribute funds received and distributable by it in ~~exchange for~~ accordance with any Escrow Agreement, (vi) to the ~~Key Holder Shares~~ extent attributable to the failure of the Depositary to pay funds payable by it in accordance with any Deposit Agreement, (vii) with respect to Indenture Trustee, to the PARTICIPATION AGREEMENT (2011-1) extent attributable to the negligence or ~~Investor Shares~~willful misconduct of Indenture Trustee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, ~~as applicable~~(viii) with respect to the Subordination Agent, ~~pursuant~~ to ~~this Subsection 3.3(g~~the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (ix) ~~includes any securities~~ with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and ~~due receipt thereof~~ distributable by ~~any Key Holder or Investor would require under applicable law~~ it in accordance with the Pass Through Trust Agreements, (x) with respect to the ~~registration~~ Escrow Agent, to the extent attributable to the negligence or ~~qualification~~ willful misconduct of ~~such securities~~ the Escrow Agent in the payment of funds received and payable by it in accordance with any Escrow Agreement and (xi) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with any Escrow Agreement; (i) Other than during the continuation of an Event of Default, to the extent attributable to the authorization or giving or withholding of any ~~person~~ future amendments, supplements, waivers or consents with respect to any Operative Agreement or Pass Through Agreement other than such as have been requested by Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements); (j) To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Owner; (k) To the extent that it is an ordinary and usual operating or overhead expense; (l) For any Lien attributable to such Indemnitee or any related Indemnitee; (m) If another provision of an Operative Agreement or a ~~broker~~ Pass Through Agreement specifies the extent of Owner’s responsibility or ~~dealer or agent~~ obligation with respect to such ~~securities; or (y)~~ Expense, to the ~~provision to any Key Holder or Investor of any information~~ extent arising from other than failure of Owner to comply with such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder specified responsibility or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicableobligation; ~~provided, that, clause (iv) above shall not apply to a SPAC Transaction.~~or (hn) ~~subject to clause (e) above, requiring~~ To the ~~same form of consideration to be available to the holders of any single class~~ extent incurred by or ~~series of capital stock, if any holders of any capital stock of the Company are given~~ asserted against an ~~option as to the form and amount of consideration to be received~~ Indemnitee as a result of any “prohibited transaction”, within the ~~Proposed Sale~~meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code. For purposes of this Section 8.1, ~~all holders~~ a Person shall be considered a “related” Indemnitee with respect to an Indemnitee if such Person is an Affiliate or employer of such ~~capital stock will be given the same option; and (i)~~ Indemnitee, a director, officer, employee, agent, or servant of such ~~Stockholder is not required to agree (unless~~ Indemnitee or any such ~~Stockholder is~~ Affiliate or a ~~Company officer~~ successor or ~~employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers~~ permitted assignee of any ~~party to~~ of the ~~Proposed Sale)~~foregoing.

Appears in 1 contract

Sources: Participation Agreement (Us Airways Inc)

