Founders’ Guarantee Clause Samples
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Founders’ Guarantee. The Founder and the Founder Holdco hereby unconditionally and irrevocably guarantees, as a continuing obligation, the full and punctual payment and due performance by the Company of its obligation under this Agreement and the Notes. If and to the extent the Company has failed to pay any monies due and payable to the Purchaser under any Note, whether at their scheduled due date, upon acceleration, termination or otherwise, the Founder and the Founder Holdco shall promptly pay such monies to the Purchaser on demand and in currency as set forth under the Notes. The Founder and the Founder Holdco’s obligations hereunder shall be a continuing guarantee on a joint and several basis, and shall remain in full force and effect until the Company has fully and properly performed all its obligations under this Agreement and the Notes, notwithstanding the insolvency or liquidation or any incapacity or change in the constitution or status of the Company. This is a guarantee of payment, and not merely of collection. The Founder and the Founder Holdco further agree to pay all costs, fees and expenses (including, without limitation, reasonable fees of outside counsel) incurred by the Purchaser in connection with enforcing or exercising its rights hereunder or arising from any breach by the Founder and the Founder Holdco of the provisions hereof. In no event shall the Purchaser be obligated to take any action, obtain any judgment or file any claim prior to enforcing the guarantee provided hereunder. The Purchaser’s rights under this Section 6.1 shall be in addition to, but not in substitution for, any security interest, guarantee or other security or right or remedy now or at any time hereafter held by or available to the Purchaser.
Founders’ Guarantee. Subject to Section 10.1, in consideration of the Investor entering into this Agreement, the Founder hereby unconditionally and irrevocably guarantees, as primary obligor and not merely a surety, to the Investor that so long as the Founder has management control over the Group Companies, whether directly or indirectly, the due and punctual performance and observance will be conducted by each of the Company, the PRC Subsidiaries, the PRC Affiliates and ▇▇▇ Smart, in each case, of all its respective obligations, commitments, undertakings, warranties, indemnities and covenants under or pursuant to this Agreement and agrees to fully and unconditionally indemnify the Indemnitees against all losses, damages, costs and expenses (including legal costs and expenses) which the Indemnitees may suffer through or arising from any breach by any of the Company, the PRC Subsidiaries, the PRC Affiliates and ▇▇▇ Smart. The liability of the Company, the PRC Subsidiaries, the PRC Affiliates and ▇▇▇ Smart (as the case may be) as aforesaid shall not be released or diminished by any arrangements or alterations of terms (whether of this Agreement, or otherwise) or any forbearance, neglect or delay in seeking performance of the obligations hereby imposed or any granting of time for such performance.
Founders’ Guarantee. In consideration of the Series C-3 Purchaser’s entering into this Agreement, each of the Founders, as a shareholder or director of any Group Companies (as the case may be), hereby unconditionally and irrevocably guarantees to the Series C-3 Purchaser the due and punctual performance and observance by each of the Founder Holding Companies and the Group Companies, of its respective obligations, commitments, undertakings, warranties, indemnities and covenants under or pursuant to the Transaction Documents and agrees to fully and unconditionally indemnify the Indemnified Parties against all Damages which the Indemnified Parties may suffer through or arising from any breach by any of the Founder Holding Companies and the Group Companies. The liability of the Founder Holding Companies and the Group Companies (as the case may be) as aforesaid shall not be released or diminished by any arrangements or alterations of terms (whether of this Agreement, or otherwise) or any forbearance, neglect or delay in seeking performance of the obligations hereby imposed or any granting of time for such performance. Notwithstanding anything to the contrary, in any event but absent fraud, gross negligence, intentional misrepresentation and willful misconduct on the part of the Founders, the liability for the Founders shall not exceed the greater of (i) the then market value of Founders’ direct and indirect equity interests in the Company; or (ii) the amount equal to the aggregate purchase price for the Series A-1 Preferred Shares, the Series A-2 Preferred Shares, the Series B-1 Preferred Shares, the Series B-2 Preferred Shares, the Series B-3 Preferred Shares, the Series B-4 Preferred Shares, the Series C-1 Preferred Shares, the Series C-2 Preferred Shares and the Series C-3 Purchased Shares.
Founders’ Guarantee. (a) The Founder hereby undertakes to guarantee the performance of or compliance with any covenant, agreement or obligation contained herein by the Company, the BVI Subsidiary, the PRC Subsidiary or any Ordinary Shareholder, and shall be liable to the Investors only (i) after all remedies against the Company, the BVI Subsidiary, the PRC Subsidiary and each of the Ordinary Shareholders (other than Smart Create) have been exhausted, and (ii) if and to the extent that such remedies obtained by the Investors are insufficient to cover the damages claimed by the Investors.
(b) The Founder's liability under this Section 9.1(b) hereof shall not be limited in amount.
(c) The aggregate liability of the Founder under this Section 9.2 shall be limited to US$10,000,000. All liabilities (other than in respect of any pending claims) of the Founder under this Section 9.2 will terminate on the earlier of (i) the completion of the Qualified IPO (as defined in the Shareholders Agreement); and (ii) the full redemption of all the Series A Preferred Shares held by the Investors pursuant to the Articles of Association of the Company.
(d) Nothing in this Section 9.2 shall have the effect of limiting or restricting any liability resulting from or arising out of any fraud.