Exceptions. Notwithstanding ~~the foregoing~~anything contained in Section 8.1.1, ~~a Stockholder will~~ Owner shall not be required to ~~comply with~~ indemnify, protect, defend and hold harmless any Indemnitee pursuant to Section ~~3.2 above~~ 8.1.1 in ~~connection with~~ respect of any ~~proposed Sale~~ Expense of ~~the Company (the “Proposed Sale”) unless~~such Indemnitee: (a) For any ~~representations and warranties~~ Taxes or a loss of Tax benefit, whether or not Owner is required to ~~be made by such Stockholder in connection with the Proposed Sale are limited~~ indemnify therefor pursuant to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agencySection 8.3; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party Except to the ~~Proposed Sale)~~ extent attributable to acts or ~~any release of claims~~ events occurring prior thereto, acts or events (other than ~~a release in customary form~~ acts or events related to the performance by Owner of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims its obligations pursuant to the ~~definitive agreements~~ terms of the Operative Agreements) that occur after the Trust Indenture is required to be terminated in ~~connection~~ accordance with ~~such Proposed Sale~~Section 11.01 of the Trust Indenture; provided, that nothing in this clause (b) shall be deemed to exclude or limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or for damages from Owner for breach of Owner's covenants contained in the Operative Agreements or to release Owner from any of its obligations under the Operative Agreements that expressly provide for performance after termination of the Trust Indenture; (c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such ~~Stockholder and its Affiliates are not required to amend, extend~~ Indemnitee of any Equipment Note or ~~terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates~~interest therein, except ~~that~~ for out-of-pocket costs and expenses incurred as a result of any such Transfer pursuant to the ~~Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders~~ exercise of ~~the Company~~remedies under any Operative Agreement; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders);[Intentionally Omitted] (e) To the ~~liability for indemnification, if any,~~ extent attributable to the gross negligence or willful misconduct of such ~~Stockholder~~ Indemnitee or any related Indemnitee (as defined below) (other than gross negligence or willful misconduct imputed to such person by reason of its interest in the ~~Proposed Sale and for the inaccuracy of~~ Aircraft or any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated CertificateOperative Agreement); (f) ~~liability shall~~ [Intentionally Omitted] (g) To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any related Indemnitee contained in or made pursuant to any Operative Agreement or any Pass Through Agreement; (h) To the extent attributable to the failure by such Indemnitee or any related Indemnitee to perform or observe any agreement, covenant or condition on its part to be ~~limited~~ performed or observed in any Operative Agreement or any Pass Through Agreement; (i) To the extent attributable to the offer or sale by such ~~Stockholder’s~~ Indemnitee or any related Indemnitee of any interest in the Aircraft, the Equipment Notes, the Pass Through Certificates, or any similar interest, in violation of the Securities Act or other applicable ~~share~~ federal, state or foreign securities Laws (~~determined based on~~ other than any thereof caused by acts or omissions of Owner); (i) With respect to any Indemnitee (other than Mortgagee), to the ~~respective proceeds payable~~ extent attributable to ~~each Stockholder in connection with such Proposed Sale~~ the failure of the Mortgagee to distribute funds received and distributable by it in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stockTrust Indenture, (ii) ~~each holder~~ with respect to any Indemnitee (other than the Subordination Agent), to the extent attributable to the failure of ~~a series of Preferred Stock will receive~~ the ~~same amount of consideration per share of such series of Preferred Stock as is~~ Subordination Agent to distribute funds received and distributable by ~~other holders~~ it in ~~respect of their shares of such same series~~accordance with the Intercreditor Agreement, (iii) ~~each holder~~ with respect to any Indemnitee (other than the Pass Through Trustees), to the extent attributable to the failure of ~~Common Stock will receive the same amount of consideration per share of Common Stock as is~~ a Pass Through Trustee to distribute funds received and distributable by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) it in accordance with the ~~Company’s Certificate of Incorporation in effect immediately prior~~ Pass Through Trust Agreements, (iv) with respect to any Indemnitee (other than the Escrow Agent), to the ~~Proposed Sale; provided~~extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with any Escrow Agreement, ~~however, that, notwithstanding~~ (v) with respect to any Indemnitee (other than the ~~foregoing provisions of this Subsection 3.3(g~~Paying Agent), if to the ~~consideration~~ extent attributable to ~~be paid~~ the failure of the Paying Agent to distribute funds received and distributable by it in ~~exchange for~~ accordance with any Escrow Agreement, (vi) to the ~~Key Holder Shares~~ extent attributable to the failure of the Depositary to pay funds payable by it in accordance with any Deposit Agreement, (vii) with respect to Mortgagee, to the extent attributable to the negligence or ~~Investor Shares~~willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, ~~as applicable~~(viii) with respect to the Subordination Agent, ~~pursuant~~ to ~~this Subsection 3.3(g~~the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (ix) ~~includes any securities~~ with respect to the Pass Through Trustees, to the extent attributable to the negligence or willful misconduct of a Pass Through Trustee in the distribution of funds received and ~~due receipt thereof~~ distributable by ~~any Key Holder or Investor would require under applicable law~~ it in accordance with the Pass Through Trust Agreements, (x) with respect to the ~~registration~~ Escrow Agent, to the extent attributable to the negligence or ~~qualification~~ willful misconduct of ~~such securities~~ the Escrow Agent in the payment of funds received and payable by it in accordance with any Escrow Agreement and (xi) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with any Escrow Agreement. (k) Other than during the continuation of an Event of Default, to the extent attributable to the authorization or giving or withholding of any ~~person~~ future amendments, supplements, waivers or consents with respect to any Operative Agreement or Pass Through Agreement other than such as have been requested by Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements); (l) To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Owner; (m) To the extent that it is an ordinary and usual operating or overhead expense; (n) [Intentionally Omitted] (o) For any Lien attributable to such Indemnitee or any related Indemnitee; (p) If another provision of an Operative Agreement or a ~~broker~~ Pass Through Agreement specifies the extent of Owner's responsibility or ~~dealer or agent~~ obligation with respect to such ~~securities; or (y)~~ Expense, to the ~~provision to any Key Holder or Investor of any information~~ extent arising from other than failure of Owner to comply with such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder specified responsibility or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicableobligation; ~~provided, that, clause (iv) above shall not apply to a SPAC Transaction.~~or (hq) ~~subject to clause (e) above, requiring~~ To the ~~same form of consideration to be available to the holders of any single class~~ extent incurred by or ~~series of capital stock, if any holders of any capital stock of the Company are given~~ asserted against an ~~option as to the form and amount of consideration to be received~~ Indemnitee as a result of any "prohibited transaction", within the ~~Proposed Sale~~meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code. For purposes of this Section 8.1, ~~all holders~~ a Person shall be considered a "related" Indemnitee with respect to an Indemnitee if such Person is an Affiliate or employer of such ~~capital stock will be given the same option; and (i)~~ Indemnitee, a director, officer, employee, agent, or servant of such ~~Stockholder is not required to agree (unless~~ Indemnitee or any such ~~Stockholder is~~ Affiliate or a ~~Company officer~~ successor or ~~employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers~~ permitted assignee of any ~~party to~~ of the ~~Proposed Sale)~~foregoing.

Appears in 1 contract

Sources: Participation Agreement (Continental Airlines Inc /De/)

Exceptions. Notwithstanding ~~the foregoing~~Section 13.1, ~~a Stockholder will not be required~~ any party hereto may disclose any Confidential Information: (a) to ~~comply with Section 3.2 above~~ any Governmental Entity in connection with applications for approval of the transactions contemplated hereby and the other Transaction Documents (or, in the case of any ~~proposed Sale~~ regulated Affiliate of a Member, in connection with audits by the applicable Governmental Entities), (b) to financial institutions in connection with financings of the transactions contemplated hereby, (c) in the case of any Member, (i) to a bona fide potential Transferee if such Member desires to undertake any Transfer of its Membership Interests permitted by this Agreement, (ii) to its stockholders, limited partners, members or other equityholders, as the case may be, all materials made available to such Member pursuant to the terms of this Agreement and (iii) to its indirect stockholders, limited partners, members or other equityholders, as the case may be, so long as the Confidential Information disclosed to such Persons is limited to the materials delivered to such party pursuant to Section 4.5(a), provided that (A) in the case of subclauses (i), (ii) and (iii) of this clause (c), prior to the disclosure of any Confidential Information, such Person shall execute an agreement containing substantially the terms set forth in Section 13.1 and this Section 13.2, and (B) in the case of clauses (ii) and (iii) above, the disclosure of Confidential Information relating to commercial transactions or commercial relationships of the Company ~~(the “Proposed Sale”) unless: (a) any representations~~ and ~~warranties~~ its Subsidiaries shall be strictly limited to ~~be made by~~ such ~~Stockholder~~ Persons who have an actual need to know such information in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and administration of their equity interest in ~~and to the Shares~~ such ~~Stockholder purports to hold, free and clear of all liens and encumbrances~~Member, (iid) ~~the obligations of the Stockholder~~ to any rating or similar agency in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach its analysis or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers review of the Company ~~be bound by a non-compete~~ or ~~similar restrictive covenant or a release~~ any of ~~claims pursuant~~ its Subsidiaries, and (e) to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person ~~in connection with the Proposed Sale~~if such party becomes compelled by Law (including by deposition, ~~other than the Company (except~~ interrogatory, request for documents, subpoena, civil investigative demand, mandatory provision of Law, regulation or stock exchange rule) to ~~the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants~~ disclose any of the ~~Company as well as breach by any stockholder of any of identical representations~~Confidential Information. In addition, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except each Member may report to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transaction. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).its

Appears in 1 contract

Sources: Limited Liability Company Operating Agreement (Gmac LLC)

Exceptions. Notwithstanding ~~the foregoing~~anything contained in Section 8.1.1, ~~a Stockholder will~~ Owner shall not be required to ~~comply with~~ indemnify, protect, defend and hold harmless any Indemnitee pursuant to Section ~~3.2 above~~ 8.1.1 in ~~connection with~~ respect of any ~~proposed Sale~~ Expense of ~~the Company (the “Proposed Sale”) unless~~such Indemnitee: (a) For any ~~representations and warranties~~ Taxes or a loss of Tax benefit, whether or not Owner is required to ~~be made by such Stockholder in connection with the Proposed Sale are limited~~ indemnify therefor pursuant to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances, (ii) the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable, (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agencySection 8.3; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party Except to the ~~Proposed Sale)~~ extent attributable to acts or ~~any release of claims~~ events occurring prior thereto, acts or events (other than ~~a release in customary form~~ acts or events related to the performance by Owner of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims its obligations pursuant to the ~~definitive agreements~~ terms of the Operative Agreements) that occur after the Trust Indenture is required to be terminated in ~~connection~~ accordance with ~~such Proposed Sale~~Section 11.01 of the Trust Indenture; provided, that nothing in this clause (b) shall be deemed to exclude or limit any claim that any Indemnitee may have under applicable Law by reason of an Event of Default or for damages from Owner for breach of Owner’s covenants contained in the Operative Agreements or to release Owner from any of its obligations under the Operative Agreements that expressly provide for performance after termination of the Trust Indenture; (c) To the extent attributable to any Transfer (voluntary or involuntary) by or on behalf of such ~~Stockholder and its Affiliates are not required to amend, extend~~ Indemnitee of any Equipment Note or ~~terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates~~interest therein, except ~~that~~ for out-of-pocket costs and expenses incurred as a result of any such Transfer pursuant to the ~~Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders~~ exercise of ~~the Company~~remedies under any Operative Agreement; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders);[Intentionally Omitted] (e) To the ~~liability for indemnification, if any,~~ extent attributable to the gross negligence or willful misconduct of such ~~Stockholder~~ Indemnitee or any related Indemnitee (as defined below) (other than gross negligence or willful misconduct imputed to such person by reason of its interest in the ~~Proposed Sale and for the inaccuracy of~~ Aircraft or any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated CertificateOperative Agreement); (f) ~~liability shall~~ [Intentionally Omitted] (g) To the extent attributable to the incorrectness or breach of any representation or warranty of such Indemnitee or any related Indemnitee contained in or made pursuant to any Operative Agreement or any Pass Through Agreement; (h) To the extent attributable to the failure by such Indemnitee or any related Indemnitee to perform or observe any agreement, covenant or condition on its part to be ~~limited~~ performed or observed in any Operative Agreement or any Pass Through Agreement; (i) To the extent attributable to the offer or sale by such ~~Stockholder’s~~ Indemnitee or any related Indemnitee of any interest in the Aircraft, the Equipment Notes, the Pass Through Certificates, or any similar interest, in violation of the Securities Act or other applicable ~~share~~ federal, state or foreign securities Laws (~~determined based on~~ other than any thereof caused by acts or omissions of Owner); (i) With respect to any Indemnitee (other than Mortgagee), to the ~~respective proceeds payable~~ extent attributable to ~~each Stockholder in connection with such Proposed Sale~~ the failure of the Mortgagee to distribute funds received and distributable by it in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stockTrust Indenture, (ii) ~~each holder~~ with respect to any Indemnitee (other than the Subordination Agent), to the extent attributable to the failure of ~~a series of Preferred Stock will receive~~ the ~~same amount of consideration per share of such series of Preferred Stock as is~~ Subordination Agent to distribute funds received and distributable by ~~other holders~~ it in ~~respect of their shares of such same series~~accordance with the Intercreditor Agreement, (iii) ~~each holder of Common Stock will receive~~ with respect to any Indemnitee (other than the ~~same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock~~Pass Through Trustee), ~~and (iv) unless~~ to the extent attributable to the ~~aggregate consideration receivable by all holders~~ failure of the ~~Preferred Stock~~ Pass Through Trustee to distribute funds received and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) distributable by it in accordance with the ~~Company’s Certificate of Incorporation in effect immediately prior~~ Pass Through Trust Agreement, (iv) with respect to any Indemnitee (other than the Escrow Agent), to the ~~Proposed Sale; provided~~extent attributable to the failure of the Escrow Agent to pay funds received and payable by it in accordance with the Escrow Agreement, ~~however, that, notwithstanding~~ (v) with respect to any Indemnitee (other than the ~~foregoing provisions of this Subsection 3.3(g~~Paying Agent), if to the ~~consideration~~ extent attributable to ~~be paid~~ the failure of the Paying Agent to distribute funds received and distributable by it in ~~exchange for~~ accordance with the ~~Key Holder Shares~~ Escrow Agreement, (vi) to the extent attributable to the failure of the Depositary to pay funds payable by it in accordance with the Deposit Agreement, (vii) with respect to Mortgagee, to the extent attributable to the negligence or ~~Investor Shares~~willful misconduct of Mortgagee in the distribution of funds received and distributable by it in accordance with the Trust Indenture, ~~as applicable~~(viii) with respect to the Subordination Agent, ~~pursuant~~ to ~~this Subsection 3.3(g~~the extent attributable to the negligence or willful misconduct of the Subordination Agent in the distribution of funds received and distributable by it in accordance with the Intercreditor Agreement, (ix) ~~includes any securities~~ with respect to the Pass Through Trustee, to the extent attributable to the negligence or willful misconduct of the Pass Through Trustee in the distribution of funds received and ~~due receipt thereof~~ distributable by ~~any Key Holder or Investor would require under applicable law~~ it in accordance with the Pass Through Trust Agreement, (x) with respect to the ~~registration~~ Escrow Agent, to the extent attributable to the negligence or ~~qualification~~ willful misconduct of ~~such securities~~ the Escrow Agent in the payment of funds received and payable by it in accordance with the Escrow Agreement and (xi) with respect to the Paying Agent, to the extent attributable to the negligence or willful misconduct of the Paying Agent in the distribution of funds received and distributable by it in accordance with the Escrow Agreement; (k) Other than during the continuation of an Event of Default, to the extent attributable to the authorization or giving or withholding of any ~~person~~ future amendments, supplements, waivers or consents with respect to any Operative Agreement or Pass Through Agreement other than such as have been requested by Owner or as are required by or made pursuant to the terms of the Operative Agreements or Pass Through Agreements (unless such requirement results from the actions of an Indemnitee not required by or made pursuant to the Operative Agreements or the Pass Through Agreements); (l) To the extent attributable to any amount which any Indemnitee expressly agrees to pay or such Indemnitee expressly agrees shall not be paid by or be reimbursed by Owner; (m) To the extent that it is an ordinary and usual operating or overhead expense; (n) [Intentionally Omitted] (o) For any Lien attributable to such Indemnitee or any related Indemnitee; (p) If another provision of an Operative Agreement or a ~~broker~~ Pass Through Agreement specifies the extent of Owner’s responsibility or ~~dealer or agent~~ obligation with respect to such ~~securities; or (y)~~ Expense, to the ~~provision to any Key Holder or Investor of any information~~ extent arising from other than failure of Owner to comply with such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder specified responsibility or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicableobligation; ~~provided, that, clause (iv) above shall not apply to a SPAC Transaction.~~or (hq) ~~subject to clause (e) above, requiring~~ To the ~~same form of consideration to be available to the holders of any single class~~ extent incurred by or ~~series of capital stock, if any holders of any capital stock of the Company are given~~ asserted against an ~~option as to the form and amount of consideration to be received~~ Indemnitee as a result of any "prohibited transaction", within the ~~Proposed Sale~~meaning of Section 406 of ERISA or Section 4975(c)(1) of the Code. For purposes of this Section 8.1, ~~all holders~~ a Person shall be considered a "related" Indemnitee with respect to an Indemnitee if such Person is an Affiliate or employer of such ~~capital stock will be given the same option; and (i)~~ Indemnitee, a director, officer, employee, agent, or servant of such ~~Stockholder is not required to agree (unless~~ Indemnitee or any such ~~Stockholder is~~ Affiliate or a ~~Company officer~~ successor or ~~employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers~~ permitted assignee of any ~~party to~~ of the ~~Proposed Sale)~~foregoing.

Appears in 1 contract

Sources: Participation Agreement (Continental Airlines Inc /De/)

Exceptions. ~~Notwithstanding~~ Any other provision herein to the ~~foregoing~~contrary notwithstanding, ~~a Stockholder will~~ the Company shall not be ~~required~~ obligated pursuant to ~~comply with Section 3.2 above in connection with any proposed Sale~~ the terms of ~~the Company (the “Proposed Sale”) unless~~this Agreement: a. To indemnify or advance expenses to the Indemnitee with respect to proceedings or claims initiated or brought voluntarily by the Indemnitee and not by way of defense, unless (ai) ~~any representations and warranties~~ such indemnification or advancement is expressly required to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that (i) the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbranceslaw, (ii) the ~~obligations of~~ proceeding was authorized by the ~~Stockholder in connection with the transaction have been duly authorized, if applicable~~Board, (iii) ~~the documents to be entered into~~ such indemnification or advancement is provided by the ~~Stockholder have been duly executed by the Stockholder and delivered~~ Company, in its sole discretion, pursuant to the ~~acquirer and are enforceable against~~ powers vested in the ~~Stockholder in accordance with their respective terms and~~ Company under the PABCL or (iv) ~~neither~~ the ~~execution and delivery of documents~~ proceeding is brought to ~~be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause~~ establish or enforce a ~~breach~~ right to indemnification or ~~violation of the terms of~~ advancement under this Agreement or any ~~agreement,~~ other statute or law or ~~judgment, order or decree of any court or governmental agency~~otherwise as required under the PABCL; ~~(b) such Stockholder shall have no obligation to execute~~ b. To indemnify the Indemnitee for any liabilities or ~~otherwise agree to any restrictive covenant in connection with~~ expenses incurred by the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement Indemnitee with respect to any proceeding instituted by the Indemnitee to enforce or interpret this Agreement, if a court of competent jurisdiction determines that each of the material assertions made by the Indemnitee in such ~~Proposed Sale~~ proceeding was not made in good faith or was frivolous; c. To indemnify the Indemnitee under this Agreement for any amounts paid in settlement of a proceeding unless the Company consents to such settlement or the Company unreasonably withholds such consent; d. To indemnify the Indemnitee under this Agreement for any expenses incurred on account of any act of failure to act of the Indemnitee which is finally adjudged by a court or other body of competent jurisdiction to have constituted willful misconduct or recklessness. For purposes of the preceding sentence, a finding by a court or other body of competent jurisdiction that ~~certain employees~~ an act or ~~officers~~ failure to act of the Indemnitee or some other agent of the Company ~~be bound by~~ constitutes "misconduct" or words of like import shall not, of itself, create a ~~non-compete~~ presumption that the Indemnitee has engaged in willful misconduct or ~~similar restrictive covenant~~ recklessness under this Agreement, the Company's Articles of Incorporation, the Company's bylaws or ~~a release of claims pursuant to~~ under the ~~definitive agreements in connection with such Proposed Sale~~PABCL; ~~(c)~~ e. To indemnify the Indemnitee under this Agreement if a court of competent jurisdiction finally adjudges that such ~~Stockholder and its Affiliates are not required to amend~~indemnification is illegal, ~~extend or terminate any contractual or other relationship with the Company~~including, ~~the acquirer or their respective Affiliates~~without ___________Initials Initials____________ limitation, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except to the extent that funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders); (e) the liability for indemnification, if any, virtue of such ~~Stockholder~~ indemnification being in ~~the Proposed Sale and for the inaccuracy~~ violation of public policy or any ~~representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except to the extent that funds may be paid out~~ provision of an escrow established to cover breach of representations, warranties and covenants of the Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders), and is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with the provisions of the Restated Certificate); (f) liability shall be limited to such Stockholder’s applicable share (determined based on the respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class or series of the Company’s stock will receive the same form of consideration for their shares of such class or series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive the same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC Transactionlaw. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 1 contract

Sources: Indemnity Agreement (Interdigital Communications Corp)

Exceptions. Notwithstanding any other provision of this Agreement other than subsection 3(a) above, and subject to the ~~foregoing~~terms of Section 3(a) above, in the event that BAC or any of its Affiliates agrees to acquire any entity, or is acquired by any entity, whether in the form of a ~~Stockholder will~~ merger, stock purchase, purchase and assumption, collection of a loan or otherwise, BAC or its Affiliate (or any acquiring entity or its Affiliates, if applicable) shall be entitled to consummate such acquisition, continue to operate any lines of business in which such entity or its subsidiaries were engaged at the time of such acquisition, and expand such entity at a rate of growth in loan originations not ~~be required~~ to ~~comply with~~ exceed 7% per annum, without regard to any restrictions otherwise imposed by this Agreement; provided that the provisions of Section ~~3.2 above in connection with any proposed Sale of the Company~~ 1 (the “Proposed Sale”) unless: (a) any representations and warranties to be made by such Stockholder in connection with the Proposed Sale are limited to representations and warranties related to authority, ownership and the ability to convey title to such Shares, including but not limited to representations and warranties that other than (i) ~~the Stockholder holds all right, title and interest in and to the Shares such Stockholder purports to hold, free and clear of all liens and encumbrances~~section 1(c), (ii) ~~the obligations of the Stockholder in connection with the transaction have been duly authorized, if applicable,~~ section 1(f) (iii) the documents to be entered into by the Stockholder have been duly executed by the Stockholder and delivered to the acquirer and are enforceable against the Stockholder in accordance with their respective terms and (iv) neither the execution and delivery of documents to be entered into in connection with the transaction, nor the performance of the Stockholder’s obligations thereunder, will cause a breach or violation of the terms of any agreement, law or judgment, order or decree of any court or governmental agency; (b) such Stockholder shall have no obligation to execute or otherwise agree to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale) or any release of claims other than a release in customary form of claims arising solely in such Stockholder’s capacity as a stockholder of the Company; provided that, the foregoing shall not limit any requirement contained in a definitive agreement with respect to such Proposed Sale that certain employees or officers of the Company be bound by a non-compete or similar restrictive covenant or a release of claims pursuant to the definitive agreements in connection with such Proposed Sale; (c) such Stockholder and its Affiliates are not required to amend, extend or terminate any contractual or other relationship with the Company, the acquirer or their respective Affiliates, except that the Stockholder may be required to agree to terminate the investment-related documents between or among such Stockholder, the Company and/or other stockholders of the Company; (d) the Stockholder shall not be liable for the inaccuracy of any representation or warranty made by any other Person in connection with the Proposed Sale, other than the Company (except but only to the extent that ~~funds may be paid out of an escrow established to cover breach of representations, warranties and covenants of~~ the ~~Company as well as breach by any stockholder~~ Restricted Business of any ~~of identical representations~~acquired or acquiring entity is merged with BAMG), ~~warranties~~ and ~~covenants provided by all stockholders);~~ (eiii) the liability for indemnification, if any, of such Stockholder in the Proposed Sale and for the inaccuracy of any representations and warranties made by the Company in connection with such Proposed Sale, is several and not joint with any other Person (except section 1(g) to the extent ~~that funds may be paid out of an escrow established~~ inconsistent with the foregoing) shall continue to ~~cover breach of representations, warranties~~ apply to Purchaser and ~~covenants of~~ its Affiliates and BAC and its Affiliates (including any acquired or acquiring entity) during the ~~Company as well as breach by any stockholder of any of identical representations, warranties and covenants provided by all stockholders)~~Non-Solicitation Period, and ~~is pro rata in proportion to the amount of consideration paid to such Stockholder in connection with such Proposed Sale (in accordance with~~ the provisions of Section 2 shall continue to apply to the ~~Restated Certificate);~~ Referring Branches (fbut not to any other branches or offices of any acquired or acquiring entity) ~~liability~~ during the Referral Term; and provided further, that any acquired or acquiring entity shall not, during the Non-Solicitation Period, conduct any Restricted Business under any Excluded Name or through any of the Referring Branches; and provided further that, BAC or its Affiliate shall be ~~limited~~ entitled to continue to operate such ~~Stockholder’s applicable share (determined based on~~ Restricted Business only if BAC shall have delivered to Purchaser a certificate, executed by BAC's chief executive officer or chief financial officer, certifying that the ~~respective proceeds payable to each Stockholder in connection with such Proposed Sale in accordance with the provisions~~ primary purpose of the Restated Certificate) of a negotiated aggregate indemnification amount that applies equally to all Stockholders but that in no event exceeds the amount of consideration otherwise payable to such Stockholder in connection with such Proposed Sale, except with respect to claims related to fraud by such Stockholder, the liability for which need not be limited as to such Stockholder; (g) upon the consummation of the Proposed Sale, (i) each holder of each class BAC's or ~~series of the Company’s stock will receive the same form of consideration for their shares~~ its Affiliate's acquisition of such ~~class~~ entity was not the re-entry by BAC or ~~series as is received by other holders in respect of their shares of such same class or series of stock, (ii) each holder of a series of Preferred Stock will receive~~ its Affiliate into the ~~same amount of consideration per share of such series of Preferred Stock as is received by other holders in respect of their shares of such same series, (iii) each holder of Common Stock will receive~~ Restricted Business during the same amount of consideration per share of Common Stock as is received by other holders in respect of their shares of Common Stock, and (iv) unless the the aggregate consideration receivable by all holders of the Preferred Stock and Common Stock shall be allocated among the holders of Preferred Stock and Common Stock on the basis of the relative liquidation preferences to which the holders of each respective series of Preferred Stock and the holders of Common Stock are entitled in a Deemed Liquidation Event (assuming for this purpose that the Proposed Sale is a Deemed Liquidation Event) in accordance with the Company’s Certificate of Incorporation in effect immediately prior to the Proposed Sale; provided, however, that, notwithstanding the foregoing provisions of this Subsection 3.3(g), if the consideration to be paid in exchange for the Key Holder Shares or Investor Shares, as applicable, pursuant to this Subsection 3.3(g) includes any securities and due receipt thereof by any Key Holder or Investor would require under applicable law (x) the registration or qualification of such securities or of any person as a broker or dealer or agent with respect to such securities; or (y) the provision to any Key Holder or Investor of any information other than such information as a prudent issuer would generally furnish in an offering made solely to “accredited investors” as defined in Regulation D promulgated under the Securities Act, the Company may cause to be paid to any such Key Holder or Investor in lieu thereof, against surrender of the Key Holder Shares or Investor Shares, as applicable, which would have otherwise been sold by such Key Holder or Investor, an amount in cash equal to the fair value (as determined in good faith by the Board) of the securities which such Key Holder or Investor would otherwise receive as of the date of the issuance of such securities in exchange for the Key Holder Shares or Investor Shares, as applicable; provided, that, clause (iv) above shall not apply to a SPAC TransactionNon-Solicitation Period. (h) subject to clause (e) above, requiring the same form of consideration to be available to the holders of any single class or series of capital stock, if any holders of any capital stock of the Company are given an option as to the form and amount of consideration to be received as a result of the Proposed Sale, all holders of such capital stock will be given the same option; and (i) such Stockholder is not required to agree (unless such Stockholder is a Company officer or employee) to any restrictive covenant in connection with the Proposed Sale (including without limitation any covenant not to compete or covenant not to solicit customers, employees or suppliers of any party to the Proposed Sale).

Appears in 1 contract

Sources: Non Solicitation and Referral Agreement (Greenpoint Financial Corp)

Common use of Exceptions Clause in Contracts